In its decision 1C_214/2016 of March 22, 2017 the Federal Supreme Court was asked to rule in a case where a former UBS executive filed a complaint for illegally being entered in the so-called “Watchlist” processed by the Swiss Financial Market Supervisory Authority FINMA. The Supreme Court upheld the bank officer’s complaint.

According to art. 1 of the FINMA Ordinance on Data Processing, FINMA is entitled to collect data on persons who cannot guarantee for a proper and rightful business conduct or whose proper and rightful business conduct is uncertain. The purpose of such “Watchlist” is to ensure that only individuals who meet the proper business conduct test are involved in the strategic governance or executive management of or hold significant participations in FINMA authorised financial institutions.

The Federal Supreme Court acknowledged that the information on the bank executive gathered in the “Watchlist” constituted a serious interference with the constitutional right to informational self-determination which needs a formal legal basis. Art. 23 of the Swiss Financial Markets Supervisory Act FINMASA in principle serves as such basis. According to this provision, FINMA may as part of its supervisory activity process personal data, including particularly sensitive data and personality profiles. The Federal Supreme Court made it clear, though, that art. 23 FINMASA only covers the processing of data stemming from reliable sources and would not allow the gathering of data emerging from allegations, assumptions or unsubstantiated assertions which was the case in the procedure at hand. Consequently, the Supreme Court ruled that the personal data processed on the bank officer  was to be removed from FINMA’s “Watchlist”.

To read the full article in German, please click here.

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