Penalty in case of delay in mandatory health insurance affiliation

Facts

Mr. A requested his affiliation with the health insurance fund Assura on July 18, 2001, with retroactive effect to July 1, 2001. Finding that Mr. A had not been insured on a mandatory basis against the risk of illness since January 1, 1996, the fund informed him that a premium surcharge of CHF 9,616, calculated on the basis of the monthly premium amounts for the years 1996 to 2001, with maximum deductible, for a period double the duration during which he had not been insured and taking into account a rate of 50%, would be charged to him. The Administrative Court of the Canton of Geneva annulled this decision, considering that the fund had violated its obligation to investigate the case ex officio. The fund appealed against this judgment.

Considerations

The Federal Tribunal examines the legality of the implementing provisions adopted by the Federal Council in Art. 8 OAMal, which provides that the premium surcharge provided for in Art. 5 para. 2 LAMal is levied for double the duration of the delay in affiliation, at a rate between 30 and 50%. The Federal Tribunal considers that this regulation respects the framework of the delegation norm and the principle of proportionality with regard to the amount of the surcharge. However, the collection of the surcharge for a period double the delay in affiliation may result in a penalty whose duration is no longer reasonably related to the omission that justifies it. The Federal Tribunal applies by analogy the maximum period of five years provided for in Art. 95 LAA for a similar penalty.

In the present case, the method of calculating the…