Facts

A. AG applied for the unlimited inclusion of the drug C. in the Specialities List (SL) at certain retail prices. The Federal Office of Public Health (FOPH) rejected the granting of a 5% tolerance margin to the average ex-factory price of the reference countries. The Federal Administrative Court dismissed the appeal filed against this. The Federal Supreme Court confirmed the decision. It stated that for a drug that is initially included in the SL on a time-limited basis and then on an unlimited basis, based on the interpretation of the relevant provisions, there is no entitlement to the granting of a tolerance margin as part of the economic efficiency review for the unlimited inclusion. The situation of a time-limited inclusion of a drug differs from that of an unlimited inclusion of a drug in the three-yearly review of the inclusion conditions, as in the latter case a price adjustment is made, while in the former case the price must first be determined. Therefore, it is objectively justified to treat C. differently than drugs already listed in the SL. Furthermore, the non-granting of the tolerance margin does not violate the principle of legal equality or economic freedom. C. was not in the same initial situation as a drug included on an unlimited basis in the three-yearly review. Moreover, social insurance as such is largely exempt from economic freedom, so that the appellant is not legally restricted in an activity protected by economic freedom by…