Facts
The Federal Office for Police Matters (BAP) had access to the Central Foreigners Register (ZAR) of the Federal Office for Foreigners Affairs (BFA) and the asylum seeker database system AUPER-2. The Federal Data Protection Commissioner issued recommendations to discontinue these accesses and delete the stored data. When the Federal Department of Justice and Police (Department) rejected these recommendations, the Data Protection Commissioner filed administrative complaints with the Federal Data Protection Commission (Commission).
The Commission took up the complaints and partially revoked the decisions of the Department. The Department then filed an administrative court appeal with the Federal Supreme Court, requesting the annulment of the Commission's decision.
Considerations
The Federal Supreme Court granted the administrative court appeal and annulled the decision of the Commission. It reasoned that the Federal Data Protection Commissioner was not legitimized to file the complaint.
The Federal Supreme Court stated that the Data Protection Commissioner has no right of appeal under Art. 48 para. 1 let. b of the Administrative Procedure Act (VwVG), as the Data Protection Act does not authorize him to do so. Nor is there a right of appeal under Art. 48 para. 1 let. a VwVG, as the Data Protection Commissioner, as a federal administrative agency, is not…