Within the frame­work of the par­lia­men­ta­ry initia­ti­ve 21.443 (“Ordi­nan­ce on the Employment Rela­ti­on­ship of the Head of the Fede­ral Data Pro­tec­tion and Infor­ma­ti­on Com­mis­sio­ner”). of the Natio­nal Council’s Sta­te Poli­cy Com­mit­tee, the employment rela­ti­on­ship of the head of theThe new regu­la­ti­ons govern the posi­ti­on of the head of the FDPIC. This also inclu­des the first adjust­ments to the total­ly revi­sed FADP, which will enter into force on Sep­tem­ber 1, 2023. will, unless the­re should still be delays. The par­lia­men­ta­ry initia­ti­ve was adopted in the Natio­nal Coun­cil on March 16, 2022. was dealt with by the Coun­cil of Sta­tes. As the second Coun­cil, the Coun­cil of Sta­tes appro­ved the cor­re­spon­ding amend­ments to the law and the draft ordi­nan­ce on June 7, 2022.

Initi­al situation

The total revi­si­on of the Data Pro­tec­tion Act (revDSG) chan­ges the future pro­ce­du­re for appoin­ting the Com­mis­sio­ner. Whe­re­as under the cur­rent law the Com­mis­sio­ner is elec­ted by the Fede­ral Coun­cil and the elec­tion must be appro­ved by the United Fede­ral Assem­bly, in future the United Fede­ral Assem­bly will be the com­pe­tent elec­to­ral body (Art. 43 para. 1 revDSG). This is inten­ded to streng­then the inde­pen­dence of the Com­mis­sio­ner and his or her demo­cra­tic legitimacy.

Due to its posi­ti­on as an elec­to­ral body, Par­lia­ment is also respon­si­ble for imple­men­ting Art. 43 revDSG and thus for issuing the imple­men­ting pro­vi­si­ons on the employment rela­ti­on­ship of the Com­mis­sio­ner. For this rea­son, the Natio­nal Council’s Sta­te Poli­cy Com­mit­tee (SPK‑N) deci­ded on 15 April 2021 to car­ry out this work by means of a par­lia­men­ta­ry initia­ti­ve 21.443 (“Ordi­nan­ce on the Employment Rela­ti­on­ship of the Head of the Fede­ral Data Pro­tec­tion and Infor­ma­ti­on Com­mis­sio­ner”). The sister com­mit­tee of the Coun­cil of Sta­tes (SPK‑S) fol­lo­wed up on the initia­ti­ve on April 26, 2021, whereu­pon a draft was pre­pared. On 27 Janu­ary 2022, the SPK‑N reque­sted the Natio­nal Coun­cil to appro­ve the ela­bo­ra­ted draft ordi­nan­ce on the employment rela­ti­on­ship of the head of the FDPIC (Bill 3). In doing so, it also pre­sen­ted addi­tio­nal amend­ments to the revDSG (Bill 1) and the Infor­ma­ti­on Secu­ri­ty Act (ISG; Bill 2). On March 16, 2022, the Natio­nal Coun­cil appro­ved the reso­lu­ti­on slight­ly devia­ting from the ori­gi­nal draft. On June 7, 2022, the Coun­cil of Sta­tes fol­lo­wed suit with its approval.

Spe­ci­fic chan­ges in the revi­sed DPA

At the begin­ning of 2022, the SPK‑N came to the con­clu­si­on that indi­vi­du­al amend­ments to the revDSG were neces­sa­ry. In par­ti­cu­lar, a legal basis should be crea­ted which expli­ci­t­ly aut­ho­ri­zes the Fede­ral Assem­bly to issue the said ordi­nan­ce on the employment rela­ti­on­ship of the appoin­tee (new Art. 43 para. 3bis revDSG). The Com­mis­si­on then pro­po­sed sup­ple­men­ting the pro­vi­si­ons on occu­pa­tio­nal pen­si­on pro­vi­si­on (sup­ple­men­ted Art. 43 para. 3 revDSG), on recu­sal (new Art. 47a revDSG) and on war­ning as a disci­pli­na­ry mea­su­re (new Art. 44a revDSG), as well as the tran­si­tio­nal pro­vi­si­ons con­cer­ning the elec­tion and employment rela­ti­on­ship of the appoin­tee (new Art. 72 para. 2 and Art. 72a revDSG). In addi­ti­on, the pre­vious pro­vi­si­on on the secon­da­ry employment of the Com­mis­sio­ner was adapt­ed in order to dis­tri­bu­te respon­si­bi­li­ties within the Fede­ral Assem­bly in a more prac­ti­ca­ble man­ner (sup­ple­men­ted Art. 47 para. 2 revDSG). Fur­ther­mo­re, the Com­mis­si­on adapts the ter­mi­na­ti­on of the employment rela­ti­on­ship on the initia­ti­ve of the Com­mis­sio­ner (sup­ple­men­ted Art. 44 Para. 2).

Ori­gi­nal­ly, the SPK‑N had also pro­vi­ded in the draft for an exclu­si­on of com­pen­sa­ti­on in the event of ter­mi­na­ti­on of the employment rela­ti­on­ship. Howe­ver, the Natio­nal Coun­cil and Coun­cil of Sta­tes dele­ted this pro­vi­si­on again and fol­lo­wed the opi­ni­on of the Fede­ral Coun­cil. The lat­ter was of the opi­ni­on that the com­mis­sio­ner should be trea­ted in the same way as other per­sons who are elec­ted by the Fede­ral Assem­bly and who have inde­pen­dence, such as the Fede­ral Pro­se­cu­tor or the fede­ral jud­ges of first instance. Accor­ding to the Fede­ral Coun­cil, if the­re were no pos­si­bi­li­ty of sever­ance pay and if the­re were finan­cial con­se­quen­ces in the event of non-re-elec­tion, this would have an influence on the cor­rect super­vi­so­ry acti­vi­ty and would the­r­e­fo­re impair the inde­pen­dence of the appointee.

Ent­ry into force

The revDSG, which was only pas­sed in Sep­tem­ber 2020, is now under­go­ing its first chan­ges even befo­re it comes into force. Prof. Peter Forst­mo­ser would descri­be the­se rapid chan­ges in the law, befo­re the revi­sed law has even come into force, as “Stan­dar­dizati­on in the fast lane” desi­gna­te.

At the same time as the revDSG (inclu­ding the amend­ments from par­lia­men­ta­ry initia­ti­ve 21.443), the ordi­nan­ce on the employment rela­ti­on­ship of the com­mis­sio­ner will also enter into force, unless the­re are delays. As is known, the revDSG is to come into force on Sep­tem­ber 1, 2023. From the plan­ned ent­ry into force on Sep­tem­ber 1, 2023, it may be infer­red that the Fede­ral Coun­cil intends to deci­de on the ent­ry into force in August 2022, and at the latest then the revVDSG must be published.