Federal Administrative Court, Decision C-1464/2017 of 16 December 2019

14 February 2020 – In a recent decision, the Federal Administrative Court partially approved the appeal of a Belgian national regarding the admission of independent exercise of medical activity at the expense of compulsory health care insurance. With its decision, the Court revoked the order of the Department of Safety, Employment und Health (Département de la sécurité, de l’emploi et de la santé “DSES”) of the Canton E. and referred the matter back to the DSES.

The Belgian appellant was admitted on application to exercise independent medical activity at the expense of compulsory health care insurance in Canton D. The same application was rejected in Canton E., as there was no need for medical specialists in the field of plastic and reconstructive surgery. The Federal Administrative Court rejected the claimed discrimination in violation of art. 2 and 13 of the Agreement on the Free Movement of Persons EU/EFTA (Personenfreizügigkeitsabkommen; SR and a violation of the economic freedom by the restriction of admissions according to art. 55a para. 1 of the Health Insurance Act (Bundesgesetz über die Krankenversicherung “HIA”; SR 832.10). The Court held that the prohibition of discrimination is not absolute and can be restricted for reasons of public health. In addition, art. 55a HIA pursues a social policy objective which is compatible with the economic freedom. Furthermore, each Canton may decide on the admission itself independently of the decision of other Cantons.

In addition, the appellant argued that his application had been decided on the basis of insufficient evidence and reasoning. The annexes I and II of the Ordinance on the limitation of the admission of independent service providers for medical activity at the expense of compulsory health care insurance (Verordnung über die Einschränkung der Zulassung von Leistungserbringern zur Tätigkeit zulasten der obligatorischen Krankenversicherung “VEZL”; SR 832.103), which were the basis of the decision, specify a maximum quota of medical specialists which may practice at the expense of the compulsory health care insurance. The DSES had decided that the Cantonal needs were covered, because the quota had already been largely exceeded. Hence, no specific investigation was ordered and no assessment under art. 5 para. 1 and 2 VEZL was made. According to the decision of the Federal Administrative Court, the DSES has to examine whether its order is appropriate in the light of the criteria listed in art. 5 para. 1 lit. b to d VEZL.

For the full decision, see here.