Federal Administrative Court, Decision C-5960/2019 from 12 November 2021

3 December 2021 – In this case, it was disputed at which price the economical character of a medicinal product was to be affirmed within the framework of the triennial review of the conditions of admission. The Federal Office of Public Health (FOPH) carried out both an APV and a TQV. However, the appellant objected to the TQV and argued that the FOPH had carried out the TQV with the monthly package size of two comparative products instead of their smallest package size. According to art. 65d para. 3 of the Ordinance on Health Insurance, the TQV should generally be carried out on the basis of the smallest package size. The Court held that the lower instance had discretion insofar as a deviation from this principle was possible. However, even in case of such a deviation from the principle, the TQV must be carried out on the basis of identical package forms as far as possible. In the present case the Court refuted the argumentation of the FOPH and held that the inclusion of the different package sizes by the FOPH did not allow for an adequate comparison. As a consequence, the Court ruled that the TQV in the case at hand should have been carried out on the basis of the smallest pack size of all comparative products. Furthermore, the Court adjusted the disputed order by re-determining the retail price and thus upheld the appeal.

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