Federal Administrative Court, Decision C-5675/2018 from 10 August 2021

21 octobre 2021 – In this case, the appellant had previously (in August of 2017) asked the Federal Office of Public Health (FOPH) for a voluntary price reduction of its medication. The FOPH subsequently reduced the public prices by 30.5%. The appellant then calculated, based on an APV, additional revenue of CHF 3,947,279.42. The FOPH, however, calculated that an amount of CHF 5,227,231.77 was to be paid by the appellant to the joint institution KVG, based on an APV and a TQV as well. The appellant argued that the calculation of additional revenue carried out by the FOPH was contrary to the relevant (previous) regulations because it was not based solely on an APV, but also took into account a TQV.

The court thus had to assess whether the FOPH had calculated the additional revenue correctly. According to the court, the voluntary price reduction after the SL-inclusion of a medication triggers the FOPH's review of additional revenue to be refunded. According to the current legal situation, respectively since 1 March 2017 (Art. 37e Abs. 7 Health Insurance Benefits Ordinance), the voluntary price reduction refers to the ex-factory price determined in accordance with Art. 65b Health Insurance Ordinance (HIO), which requires both an APV and a TQV. The court therefore stated that the contested order of the FOPH did not violate the HIO or the HIBO because the calculation of the additional revenues to be reimbursed was based on an APV and a TQV. The court also denied an impermissible retroactive effect of the current Art. 65b HIO.

In conclusion, the court stated that the FOPH had justifiably calculated the additional revenue based on an APV as well as a TQV, and rejected the appeal.

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