Facts
Clinic X. AG operated a clinic in the Canton of Zug, which was included in the cantonal hospital list with 50 beds in 1997. The clinic later applied to be allowed to operate up to 66 beds in order to accommodate seasonal fluctuations. The Governing Council of the Canton of Zug rejected this and limited the planned number of beds to 50. The clinic then filed a complaint with the Federal Council, which dismissed the complaint. Clinic X. AG subsequently filed an administrative court appeal with the aim of achieving the inclusion of additional beds for privately insured patients in the hospital list. It argued that the cantons do not have planning sovereignty in the area of supplementary insurance and that the clinic was entitled to operate more than 50 planned beds based on the applicable hospital list of 1997.Considerations
The Federal Court dismissed the administrative court appeal as inadmissible. It stated that under Swiss law, there is no entitlement to have private and semi-private wards of private hospitals included in the hospital list. While the operation of private hospitals is subject to economic freedom, the non-inclusion in the hospital list does not mean that the operation is unlawful, but merely that no contributions from the basic insurance are made for the patients accommodated in these beds. Social insurance is largely exempt from economic freedom, so the appellant is not legally restricted in an activity protected by economic freedom by the decision not to include the…