The OGer ZH initially ruled in LB150052 v. 8.2.2016 that both the district court and the labor court have jurisdiction in actions brought by bank employees against the delivery of data to the DOJ:
In the present case, the plaintiff relies primarily on Art. 15 DPA. According to the wording of the law, such actions aim to protect the personality and are governed by Articles 28, 28a and 28I of the Civil Code. It is thus clear that such an action extends far beyond the mere employment relationship between the parties and concerns the entire personality of the plaintiff, which is why the subject-matter jurisdiction of the district court is readily given. The lower court, however, examined the claim not only from the point of view of Art. 15 DPA, but also from the point of view of the employment contract, namely Art. 328 and Art. 328b CO (Urk. 38 pp. 23 – 25). This is clearly admissible, because the lower court had to examine the claim under all relevant aspects within the meaning of Art. 57 ZPO. Conversely, it would also have been conceivable to link the same action to the employment contract, which would have resulted in the labor court being responsible for the assessment of the action and would have had to be examined by it in the same way from all points of view. As a result, both the District Court and the Labor Court are competent for actions of the present type.
On the merits, the OGer ZH then sees no overriding public interest within the meaning of DSG 6 II, as long as no systemically important bank is affected:
question of whether the endangerment of a bank in the sense of the above is contrary to the Swiss public interest, it is justified to focus on whether or not the institution in question is to be considered systemically relevant. In its leading decision BGE 137 II 431, issued on July 15, 2011, on the delivery of bank customer data to the U.S. authorities, the Federal Supreme Court also linked the systemic relevance of the bank in question (see BGE 137 II 431 E. 4.1, 4.2, 4.4). The fact that in the context of interest, systemic relevance is the decisive criterion from the point of view of the public interest also results not least from the BankA: As of March 1, 2012, articles 7 to 10a were added to the BankA as the “Fifth Section: Systemically Relevant Banks”, where the decisive evaluations were made by the legislator. According to Art. 7 para. 1 BankA, banks are considered systemically relevant if “their failure would significantly damage the Swiss economy and the Swiss financial system”. Banks that do not meet these requirements are not considered systemically important; therefore, it cannot be assumed that their failure would “significantly damage the Swiss economy and the Swiss financial system. In other words, if a non-systemically important bank fails, the Swiss public interest is not affected.
The OGer ZH also does not see any other justification for the data supply, namely not the enforcement of legal claims in court within the meaning of DSG 6 II lit. d:
The defendant is also able to name authors who support its thesis. This is the case with Livschitz (in: Datenschutzrecht, Basel 2015, Rz 18.79), who believes that “what applies to the court proceedings must also apply to the upstream investigation procedure of the authorities”. This argumentation, which is not further substantiated, however, aims past the wording of the law, which mentions the “enforcement of legal claims in court”. Another author cited by the defendant (Wyss, in: Datenschutzrecht, Basel 2015, Rz 11.92) emphasizes the differences between the continental European and the U.S. judicial systems, in that in the latter the court is merely assigned a “coordinating overall management function” and the procedural material is already collected before the formal court proceedings in the form of pre-discovery proceedings. That may well be so. However, when the law refers to “court” in Art. 6(2)(d) DPA, it assumes a continental European understanding of this term and not a procedure in which data is collected from individuals worthy of protection for any purpose. No European court will collect data for purposes unrelated to the proceedings, as the DoJ intends to do.