KGer BL: inad­mis­si­ble invol­vement of third par­ty files in ALE pro­ce­e­dings; evi­dence unusable

The social secu­ri­ty law depart­ment of the KGer BL has in a Judgment of July 28, 2022 (Busi­ness No. 715 21 112/174). deci­ded that an unem­ployment fund at the Cla­ri­fi­ca­ti­on of claims for unem­ployment bene­fits (ALE) is not entit­led to con­sult files from an ALE dos­sier of the claimant’s mother.

In the pre­sent case, the unem­ployment insu­rance fund Basel­land had sub­mit­ted docu­ments from the file of the claimant’s mother after a nega­ti­ve decis­i­on in the appeal pro­ce­e­dings befo­re the KGer BL, in order to pro­ve that in rea­li­ty it was not the mother but her son who was run­ning the com­pa­ny (which exclu­ded a cla­im to ALE).

Art. 33 ATSG pro­vi­des for a duty of con­fi­den­tia­li­ty in a lar­ge part of social secu­ri­ty law. Dis­clo­sure within this frame­work is only per­mit­ted on a legal basis unless an excep­ti­on applies (e.g. con­sent). In the pre­sent case, howe­ver, the­re is no such basis becau­se Art. 97a of the Unem­ployment Insu­rance Act (the par­al­lel pro­vi­si­on to Art. 84a KVG, for exam­p­le) does not per­mit dis­clo­sure in this constellation.

Also Art. 32 ATSG was not appli­ca­ble – alt­hough this pro­vi­si­on pro­vi­des that the admi­ni­stra­ti­ve and judi­cial aut­ho­ri­ties of the Con­fe­de­ra­ti­on and the can­tons, among others, pro­vi­de each other with admi­ni­stra­ti­ve assi­stance, this, accor­ding to the KGer, only con­cerns data of the insu­red per­son and not of third parties:

Pur­su­ant to Art. 32 para. 2 ATSG, the bodies of the indi­vi­du­al social insu­ran­ces pro­vi­de each other with admi­ni­stra­ti­ve assi­stance under the same con­di­ti­ons. Both the admi­ni­stra­ti­ve assi­stance and the admi­ni­stra­ti­ve assi­stance con­cern the dis­clo­sure of data of the insu­red per­son hims­elf and not – as in the case to be asses­sed here – the dis­clo­sure of data of a third person.

The files sub­mit­ted were thus ille­gal­ly obtai­ned evi­dencewhat the Que­sti­on of their usa­bi­li­ty rai­sed. Howe­ver, the­re is no pro­vi­si­on in the social secu­ri­ty pro­ce­e­dings that would expli­ci­t­ly regu­la­te this issue. The KGer the­r­e­fo­re falls back on “gene­ral principles”:

It is the­r­e­fo­re neces­sa­ry to fall back on the gene­ral prin­ci­ples accor­ding to which, accor­ding to case law, the­re is a fun­da­men­tal pro­hi­bi­ti­on on the use of ille­gal­ly obtai­ned evi­dence. Howe­ver, this pro­hi­bi­ti­on is not abso­lu­te. Whe­re, in the sett­le­ment, the­re are over­ri­ding inte­rests in the enforce­ment of public law, evi­dence obtai­ned unlawful­ly may also be used by way of exception.

In the pre­sent case, howe­ver, explo­ita­ti­on was out of the que­sti­on becau­se the data in que­sti­on was Sen­si­ti­ve or wort­hy of spe­cial pro­tec­tion are:

In light of the abo­ve, the use of the ille­gal­ly obtai­ned evi­dence from the ALE file of E. [the mother] is out of the que­sti­on in the pre­sent case. The per­so­nal data in que­sti­on are sen­si­ti­ve infor­ma­ti­on from the pri­va­te sphe­re of the per­sons con­cer­ned, name­ly also for infor­ma­ti­on about their Health sta­tus. Such data are natu­re wort­hy of spe­cial pro­tec­tionIn the pre­sent case, this was done in the con­text of a balan­cing of inte­rests – bet­ween the public inte­rest in ascer­tai­ning the truth and E.’s inte­rest in the non-dis­clo­sure of this data. to be weigh­ted decisi­ve­ly in favor of the inte­rest of the par­ties con­cer­ned is.




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