In its decision of 28 May 2024, the Federal Administrative Court did not admit the appeal by 35 health insurers against a decree of the Cantonal Council of Basel-Landschaft, which had set provisional tariffs for acute somatic and rehabilitation services as of 1 January 2024 (Art. 47 para. 1 Swiss Federal Law on Health Insurance [Bundesgesetz über die Krankenversicherung, KVG]).

The Cantonal Council's decree sets a provisional tariff prior to the setting of a definitive tariff for services from 1 January 2024. The tariff was set by the Cantonal Council in order to avoid a tariff-free situation. It is therefore a precautionary measure in the tariff system. Appeals against the setting of provisional tariffs are only admissible if the provisional tariff determination can either cause an irreparable disadvantage or if the approval of the appeal leads immediately to a final decision and thus saves a significant amount of time or costs for extensive evidentiary proceedings.

The health insurers argued that the provisional tariff determinations would result in an irreparable disadvantage for them, as it would significantly restrict their bargaining power. They also criticised the fact that the lowest rate had not been applied.

The court, however, found that the health insurers did not suffer any irreparable disadvantage from the provisional tariffs (Art. 46 para. 1 let. a Administrative Procedure Act [APA]). Such a disadvantage would only be given if the insurers' existence were threatened or if they could not enforce their claims for reimbursement, which was not the case. According to the Court there was no irreparable disadvantage within the meaning of Art. 46 para. 1 let. a APA, as any difference between the work tariffs and the final tariffs can be compensated retroactively.

The conditions for upholding the appeal pursuant to Art. 46 para. 1 let. b APA were also not met. The upholding of the appeal could not have led to an immediate final decision, as only another provisional tariff would have been set. In addition, no significant time or cost savings would have been achieved.

The appellants' invocation of a 'misconduct' on the part of the Cantonal Council was also been rejected. The court clarified that the case law cited refers to judicial authorities and not to cantonal government authorities. In addition, there had been cases in the past where the provisional tariff was higher than the final tariff.

As a result, the appeal was not admitted because the requirements of Art. 46 para. 1 APA were not met.

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