Federal Administrative Court, Decision B-413/2020 from 28 March 2022
8 avril 2022 – In the present case, it was disputed whether the Medical Professions Commission (Medizinalberufekommission MEBEKO) had rightly ordered not to enter the case regarding the recognition of appellant’s further education title in the field of geriatrics. The MEBEKO argued that the Federal Supreme Court had established in its decision 2C_39/2018 from 18 June 2019 that the MEBEKO was only competent for the recognition of foreign further education titles as far as equivalence with federal further education titles accredited under the Medical Professions Act is concerned. According to the MEBEKO the further education title in question lacked this and therefore the MEBEKO denied its jurisdiction. However, the Court held that the MEBEKO was indeed competent in the case at hand.
Materially, the Court held that, contrary to the argumentation of the MEBEKO, the latter must also carry out the corresponding recognition examination in application of the general regulations of Art. 10 et seq. of the Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications and in consideration of the provisions of the Agreement on the Free Movement of Persons (AFMP). It stated that the specialisation in geriatrics represented a qualitative dignity in TARMED and was therefore decisive for whether the appellant, as a specialist, could bill for the services corresponding to this specialisation in accordance with TARMED, and that the activity as a specialist was a regulated professional activity within the meaning of Directive 2005/36/EC. The TARMED collective agreement as well as the applicable cantonal regulations had to be regarded as a legal regulation under public law. Hence, the specialisation in geriatrics constituted a professional qualification within the meaning of Art. 3(1)(a) of the Directive 2005/36/EC, which is required by public law in Switzerland for the exercise of a regulated professional activity according to the Court. Moreover, contrary to the view of the MEBEKO, the fact that the specialisation in geriatrics in Switzerland is not the result of a further education course accredited on the basis of the Medical Professions Act, but is merely a further education title regulated under private law, is irrelevant according to the Court, since and to the extent that it is – as already established – a professional qualification within the meaning of Art. 3(1)(a) of the Directive 2005/36/EC, i.e. a prerequisite under Swiss public law for the exercise of a regulated professional activity. According to the Court, this was the case for the activity in question.
Therefore, the Court upheld the appeal and referred the case back to the MEBEKO.
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