In its decisions of 15 January 2025, the Federal Supreme Court dismissed the appeal filed by several associations and physicians against the Ordinance on the Admission to Practice at the Expense of Compulsory Healthcare Insurance (Verordnung über die Zulassung zur Tätigkeit zulasten der obligatorischen Krankenpflegeversicherung, ZulaV) of the Canton of Bern. This ordinance set limits on the number of physicians in the outpatient sector, particularly affecting the licensing of general internal medicine practitioners.

The appellants first argued that the ZulaV violated the principles of the separation of powers and legality enshrined in Art. 5 para. 1 of the Swiss Federal Constitution (FC) and Art. 66 of the Constitution of the Canton of Bern, arguing that the ZulaV should have been laid down in a formal cantonal law and that the Cantonal Council did not have the appropriate competence to issue the ordinance. The court rejected this argument, stating that Art. 55a para. 2 of the Federal Healthcare Insurance Act (Krankenversicherungsgesetz, KVG) authorized the Federal Council to define the criteria and methodological principles for determining the maximum number of physicians, which it has done by issuing the Ordinance on the Setting of Maximum Numbers of Physicians in the Outpatient Sector (Verordnung über die Festlegung der Höchstzahlen für Ärztinnen und Ärzte im ambulanten Bereich, HZV). An additional formal cantonal legal basis was therefore not required. The court also concluded that there was a sufficient cantonal legal basis (albeit not with the desired clarity) for the competence of the Cantonal Council to issue the ZulaV..

Furthermore, the appellants contested the ordinance on the basis of an undue restriction of economic freedom, claiming that the ZulaV unlawfully restricted the ability of physicians to practice under the compulsory healthcare insurance system (obligatorische Krankenpflegeversicherung, OKP). However, the court found that such restrictions were in line with the social policy objective of reducing healthcare costs and therefore deemed them legally permissible.

Another complaint concerned the alleged violation of the right to basic medical care under Art. 117a FC. The appellants argued that the ZulaV jeopardized access to adequate healthcare. However, the court found that the ZulaV did not violate the right to basic medical care, as it only restricts the admission of physicians if the demand is met. In this context, the claims also revolved around the potential threat to the provision of healthcare due to the insufficient possibility of adjusting the maximum number, as well as the potential risk to hospital care. Both arguments were dismissed by the court, as the ZulaV contained provisions for adjusting physician numbers in response to actual needs, ensuring stable healthcare.

Finally, the appellants challenged the ZulaV on grounds of arbitrariness and the principle of good faith enshrined in Art. 9 FC. The court concluded that the ZulaV was based on methodologically sound and legally mandated data, and that the introduction of the maximum numbers was transparent and well-planned, thus finding no violation of these principles.

For more information, see here and here.