Facts

Parties and instances: The appellant ([A.] , born 1950, represented by a lawyer) is insured with the German Debeka Krankenversicherungsverein a.G. The respondent is the Political Municipality of Eschenbach, health insurance control office. The lower instance is the Insurance Court of the Canton of St. Gallen (decision of 15 April 2020, KV 2019/4 and KV 2019/5).

Subject matter: Health insurance, obligation to insure under HIA and entitlement to exemption under Art. 2 para. 8 HIO.

First exemption proceedings (Canton of Glarus):

  • October 2016: the appellant's application for exemption from the insurance obligation after taking up residence in Switzerland.
  • 20 January 2017: rejection by the Department of Finance and Health of the Canton of Glarus, combined with the obligation to take out a HIA insurance.
  • 4 April 2017: confirmed in the decision on objection.
  • 26 October 2017: confirmed by the Administrative Court of the Canton of Glarus (GLA.2017.00031).
  • 20 February 2018: confirmed by the Federal Supreme Court (judgment 9C_875/2017). The entitlement to exemption was denied, in particular because the limited nursing cost coverage of Debeka constitutes a serious deficiency and the Swiss insurance obligation therefore does not bring about a clear deterioration of insurance coverage.

Second exemption proceedings (Canton of St. Gallen):

  • x August 2018: change of residence to Eschenbach (SG).
  • November 2018: renewed application for exemption, submitting the Debeka documents.
  • 28 November 2018: rejection by the control office, combined with a deadline until 13 December 2018 to take out a HIA insurance; otherwise official assignment. Confirmed in the decision on objection of 16 January 2019.
  • 24 January 2019: assignment to CSS Krankenversicherung AG with effect from x August 2018, confirmed by the decision on objection of 25 February 2019.
  • 15 April 2020: the Insurance Court of the Canton of St. Gallen dismissed the joined appeals.

Requests before the Federal Supreme Court: Annulment of the lower court's decision and remittal for new assessment; alternatively, granting of an exceptional permit under Art. 2 para. 8 HIO.

Legal question: Whether the appellant again has an entitlement to exemption from the Swiss insurance obligation, after this entitlement had already been finally denied, and whether the facts (in particular the advancing age) have changed.

Considerations

Competence and cognition: The Federal Supreme Court examines its competence and the admissibility requirements ex officio and with free cognition (BGE 145 V 304 consid. 1.2). Only the insurance obligation or the entitlement to exemption is disputed; the specific assignment to CSS is not substantiated as a complaint (Art. 42 para. 1 FSCA).

Res judicata: The operative part of a decision or judgment may produce res judicata beyond formal finality. The negative effect prohibits making the same subject matter the main question again; the positive effect binds the court in a later proceeding to what was established in the operative part of the judgment. Res judicata extends personally to the parties, substantively to the subject matter adjudicated, and temporally to the factual and legal situation at the time of the first judgment (BGE 145 III 143 consid. 5.1; BGE 142 III 210 consid. 2.2).

Unchanged factual and legal situation: In proceedings 9C_875/2017 it was undisputed that the appellant is in principle subject to the Swiss insurance obligation under Art. 3 para. 1 HIA. Only Art. 2 para. 8 HIO came into consideration as an exception. In the second proceedings the appellant asserts neither another ground for exemption nor a changed insurance coverage. The lower court appears to assume that the appellant's advancing age creates a…