Federal Administrative Court, Decision C-3663/2017 of 31 May 2021
11 juin 2021 – In this decision, the Federal Administrative Court had to decide whether a directive of the Federal Office of Public Health (FOPH), which was based on the Federal Act on the Supervision of Social Health Insurance (KVAG), constituted a suitable object of objection against which an appeal could be filed with the Federal Administrative Court. The appellant argued that the FOPH's directive was a ruling within the meaning of art. 5 of the Federal Act on Administrative Procedure (APA), which prohibited her from freely disposing of her assets.
However, the Federal Administrative Court did not share this view. Instead, the court ruled that the FOPH had the right to restore the lawful situation by issuing a directive outside the scope of the health insurance funds' autonomy. Rather, it was wrong to claim that legal protection had been denied, as it would have been open to the appellant to apply for a declaratory ruling within the meaning of art. 25 APA following the directive. In addition, the Federal Administrative Court stated with regard to the content of the directive that the financing of compulsory health care insurance is conclusively regulated by the legislature and that the appellant, in the context of its activities as an insurer, therefore no longer has any private autonomy in this respect. The FOPH's directive was therefore justified.
Consequently, the appeal was not admitted by the court.
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