In its judgment, the Federal Supreme Court (the Court) declined to enter into the appeal of a marketing authorization holder against a judgment of the Federal Administrative Court of 22 January 2026 (C-9461/2025). The question in dispute was whether the Federal Administrative Court's decision not to enter into an appeal against the Federal Council's approval of amendments to the tariff structure agreement for outpatient medical services (TARDOC and outpatient flat rates) could be challenged before the Court.

The Federal Council had approved the amendments on 5 November 2025. The marketing authorization holder had challenged this approval insofar as the costs of one of its medicinal products had been incorporated into two outpatient flat rates. The Federal Administrative Court declined to enter into the appeal.

The Court held that the appeal was excluded under art. 83 let. r of the Federal Supreme Court Act (Bundesgerichtsgesetz, BGG). This exclusion also applied to decisions not to enter into an appeal. The appellant argued that the incorporation of the costs amounted to an amendment of the product's listing in the List of Pharmaceutical Specialties (Spezialitätenliste), for which only the Federal Office of Public Health (FOPH) was competent. The Court rejected this argument. The approval had not entailed any formal amendment of the List of Pharmaceutical Specialties. Moreover, the contested ruling had been issued by the Federal Council, not by the FOPH. As the approval concerned a tariff agreement under art. 46 para. 4 of the Health Insurance Act (Bundesgesetz über die Krankenversicherung, KVG), the only possible basis for an appeal was art. 33 let. i of the Federal Administrative Court Act of 17 June 2005 (Bundesgesetz über das Bundesverwaltungsgericht, VGG) in conjunction with art. 53 para. 1 KVG. As the Federal Administrative Court had examined admissibility under these provisions, its judgment fell within the scope of art. 83 let. r BGG, even though it had ultimately held them to be inapplicable. A subsidiary constitutional appeal was likewise unavailable.

The Court did not address whether a medicinal product included in the List of Pharmaceutical Specialties could form part of an outpatient flat rate. It further held that the alleged nullity of the approval could only be considered within an admissible appeal. In any event, there was no indication of nullity.

For more information, see here.