Facts
The Government Council of the Canton of SocRA issued on 27 June 2023 the Ordinance on the admission of doctors in the outpatient sector (Admission Ordinance; GamblA 842.13) and an annex thereto (Annex to the Admission Ordinance; GamblA 842.13-A1), which entered into force on 1 July 2023. The ordinance provides for maximum numbers of doctors in eleven medical specialties, which are defined in full-time equivalents (FTE) per specialty. The annex contains the specific maximum numbers, including 8.5 FTE for the specialty of dermatology and venereology. The maximum numbers apply throughout the canton and cover all doctors active in the outpatient sector, regardless of whether they work in their own practice, in hospitals or in institutions pursuant to Art. 35 para. 2 lit. n HIA.
The appellants, a specialist dermatologist (Appellant 1) and a public limited company operating a skin centre (Appellant 2), filed an appeal in public law matters against the Admission Ordinance and the annex on 29 August 2023. They requested the annulment of the ordinance or the annex or at least the creation of a proportionate transitional provision. They also requested the recognition of the suspensive effect of the appeals. The Government Council of the Canton of SocRA requested the dismissal of the appeals.
The Federal Supreme Court joined the two proceedings (9C_529/2023 and 9C_530/2023) and dealt with them jointly. The appellants claimed in particular a violation of the principle of separation of powers, of the rules on jurisdiction, of economic freedom, of the guarantee of property and of the right to basic medical care. They also criticised arbitrariness in legislation and insufficient inter-cantonal coordination.
Considerations
1. Jurisdiction and admissibility requirements The Federal Supreme Court examined its jurisdiction and the admissibility requirements ex officio. It found that the Admission Ordinance and the annex are to be qualified as normative acts within the meaning of Art. 82 lit. b FSCA and can thus be directly challenged before the Federal Supreme Court. The annex was not considered a generally-concrete general administrative act, but an integral part of the Admission Ordinance. The appeals were filed in due time, as the ordinance was published in the Official Gazette of the Canton of SocRA on 29 June 2023 and the appeals were filed on 29 August 2023.
2. Right to appeal Appellant 2 (the public limited company) was recognised as having the right to appeal, as it is restricted in its ability to employ specialist dermatologists in the outpatient sector due to the maximum numbers. Appellant 1 (the specialist) was not considered directly affected, as she does not run her own practice, but her right to appeal was left open, as Appellant 2 was already entitled to appeal.
3. Compliance of the cantonal norm with fundamental rights The Federal Supreme Court examined the Admission Ordinance and the annex for their compatibility with the Federal Constitution and the ECHR. It emphasised that the review is an abstract norm control and that the Federal Supreme Court exercises a certain restraint, in particular with regard to the principles of federalism and proportionality. A cantonal norm is only annulled if it cannot be interpreted in conformity with the Federal Constitution or the ECHR. In doing so, the Federal Supreme Court took into account the explanations of the Government Council regarding the application of the ordinance and the likelihood of a fundamental rights-compliant application.
4. Separation of powers and rules on jurisdiction The appellants criticised a violation of the principle of separation of powers and the cantonal rules on jurisdiction, as the Admission Ordinance and the annex had been issued at ordinance level without a legal basis. The Federal Supreme Court found, however, that the Government Council of the Canton of SocRA is empowered to issue ordinances pursuant to § 3 Transitional Provisions HIA/ZG and § 24 Health Act/ZG. Moreover, the ordinance was based on Art. 55a HIA and the HZV, which grant the cantons the competence to set maximum numbers. The appellants were unable to convincingly demonstrate that the ordinance was issued at too low a normative level.
5. Inter-cantonal coordination The appellants complained that the Government Council had set the maximum numbers without sufficient coordination with the other cantons. The Federal Supreme Court dismissed this objection, as the Government Council was able to prove that it had exchanged views with the other cantons, in particular the central Swiss cantons, and had set the maximum numbers in consultation with them. It also became apparent that a joint setting of maximum numbers was not possible due to the different starting positions.
6. Arbitrariness in legislation The appellants claimed that the Admission Ordinance and the annex were arbitrary, as the maximum numbers were not based on sufficient data and the need for specialist medical services was unclear. The Federal Supreme Court dismissed this objection, as the Canton of SocRA had used data from the Federal Statistical Office (FSO) and a survey among doctors to determine the supply of doctors. Moreover, the supply level was calculated in accordance with the Federal Council's specifications (Art. 3 HZV). The appellants were unable to convincingly demonstrate that the calculation bases were arbitrary. Moreover, it became apparent that the Canton of SocRA had already waived a two-year transitional provision before the ordinance entered into force and had introduced the method for calculating the maximum numbers, which will be mandatory throughout Switzerland from July 2025.
7. Economic freedom and guarantee of property The appellants criticised a violation of economic freedom (Art. 27 Cst.) and the guarantee of property (Art. 26 Cst.), as the maximum numbers restricted the economic freedom of doctors and destroyed the market value of dermatological practices. The Federal Supreme Court dismissed this…