Federal Administrative Court, Decision C-510/2019 of 15 April 2021

14 May 2021 – In this decision, the Federal Administrative Court had to examine whether the price reduction ordered by the Federal Office of Public Health (FOPH) as part of the triennial review of admission conditions was lawful. In particular, the disputed foreign price comparison (APV) and the possible reduction rate under inclusion of the non-controversial therapeutic cross-comparison (TQV) had to be examined. On the one hand, the appellant argued that the FOPH hardly explained the APV carried out in the contested order. The FOPH merely stated in a descriptive manner which reference price it considered to be correct. There was no discussion of the documents submitted by the appellant. Furthermore, the appellant objected to the fact that the FOPH had not used price-level-adjusted exchange rates for the prices used for comparison.

After careful examination, the court found that in the present case, when determining the foreign comparative prices, the FOPH had inadmissibly restricted the selection of the comparative preparations with a reference to the practice of the FOPH, which, however, can be reconciled neither with the wording of the FDHA Ordinance on Benefits in Compulsory Health Care Insurance (KLV) nor with the explanations in the SL Manual, and had thus undercut its discretion. The appeal was upheld to the extent that the case was referred back to the FOPH for a new decision in accordance with the recitals.

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