Facts
The Federal Court had to rule on a complaint by the Association of Pharmacists of the canton of Zurich and other complainants against the decision of the Government Council of the canton of Zurich of 9 December 2008. The subject of the complaint was the new provision of the Health Act (GesG/ZH) that allows the operation of a medical private pharmacy under certain conditions.
The complainants argued that the authorization of medical self-dispensation would reduce their sales and those of the entire pharmacy profession in the canton of Zurich. They claimed that the norm violates provisions of the HIA, the TPA, and the MedPA, as well as the guarantee of property and economic freedom.
The Federal Court ruled that the complainants have a legitimate interest in filing the complaint, as the contested regulation affects their actual interests. However, it examined whether the norm is compatible with federal law and whether the cantons may authorize medical self-dispensation.
Considerations
The Federal Court stated that the cantons are generally free to allow self-dispensation partially or fully on their territory. The norm of Art. 37 para. 3 sentence 2 HIA has only a programmatic significance and gives the cantons the direction they must follow when regulating the supply of medicines.
The court concluded that the authorization of medical self-dispensation does not violate economic freedom and equal treatment. The cantons may restrict the medical supply of medicines but are not…