In its decision of 18 May 2026, the Federal Supreme Court (the Court) declined to enter into the appeal filed by a group of physicians holding private pharmacy licences (Privatapotheken) against an interim decision of the Administrative Court of the Canton of Bern (the Administrative Court), which had refused to lift the suspensive effect of a complaint brought by two competing pharmacies.

The background to the dispute concerned the right of physicians in two municipalities to dispense medication directly to their patients (pro-pharmacy). Under art. 52 para. 3 of the Bernese Health Act (Gesundheitsgesetz des Kantons Bern, GesG/BE), private pharmacy licences held by physicians may be continued for a transitional period of ten years following the establishment of a public pharmacy and emergency pharmaceutical service in the locality concerned. The Bernese Health Office (Gesundheitsamt) had notified the licence holders in early 2025 that the ten-year transitional periods had expired in April and August 2025 respectively, and that pro-pharmacy would thereafter no longer be permitted. However, the cantonal Health Directorate (Gesundheitsdirektion) subsequently "suspended" the transitional periods pending the outcome of a roundtable process initiated in connection with a cantonal parliamentary motion on the coordination of physicians and pharmacists. Two pharmacies challenged that suspension before the Administrative Court, which found that the appeal had suspensive effect by operation of law, meaning the physicians could not rely on the "suspended" deadline extension in the interim. The physicians then sought to have the suspensive effect lifted, which the Administrative Court refused by decision of 18 February 2026. They appealed that refusal to the Court.

The Court dismissed the appeal as inadmissible. Under art. 93 para. 1 let. a of the Federal Supreme Court Act (FSCA), an interlocutory decision is only appealable if it could cause irreparable legal harm. The court held that none of the three grounds advanced by the physicians met this threshold. First, the loss of dispensing revenue and the risk of stock expiry constituted purely economic disadvantages, not legal harm. Second, the concern that pharmaceutical supply in the affected municipalities might be inadequate without physician pro-pharmacy was speculative and unsupported by concrete evidence, particularly given the presence of public pharmacies. Third, the argument that the absence of a formal challengeable decision had deprived the physicians of an effective appellate pathway went to the merits of the main proceedings before the Administrative Court and was not a consequence of the interlocutory decision under appeal. The court accordingly declined to enter into the appeal and ordered the physicians, jointly and severally, to bear court costs and to pay the pharmacies' party compensation.

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