The Parliament has still not completed its deliberation on the revised DPA
10 August 2020 – The Parliament has still not completed its deliberation on the revised DPA. It turns into the next consultation round in September (7 – 25 September 2020) aiming at the clarification of the remaining differences in the current draft.
We have updated the amendments to the drafts of the revised DPA as originally proposed by the Federal Council on 15 September 2017 based on the flags that have been published since then. The updated compilation contains the latest amendments to the drafts based on the Council of States' (CS) most recent decision on the resolution of differences of 2 June 2020, i.e. the current consolidated version. It may be accessed via the following link.
After the completion of the past deliberation phase, the following matters remain subject to debate between the two Chambers of the Parliament:
- Qualification of genetic data as sensitive personal data (art. 4 lit. c E-DPA): The National Council (NC) wants to classify only genetic data that clearly identifies a natural person as sensitive personal data, the Federal Council and the Council of States want to include all genetic data.
- The term “profiling with a high risk” (art. 4 lit. fbis E-DPA): The NC defines this term as profiling leading to sensitive personal data. The CS understands “profiling with a high risk” to be profiling that entails a high risk for the personality or fundamental rights of affected persons by leading to a combination of data that enable an assessment of essential aspects of a natural person's personality.
- Justifications (art. 27 E-DPA): According to the NC, there is no justification if the responsible person processes personal data for credit analysis and thereby processes sensitive personal data and the data is not proportionate or older than ten years. Pursuant to the CS, any profiling with a high risk shall eliminate the responsible person's overriding private interest as a justification. Additionally, in accordance with the Federal Council's proposal, data must be less than five years old.
These matters are to be discussed by both chambers of Parliament in another round of resolution of differences. If no agreement is reached after three rounds, the remaining differences will have to be settled by a conciliation committee in order to achieve a positive outcome of this legislative project.