Subjection of private clinics to the public procurement law: economic freedom not infringed

Facts

Parties and authorities involved: the appellant is a public limited company based in Canton X., which in the Canton of Ticino operates two clinics included in the list of institutions authorised to provide services at the expense of compulsory health insurance. The respondent authority is the Council of State of the Canton of Ticino. The appeal was examined by the II Public Law Court of the Federal Supreme Court, by judgment of 12 February 2021 (2C_705/2019).

Regulatory context: on 10 April 2017 the Grand Council of Ticino revised the cantonal law on public procurement (LCPubb), amending Art. 2, which defines the contracting authorities subject to it. On 12 June 2019 the Council of State reformulated the implementing regulation (RLCPubb/ICAPP), specifying in Art. 2 the contracting authorities subject to it and referring to two annexes of an illustrative nature: Annex 1 (public law contracting authorities and other contracting authorities entrusted with public tasks, including the 'private clinics') and Annex 2 (normative acts providing subsidies, including the LSan and the LCAMal). The amendments were published on 14 June 2019 and entered into force on 1 January 2020.

The appellant's requests: as a principal request, the appellant seeks the deletion of the 'private clinics' from Annex 1 and of the two laws cited in Annex 2; as a subsidiary request, it seeks referral of the matter back to the Council of State so that it amends the annexes. The Council of State proposes that the appeal be dismissed insofar as it is admissible. No suspensive effect was granted.

Complaints: the appellant argues that private clinics do not fall within the subjective scope of federal and intercantonal law on public procurement (AP, WTO/GPA Agreement, IMA, ICAPP), and that the extension made by cantonal law infringes economic freedom (Art. 27 in conjunction with Arts. 94 and 36 of the Federal Constitution), for: (a) lack of a sufficient legal basis; (b) absence of a public interest; (c) lack of proportionality, including in the strict sense; (d) unlawful interference with competition between private clinics and the Cantonal Hospital Organisation.

Considerations

Admissibility of the appeal. The regulation is a general and abstract cantonal normative act; against it the appeal in public law matters is available (Arts. 82 let. b and 87 para. 1 FSCA), there being no specific cantonal remedies and the exclusion list of Art. 83 FSCA not applying. The 30-day time limit (Art. 101 FSCA), running from the publication of 14 June 2019, is observed, also taking into account the summer court holidays.

Standing. Under Art. 89 para. 1 let. b and c FSCA, one must be particularly affected in a current or virtual manner and have a legitimate interest worthy of protection. A legal person may lodge an appeal if it is affected in its interests in the same way as a natural person. The appellant, which operates clinics included in the cantonal list, has standing to seek the deletion of the private clinics from Annex 1, also because the illustrative nature of the list does not exclude the interest in a ruling that could be invoked in future applications of Art. 2 LCPubb. By contrast, the appellant denies being affected by the laws cited in Annex 2 and bases its request only on arguments of clarity and legal certainty: standing is therefore lacking, and the claim relating to Annex 2 is inadmissible.

Scope of review. In an appeal in public law matters, violations of federal, international and intercantonal law may be raised (Art. 95 let. a, b, e FSCA), subject to the burden of pleading and reasoning under Art. 42 paras. 1 and 2 FSCA. Violations of fundamental rights require precise reasoning (Art. 106 para. 2 FSCA). In an abstract review, the Court annuls a cantonal provision only if it is not susceptible to any interpretation consistent with superior law. New arguments in the reply are late and must not be considered.

Economic freedom. Art. 27 of the Federal Constitution guarantees economic freedom to natural and legal persons, but it cannot be invoked by the State nor, as a rule, by private entities performing public tasks, save to a limited extent. Art. 94 of the Federal Constitution protects economic freedom in its institutional dimension: the State may not adopt measures that hinder competition in order to favour certain sectors, save for derogations provided for by the Constitution or based on regalian rights (Art. 94 para. 4 of the Federal Constitution).

Non-commercial activity. According to BGE 145 II 49, the activity of the institutions included in the cantonal list of institutions authorised to provide services at the expense of the compulsory health insurance (AOMS) is not carried out under conditions of competition, there are no sufficient guarantees of an economic use of public resources, and the conditions for qualifying it as a commercial activity that would exclude the application of the rules on public procurement are not met. The appellant acknowledges this point. However, an invocation of Art. 27 of the Federal Constitution by a private clinic is not excluded a priori, since it remains possible in other respects, such as the choice of commercial partners.

Examination of the complaints. (a)…