Laws/Regulations directly regulating AI (the “AI Regulations”)
Currently, there are no specific laws, statutory rules, or regulations in Switzerland that directly regulate AI. AI in Switzerland is currently subject to “traditional” laws that are mostly technology-neutral, such as data protection legislation or medical device regulations, and other sector-specific frameworks.
Status of the AI Regulations
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. The Federal Council has instructed the Federal Department of the Environment, Transport, Energy and Communications (DETEC) to identify potential approaches to regulating AI by the end of 2024, with the aim of issuing a mandate for an AI regulatory proposal in 2025.1
Although Switzerland has usually favored a technology-neutral approach with a focus on sectoral rules instead of a horizontal regulation, a report on “Artificial intelligence and international rules” in 2022 found that this approach may cause tensions with the international regulatory framework.2 In any event, it is expected that any future AI regulation in Switzerland will be compatible with international standards to ensure that regulatory rules are not fragmented.
In this context, Switzerland also takes an active role in shaping global AI regulations, such as through discussions within the Council of Europe Committee on Artificial Intelligence.
Other laws affecting AI
There are various laws that do not directly seek to regulate AI but may affect the development or use of AI in Switzerland. A non-exhaustive list includes:
- The revised Federal Act on Data Protection (FADP) entered into force on September 1, 2023 and includes provisions on automated decision-making in relation to personal data3
- Intellectual property laws may affect several aspects of AI development and use (particularly the Copyright Act4 and Patents Act5)
- Civil law (such as the Swiss Civil Code6, Code of Obligations7 or the Product Liability Act8)
- Product safety laws, both general (such as the Product Safety Act9) and sectoral (such as the Therapeutic Products Act10 and Medical Devices Ordinance11)
- Non-discrimination laws in the areas of gender equality and protection of disabled people (Gender Equality Act12 and Disability Discrimination Act13)
- Swiss Criminal Code14
- General human rights legislation (such as the Federal Constitution and Convention15 for the Protection of Human Rights and Fundamental Freedoms)
In addition, there is soft law and guidance from authorities, including guidelines about artificial intelligence for the federal government (2020)16 recommendations from the Swiss Federal Data Protection and Information Commissioner about data processing in relation to AI (2023)17 and expectations from the Swiss Financial Market Supervisory Authority (FINMA) for the use of AI by regulated institutions (FINMA Risk Monitor 2023)18 (see section 6 below for more examples).
Definition of “AI”
As noted above, there are currently no specific laws or policies in Switzerland that directly regulate AI. Accordingly, no definition of AI is currently recognized through Swiss national legislation. As Swiss laws have focused on a technology-neutral regulation, there has been no need for a distinct legal definition.
While AI has been defined in publications by different government bodies (such as the Federal Department of Foreign Affairs’ “Artificial Intelligence and international rules” report of April 202219, or the Federal Council’s “Challenges of Artificial Intelligence” report of December 201920), such definitions have been inconsistent, and it is not possible to draw firm conclusions about future regulation at the time of writing.
Territorial scope
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. Accordingly, there is no specific territorial scope at this stage. However, it should be noted that existing laws, such as the FADP, may apply extraterritorially under conflict-of-laws rules.
Sectoral scope
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. Accordingly, there is no specific sectoral scope at this stage. However:
- The Federal Council has implemented general guidelines to ensure appropriate use of AI in federal departments and agencies, as well as external partners entrusted with governmental tasks including: developing sectoral AI strategies; introducing or adapting specific sectoral regulations; developing or using AI within the Federal Administration; and shaping the international regulatory framework on AI21
- The FADP regulates the processing of personal data, and the Swiss Federal Data Processing and Information Commissioner has expressed expectations in relation to AI (as noted above)
- FINMA has set out requirements in its circulars that may (indirectly) govern the use of AI by supervised institutions (e.g., Circular 2023/01 on “Operational risks and resilience” and Circular 2018/03 on “Outsourcing”). In addition, FINMA has expressed expectations in relation to the use of AI (as noted above)
- The use of AI in medical devices is regulated under the Therapeutic Products Act, the Medical Devices Ordinance and related ordinances22
- The DETEC may grant exceptional authorizations for the testing of autonomous vehicles on public roads based on the Road Traffic Act23
- The Federal Office of Civil Aviation may grant authorizations for autonomous drone operations
Compliance roles
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. Accordingly, there are currently no specific or unique obligations imposed on developers, users, operators and/or deployers of AI systems. There are, however, general requirements for the governance in companies, in particular stock companies, which continue to apply in relation to AI, and additional requirements apply for listed entities.
Core issues that the AI Regulations seek to address
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. Where authorities have expressed expectations, these focus on robustness and reliability, non-discrimination, transparency, governance and accountability.
Risk categorization
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. Although the EU’s risk categorization is mentioned in the “Artificial intelligence and international rules” report by the Federal Council, the report states that Swiss regulation may not be confined to such an approach.24
Key compliance requirements
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. However, the existing legal framework must be observed.
Regulators
As mentioned above, the Federal Council has begun a project to identify a regulatory approach to AI by 2024.25 Such regulation would be subject to the standard legislative procedure. It is unclear whether such regulation would involve a supervisory or regulatory authority, or which authority would exercise any enforcement powers.
However, as indicated above, certain authorities have supervisory and/or regulatory powers under existing laws that do not directly regulate AI but extend to its use in regulated sectors. For example, the Federal Data Protection and Information Commissioner (FDPIC) is the privacy authority and supervises federal data protection regulations. In this capacity, the FDPIC also supervises data protection in the context of AI. Another example is FINMA, which (as noted above) has issued circulars that may apply to the use of AI (although AI is not explicitly mentioned) and has expectations in relation to the use of AI.26 Moreover, FINMA monitors the use of AI in the financial sector and may potentially step in if it determines a regulatory need (although no concrete plans are known).27
In addition, other federal and cantonal governmental bodies address AI and participate in the regulatory processes, for example:
- The Swiss Federal Institute of Intellectual Property has set up a project group to examine questions relating to the impact of AI on intellectual property law, and has started a joint project with the University of Zurich dedicated to AI and intellectual property28
- The Federal Roads Office is assessing the consequences and impacts of automated driving on regulations29
- The Federal Administration has set up the interdepartmental Competence Network for Artificial Intelligence as a central point of contact for AI within the Administration30
- The Canton of Zurich has set up the Innovation Sandbox for AI as a test environment for the implementation of AI projects with collaboration on regulatory issues31
Enforcement powers and penalties
As noted above, there are currently no specific laws or regulations in Switzerland that directly regulate AI. Accordingly, it is currently unclear what enforcement powers the relevant authority will have or what penalties they may impose upon breaches.
As AI is currently governed by “traditional” laws, the regulators may have enforcement powers in relation to breaches of these laws. For instance, the FDPIC may issue binding orders to modify, suspend or discontinue data processing, or to delete personal data (but has no power to impose penalties). Some data protection violations may also be subject to criminal prosecution. In the area of financial market legislation, the FINMA has extensive enforcement tools, including ordering action to restore compliance with the law, industry bans, cease-and-desist orders and activity bans, the disgorgement of profits, withdrawal of authorization, or liquidation of supervised institutions.
1 See here.
2 See here, pages 20 et seq.
3 See the FADP here, article 21.
4 See the Copyright Act here.
5 See the Patents Act here.
6 See the Swiss Civil Code here.
7 See the Code of Obligations here.
8 See the Product Liability Act here.
9 See the Product Safety Act here.
10 See the Therapeutic Products Act here.
11 See the Medical Devices Ordinance here.
12 See the Gender Equality Act here.
13 See the Disability Discrimination Act here.
14 See the Swiss Criminal Code here.
15 See the Federal Constitution here.
16 See here.
17 See here.
18 See here.
19 See here, page 5.
20 See here, page 5.
21 See here.
22 See here.
23 See the Road Traffic Act here, Article 106(5).
24 See here, pages 14 et seq. and page 20.
25 See here.
26 See here.
27 See here.
28 See here.
29 See here.
30 See here.
31 See here.
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