Federal Administrative Court, Decision C-6055/2018 of 21 January 2020

13 febbraio 2020 – In a recent decision, the Federal Administrative Court rejected the appeal of a French national based on denial of justice with regard to the admission of exercise of medical activity at the expense of compulsory health care insurance.

The applicant applied for authorization to practice its profession as a medical specialist in dermatology and venereology in the Canton of Geneva. The Department of Employment, Social Affairs und Health admitted the application. However, the General Directorate of Health (GDH) held that the applicant will not be allowed to practice at the expense of compulsory health care insurance. The GDH informed the applicant that its application had been examined and that the need for dermatologists in Geneva was covered. The applicant requested a reconsideration by the GDH due to significantly changed circumstances. The applicant argued that she should be given the authorization of a doctor who retired. The GDH repeatedly stated that due to the lack of new information it was not obliged to carry out a reconsideration. The applicant filed an appeal and claimed that this was a denial of justice by the GDH.

According to the Federal Administrative Court citizens have in principle no right for the authority to respond to their request for reconsideration, unless such a right is provided for by law or the specific conditions laid down by established case law. Such right was provided for in art. 48 of the Geneva Administrative Proceeding Act: For the obligatory reconsideration to be admissible, there must be a motive for reconsideration or a substantial change in circumstances. Therefore, the Federal Administrative Court admitted the point that there was a right to a decision on the request for reconsideration. However, the Federal Administrative Court held that an appeal concerning denial of justice requires an interest worthy of protection, which does not exist if there is already a decision on the request. In the present case, the GDH had rejected the request for reconsideration, which means that a decision exists, even if it was not expressly referred to as a decision. Thus, the appeal was declared inadmissible for lack of interest worthy of protection.

For the full decision, see here.