IT LAW IN THE SPRING SESSION 2022
Various IT law topics will again be dealt with in the 2022 spring session. Particularly noteworthy are a motion to facilitate digital accounting and another motion calling for a legal basis to support digital flagship projects with a relevant public interest.
IT Law topics in the National Council:
- Amendment of the Federal Act against Unfair Competition (regulation of online platforms for booking accommodation services). According to the Federal Council’s draft, a new Art. 8a Unfair Competition Act (UCA) is intended to prohibit the use of price fixing clauses in agreements with operators of online platforms through which accommodation services can be booked. The Committee for Legal Affairs of the National Council wants to prohibit not only price parity clauses, as envisaged by the Federal Council, but parity clauses in general, i.e. also availability and conditions parity clauses.
- Motion: Facilitate digital accounting. The purpose of this motion is to instruct the Federal Council to amend the Business Records Ordinance (Geschäftsbücherverordnung, GeBüV) and other necessary enactments in order to facilitate the digitization of accounting. It should be possible to store documents on modifiable data carriers without digital signatures or similar procedures, provided that proof of origin and integrity can be provided via the principles of proper accounting in accordance with Art. 957 ss. Code of Obligations. A digital signature of documents or the use of similar procedures shall be voluntary. However, it is unclear whether the GeBüV actually needs to be adapted for this purpose. The Federal Tax Administration does not require a digital signature in its controls.
- Motion: Digital transformation in healthcare. Finally catch up! The purpose of this motion is to instruct the Federal Council to finally make substantial progress in the digital transformation of the healthcare system, taking its cue from the impact of other successfully digitized healthcare systems in the OECD. The Federal Council proposed to reject the motion in August 2021, while the Council of States approved it in September 2021.
IT law topics in the Council of States:
- Motion: Moving Switzerland forward. Push digital lighthouse projects with public interest. This motion asks the Federal Council to create the legal basis to foster digital flagship projects with a public interest. This is to involve start-up funding. The scope of application refers to private projects as well as private-public partnerships that serve a public interest and strengthen Switzerland as a business location. The Federal Council proposes that the motion be accepted.
- Postulate: Use Covid vaccination campaign as an opportunity for the electronic patient dossier. This postulate instructs the Federal Council to examine and report on whether individual electronic patient dossiers (EPD) can be generated from the registered Covid vaccination dossiers and the vaccination certificates of the Confederation and the cantons. With reference to ongoing work at eHealth Suisse and at the Federal Office of Public Health, the Federal Council proposes that the postulate be rejected.
- Motion: Protect our SMEs and public administrations from cyber attacks. This motion instructs the Federal Council to extend the Confederation’s protection against cyber-attacks to the cantons, municipalities and the SME sector. The Federal Council requests that the motion be rejected, pointing out that, taking into account the principle of subsidiarity, responsibility for protection against cyber-attacks cannot be transferred to the Confederation and must remain with the authorities and SMEs themselves.
- Cantonal Initiative: Internet Giants are to be Taxed! With this standing initiative, the Parliament of the Canton of Jura calls on the Federal Assembly to create the legal basis for taxing all business transactions that take place in Switzerland with the GAFAM-BATX giants (GAFAM stands for Google, Amazon, Facebook, Apple, Microsoft, BATX stands for Baidu, Alibaba, Tencent and Xiaomi). The Committee for Economic Affairs and Taxation of the Council of States proposes by 9 to 4 votes not to follow the standing initiative.
- Fail-safe computing power and required transformation of the ICT of MeteoSwiss. With this dispatch (BBl 2021 2161), the Federal Council is proposing to Parliament a commitment credit of 34.3 million and the release of a first tranche of 16.5 million for the establishment of fail-safe computing power and the necessary transformation of the information and communication technology (ICT) of the Federal Office of Meteorology and Climatology (MeteoSwiss). According to the planned operating model, MeteoSwiss will not operate its own computing infrastructure in the long term. The entire application landscape of MeteoSwiss will be transferred to cloud providers internal and external to the federal government. This will enable computing power to be scaled, while at the same time reducing the company’s own server infrastructures. The project thus supports the achievement of the digital transformation target for the federal administration. The National Council unanimously approved the bill in December 2021.
- Motion: Enable digital contract signing on a broad basis. Creation of a digital alternative to signing contracts in person. The purpose of this motion is to instruct the Federal Council to propose an amendment to the legal basis so that, in future, a digitally suitable form that can be verified by text is permitted as an alternative to a handwritten signature when concluding contracts that are simply written. The Federal Council moved to reject the motion in 2019 and the National Council approved it in 2020. In its report of January 20, 2022, the Committee for Legal Affairs of the Council of States unanimously requested that the motion be rejected. The report further states that the Federal Council will review the appropriateness of the formal requirements in the Civil Code and propose adjustments where it proves necessary.