30 April 2025 – In its decision of 24 March 2025, the Federal Supreme Court dismissed the appeal filed by three doctors against the Ordinance and the Annex of the Government Council of the Canton of Zug of 27 June 2023 on the licensing of doctors in outpatient care (Verordnung des Regierungsrates des Kantons Zug über die Zulassung von Ärztinnen und Ärzten im ambulanten Bereich, ZulaV). The ordinance sets limits on the number of physicians in the outpatient sector.

The appellants first argued, that the ZulaV violated the separation of powers as well as the rules of competence, namely enshrined in § 38 para. 1 and § 47 of the Constitution of the Canton of Zug, arguing that the ZulaV should have been laid down in a formal cantonal law. The court rejected this argument, stating that since July 2021 the maximum number of physicians being allowed to practice in the outpatient sector per Canton and speciality was not defined by the Federal Council anymore. Instead, each Canton now has the competence to fix the maximum number of physicians based on the criteria and methodological principles established by the Federal Council (Art. 55a para. 1 and 2 of the Federal Healthcare Insurance Act (Krankenversicherungsgesetz, KVG)). The court confirmed that federal legal frameworks alone are insufficient to establish the competence of cantonal authorities to issue implementing and enforcement regulations; a formal legal basis at the cantonal level is required. The court held that in the Canton of Zug, such a legal authorisation exists, allowing the cantonal government to issue regulations concerning the maximum numbers of medical professionals.

Furthermore, besides others, the appellants alleged a violation of the right to economic freedom and the guarantee of ownership in the sense of Art. 26 and 27 of the Federal Constitution (FC). However, the court rejected the argumentation, holding that Art. 55a KVG pursues the socio-political goal to lower healthcare costs for insured persons. In its consistent jurisdiction, the Federal Supreme Court held that the pursuit of this goal justifies restrictions of the economic freedoms (and the freedom of ownership), whereas privately practising doctors cannot derive the right from economic freedom to provide unlimited services at the expense of social health insurance.

The appellants further argued, that the ZulaV violated the right to basic medical care (Art. 117a FC) and the right to life under Art. 10 para. 1 FC and Art. 2 of the European Convention on Human Rights, since the introduction of maximum numbers results in a reduction in the level of basic medical care. However, the Court held that maximum numbers could only be introduced, where the demand was met, which was the case for gynaecology (which was specifically mentioned by the appellants).

Lastly, the appellants alleged a violation of the principle of good faith (Art. 9 FC) because the ZulaV was published “by surprise” just two days before its entry into force and without any transitional provisions. This prevented the complainants from taking early succession planning. The court rejected this argumentation, holding that the legal framework of the ZulaV had been in force for a while. Additionally, prior to the enactment of the ZulaV, discussions were held with service providers and associations in the Canton of Zug, which made the restriction of licences predictable.

As a result, the Federal Supreme Court rejected the appeal.

For more information, see here and another decision in a similar matter here