In its judgment, the Federal Supreme Court (the Court) dismissed the appeal of a company seeking an operating licence to run an acute-care hospital in the Canton of Thurgau. The cantonal authorities had refused the licence because the company neither operated a certified intensive care unit nor had a cooperation agreement with a downstream healthcare provider operating such a unit.

The Court confirmed that, under the applicable cantonal law, acute-care facilities must be able to manage medical complications either independently or through an agreed cooperation with another provider. It held that the cantonal authorities had been entitled to rely on the certification guidelines of the Swiss Society of Intensive Care Medicine and on the Zurich hospital planning service-group concept to specify this requirement. For the medical specialties for which the company sought authorisation, the requirement could therefore be met either by operating its own certified intensive care unit or by entering into a cooperation agreement with a hospital that operated one.

The Court further held that these requirements did not unlawfully restrict the company’s economic freedom under art. 27 of the Federal Constitution. As the company satisfied neither of the two alternatives, the refusal of the operating licence was upheld.

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