Federal Supreme Court, Decision 9C_740/2020 from 14 December 2021
28 January 2022 – In the present case, the Court had to assess whether the price reduction ordered by the Federal Office of Public Health (FOPH) and confirmed by the Federal Administrative Court was legal. The appellant argued that the FOPH illegally exercised its discretion when forming the comparative products groups for the TQV. The Court held – contrary to the appellant’s arguments – that it was correct that the FOPH carried out the TQV pursuant to the changed legal situation and used – other than in the admission order – comparative medicinal products that were listed on the specialities list (SL) at the moment of the triennial review. However, one of the comparative products could not be qualified as an alternative for the treatment of the same disease pursuant to the Court. The Court based its decision on the fact that the main indications differed, the scope of application was barely congruent, and that they were medicinal products of different gammas. Consequently, the TQV was in breach with the applicable law and thus carried out illegally.
Therefore, the appeal was partially upheld, and referred back to the Federal Administrative Court.
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