6 May 2025 – In its decision of 31 March 2025, the Federal Supreme Court dismissed the appeal filed by the Medical Association of the Canton of Bern as well as six doctors against the Ordinance on Admission to Practise at the Expense of Compulsory Health Insurance (Verordnung des Regierungsrates des Kantons Bern vom 22. November 2023 über die Zulassung zur Tätigkeit zulasten der obligatorischen Krankenpflegeversicherung, ZulaV).

The appellants first argued, that the ZulaV violated the separation of powers as well as the rules of competence according to Art. 5 of the Federal Constitution (FC) and Art. 66 of the Constitution of the Canton of Bern, stating that the ZulaV should have been laid down in a formal cantonal law. The court rejected this argument, stating that each Canton has the competence and even the obligation 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) and Ordinance on the Maximum Number of Doctors in Outpatient Care (Verordnung über die Festlegung der Höchstzahlen für Ärztinnen und Ärzte im ambulanten Bereich, HZV). Federal law alone is not sufficient to establish the competence of the cantonal authorities to issue implementing and enforcement ordinances.

According to the preamble, the ZulaV is based on Art. 55a KVG, Art. 1 and 5 HZV, Art. 48 of the Health Act (GesG) and Art. 135 of the Hospital Care Act (SpVG). The Federal Supreme Court has ruled that neither Art. 48 GesG nor Art. 135 SpVG contain explicit authorisation by the cantonal government at the level of law to issue ordinances on maximum numbers of doctors. However, Art. 6 para. 1 of the Introductory Act to the Federal Laws on Health, Accident and Military Insurance (EG KUMV/BE) and various provisions of the GesG/BE (in particular Articles 7, 8, 15 and 21) and the Health Ordinance (GesV/BE) that the cantonal government and the health authority are responsible for licensing and restricting the number of doctors. Even if these regulations primarily concern professional licenses and do not expressly regulate the restriction of doctors working under OKP, the court believes that they can be interpreted broadly and justify a corresponding competence to set maximum numbers by means of an ordinance.

The court also rejected the other arguments.

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