Access to non-anonymised judgments of the Federal Administrative Court concerning review of admission conditions for the Specialties List; public administration of justice and anonymisation

Facts

On 24 February 2020, the lawyer asked the Federal Administrative Court to grant him and two law firm partners the same access to all judgments of the Federal Administrative Court concerning the review of admission conditions for the Specialties List (SL) by the Federal Office of Public Health (FOPH) as accredited media representatives, namely those of the years 2017 to 2019. The Federal Administrative Court rejected the request by letter of 8 July 2020.

By submission of 14 July 2020, appellant 1 again requested delivery of a copy of all judgments of the Federal Administrative Court concerning an appeal against a decision of the FOPH and dealing with the review of admission conditions for medicinal products on the Specialties List (Art. 52 HIA), in particular the three-yearly review of the years 2017, 2018 and 2019, without anonymisation of the names of the medicinal products and other product-relevant information. In the alternative, he requested eleven precisely identified judgments without anonymisation.

By decision of 22 October 2020, the Administrative Commission of the Federal Administrative Court rejected both requests.

Appellant 1 and appellant 2 filed appeals against this decision with the Federal Supreme Court in public law matters. They requested that the decision be set aside and that the Federal Administrative Court be instructed to deliver non-anonymised copies of the judgments; in the alternative, that access to non-anonymised judgments be granted; and in the further alternative, that the names of the appellant companies and/or of the medicinal products for which the FOPH ordered a price reduction be anonymised. The Federal Administrative Court requested that the appeal be dismissed.

The subject matter of the dispute is whether the anonymisation of the judgments by the Federal Administrative Court violates the principle of public administration of justice (Art. 30 para. 3 Cst., Art. 6 no. 1 ECHR, Art. 14 para. 1 UN Covenant II).

Considerations

The appeal in public law matters against the final-instance decision of the Federal Administrative Court is in principle admissible (Art. 82 lit. a, Art. 86 para. 1 lit. a, Art. 90 ff. FSCA). Appellant 1 took part in the proceedings before the lower court and is affected by the rejection of his request, so his standing under Art. 89 para. 1 FSCA must be affirmed. Appellant 2, by contrast, did not take part in the proceedings before the lower court and does not assert any unlawful prevention from participating (Art. 89 para. 1 lit. a FSCA); his appeal is therefore inadmissible. The Federal Supreme Court interprets appellant 1's request as seeking access to all judgments of the years 2017 to 2019, not merely to the expressly named judgments.

The public administration of justice serves to protect the parties to proceedings, enables third parties to follow the administration of justice, and creates transparency and confidence in the judiciary. It comprises the public pronouncement of judgments as well as other equivalent forms of publication, in particular the subsequent granting of inspection. The right to inspect judgments is not absolute and may be restricted to protect privacy (Art. 13 Cst.); the protection of personality is generally secured through anonymisation. The anonymisation must be proportionate and must not render the judgment incomprehensible.

The Federal Administrative Court in principle publishes decisions in anonymised form (Art. 29 para. 2 FACA, Art. 8 para. 1 InfoR BVGer), although publication of the names of the parties is permissible where they are already known or where no interests worthy of protection are affected (Art. 8 para. 2 InfoR BVGer). Under Art. 71 para. 4 HIO, the FOPH may publish the name of a medicinal product affected by an appeal; the FOPH maintains a publicly accessible list of these medicinal products, which also contains the names of the marketing authorisation holders. The legislator has thus recognised a significant public interest in knowing which medicinal products are under appeal.

The Federal Administrative Court justified the extensive anonymisation by the business secret character of SL applications, relying on a recommendation of the FDPIC. The Federal Supreme Court objects that the judgments requested do not concern SL applications but predominantly price reduction decisions; the considerations and the FDPIC recommendation are therefore only partly relevant. Moreover, access to court judgments does not require a specific public…