Federal Administrative Court, Decision C-5675/2018 of 10 August 2021

24 September 2021 – The object of objection in this dispute was the decision of the Federal Office of Public Health (FOPH), by which a reimbursement amount of CHF 5’227’231.77 was determined at the appellant's expense for additional revenue generated in the period from 2014 to 2018 with regard to the appellant's medicine. What was to be examined by the Federal Administrative Court in the present case was whether the FOPH correctly calculated the additional revenue to be reimbursed by the appellant from the sale of its medicine in the contested ruling. In particular, it had to be clarified whether the FOPH was right to base the amount it ordered to be refunded not only on a comparison of foreign prices (APV), but also on a therapeutic cross-comparison (TQV). The appellant was of the opinion that the additional revenue to be reimbursed by it could only be calculated on the basis of an APV, which is why it only recognised the amount of the reimbursement to be paid by it to the joint KVG institution in the amount of Fr. 3’947’279.42.

After a detailed examination, the Federal Administrative Court held that the FOPH had rightly calculated the additional revenue to be reimbursed by the appellant from the sale of her medicine on the basis of an APV and TQV. Moreover, the appellant did not further criticise the FOPH's calculation, which was the basis for the ordered reimbursement amount. It was also not apparent in what way this calculation by the FOPH could be erroneous. The APV carried out by the FOPH corresponded to the APV carried out by the appellant. The TQV carried out by the FOPH was the same as that on which the ruling concerning the voluntary price reduction was based and which was accepted by the appellant. The conclusions drawn by the FOPH on the basis of the APV and the TQV did not give rise to any criticism either. The additional revenue of CHF 5’227’231.77 calculated and ordered by the FOPH, which the appellant must reimburse to the joint KVG institution, was therefore lawful.

Consequently, the appeal was dismissed.

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