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- Transitional provisions to the revision of the Stock Corporation Act of June 19, 2020
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- Art. 2 CCC (Convention on Cybercrime)
- Art. 3 CCC (Convention on Cybercrime)
- Art. 4 CCC (Convention on Cybercrime)
- Art. 5 CCC (Convention on Cybercrime)
- Art. 6 CCC (Convention on Cybercrime)
- Art. 7 CCC (Convention on Cybercrime)
- Art. 8 CCC (Convention on Cybercrime)
- Art. 9 CCC (Convention on Cybercrime)
- Art. 11 CCC (Convention on Cybercrime)
- Art. 12 CCC (Convention on Cybercrime)
- Art. 25 CCC (Convention on Cybercrime)
- Art. 29 CCC (Convention on Cybercrime)
- Art. 32 CCC (Convention on Cybercrime)
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FEDERAL CONSTITUTION
CODE OF OBLIGATIONS
FEDERAL LAW ON PRIVATE INTERNATIONAL LAW
LUGANO CONVENTION
CODE OF CRIMINAL PROCEDURE
CIVIL PROCEDURE CODE
FEDERAL ACT ON POLITICAL RIGHTS
CIVIL CODE
FEDERAL ACT ON CARTELS AND OTHER RESTRAINTS OF COMPETITION
FEDERAL ACT ON INTERNATIONAL MUTUAL ASSISTANCE IN CRIMINAL MATTERS
DEBT ENFORCEMENT AND BANKRUPTCY ACT
FEDERAL ACT ON DATA PROTECTION
SWISS CRIMINAL CODE
CYBERCRIME CONVENTION
- I. History of origins
- II. Commentary in the strict sense
- Recommended further reading
- About the authors
- Materials
- Bibliography
I. History of origins
1 The origins of the provision of Art. 117a FC on "primary health care" can be traced back to the popular initiative "Yes to family doctor medicine", which came into being on 27.04.2010. The initiators had submitted the popular initiative in the form of an elaborated draft out of concern for the future and importance of family doctor medicine in Switzerland. The aim of the initiative was to make the profession more attractive in terms of image and finances, and thus to alleviate the shortage of GPs that had been looming for some time. The initiative aimed to continue to guarantee "sufficient, accessible to all, comprehensive, professionally comprehensive and high-quality outpatient basic medical care for the Swiss population by general practitioners" by making appropriate corrections.
2 Although the Federal Council also considered family medicine to be an important pillar of basic medical care for the population, it rejected the popular initiative for other reasons. In summary, it was of the opinion that the demands of the initiators had already been met at the level of laws and ordinances, and that measures had already been initiated or planned with regard to other demands. Furthermore, it described the mention of a single occupational group and the high level of detail using numerous unclear terms as questionable and problematic.
3 Nevertheless, the Federal Council recognised a fundamental need for action and conceded that a direct counter-draft was needed. In the Federal Councils, this counter-proposal was then modified by the Councils inserting a provision according to which the services of family medicine were to be adequately remunerated. Thus a compromise was sought and found between the concerns of the initiative and the counter-proposal of the Federal Council. This compromise solution led the initiators to withdraw the initiative. In concrete terms, the initiative committee stated on 27 September 2013 that with the adoption of the counter-proposal of 19 September 2013 by parliament and the development of a master plan on "family doctor medicine and primary health care", the main demands of the initiative would be taken up and appropriate measures introduced. The popular initiative was withdrawn for this reason on 26.09.2013.
4 In addition to the compromise in the wording of the constitutional provision, the master plan "Family Medicine and Basic Medical Care" also proved to be significant for the withdrawal of the initiative. It aimed to strengthen primary care close to home by promoting family medicine with cantonal implementation measures (such as the creation of practice assistance positions by the cantons) and wanted to focus on education, questions of tariff structure and research at the national level.
5 In the referendum of 18.05.2014, the direct counter-proposal was accepted with a yes-vote share of more than 88% and all cantons.
II. Commentary in the strict sense
A. Primary health care and family medicine (para. 1)
1. Division of competences and focus
6 The Confederation and the cantons must fulfil the programmatic content of the provision "within the scope of their competences" (Art. 117a para. 1 FC, first sentence). Art. 117a FC thus remains largely without influence on the distribution of competences between the Confederation and the cantons in the area of health care. No new competences are established either at federal or cantonal level. The fact that Art. 117a para. 1 FC refers to the federal competences already established according to the enumeration principle and the subsidiary general competence of the cantons according to Art. 3 FC was already emphasised in the run-up to the vote on the federal decree on primary health care. In particular, it was pointed out that the enactment of Art. 117a FC would not shift any competences between the Confederation and the cantons and that the constitutional article was in that sense "compatible with federalism".
7 Even if the provision does not affect the existing division of competences between the Confederation and the cantons, or if Art. 117a para. 1 FC did not intend to shift federal competences in the area of health care, it is nevertheless likely to have an influence on the performance of state tasks and the corresponding structure in Swiss health care: Namely, the statement that the Confederation and the cantons (within the scope of their competences) have to ensure sufficient, high-quality basic medical care accessible to all promotes the idea of a mandatory state and - conversely - insufficient private guarantee responsibility and mentality. Art. 117a para. 1 FC also applies to (outpatient) health care for the population, which has traditionally not been provided and guaranteed by the state, but by the private sector (e.g. family medicine). With such a focus, the constitutional provision can - intentionally or unintentionally - create new expectations of a state guarantee responsibility that has not existed to this extent up to now.
2. Sufficient access to high-quality primary health care (para. 1, sentence 1)
a. "Basic health care
8 The term "primary health care" is an indeterminate legal term. At first glance, its content is unclear and must be determined within the framework of interpretation. With regard to the text of the constitution, the only thing that is clear is that primary care provided by private doctors is an "essential component of this primary care" (cf. Art. 117a para. 1 sentence 2 FC), from which it can be concluded that primary care - among other things - is to be understood as primary care medicine. Moreover, the wording contributes little to the understanding of the term as such or its scope - but this statement also applies in principle to the other terms used in the Constitution with reference to medicine, such as "cutting-edge medicine" (Art. 48a para. 1 lit. h FC) or "complementary medicine" (Art. 118a FC) and "reproductive medicine" (Art. 119 FC).
9 It is thanks in particular to Gächter and Renold-Burch that the term "primary health care" has now acquired sharper contours. Their convincing interpretation according to conceptual elements, specialist-related and needs-specific criteria as well as international terms and concepts has become established and provides a good overall understanding of what is meant by primary health care. The following explanations are also based on this.
10 Two conceptual elements are to be distinguished in advance: (medical) health care on the one hand and primary health care on the other. Health care concerns the institutional side of the health care system, i.e. the planning, construction and operation of inpatient health care facilities, but also the outpatient sector in the sense of the operation of doctors' practices and outpatient health care centres. Even if the latter area is predominantly and traditionally organised in the private sector, a certain tendency can be observed that more and more often, for example, public hospitals are entering the outpatient area and operating outpatient health centres. According to Gächter/Renold-Burch, care should be taken not to confuse the concept of health care with that of public health - the former encompasses medical care (diagnosis and treatment of health disorders, illnesses and accidents), the latter has the additional aim of "maintaining and improving" the state of health of the population (which is why care, rehabilitation and areas such as health promotion or prevention are also included).
11 The concept of primary care is to be understood, according to the view expressed here and in view of the Federal Council's Dispatch on Family Medicine, in such a way that primary care services do indeed go beyond the minimum medical assistance to which a person in an emergency situation is entitled on the basis of Art. 12 FC. Nevertheless, not all types of medical services can be claimed under this title without limitation. Rather, a boundary must be drawn where specialists working in the liberal professions (have to) provide treatment or where medical services can only be offered in a concentrated or specialised form for other reasons. For example, the Dispatch also excludes services from primary health care that exist only in isolated cases (e.g. treatment of very rare diseases) or those that can only be offered in concentrated form for other reasons (e.g. availability of specialised knowledge of service providers for individual clinical pictures, quality and safety requirements, e.g. in the area of highly specialised medicine, high technical requirements or financial implications).
12 In the dispatch on its direct counter-proposal, the Federal Council first defines the term "primary health care" in terms of occupational groups and, in addition to general practitioners, also includes nurses, pharmacists, physiotherapists and clinical psychologists. In addition, other medical and non-medical health professionals would also make significant contributions to primary health care. In addition, there is the category of so-called health professions (such as midwives, nutritionists), which today fall within the scope of the Federal Law on Health Professions (GesBG). Accordingly, the "basic medical care" referred to in Art. 117a FC is to be seen as a kind of composite task of various professions with different orientations and functions.
13 The Federal Council then interprets the term in a needs-specific and correspondingly functional manner. The description of what is to be understood by primary health care services is oriented "towards the population's usual need for basic preventive, curative, rehabilitative and palliative medical goods and services". In this context, it is decisive that the basic services of primary care are regularly used by the general population or individual population groups.
14 Finally, Gächter and Renold-Burch tend to equate "primary health care" with the English term "primary health care". With reference to the WHO definition, this is understood to mean basic medical services that should be accessible to all people.
b. Programmatic obligation of the Confederation and the cantons
15 Art. 117a para. 1 FC stipulates that the Confederation and the cantons, within the scope of their competences, must provide basic health care that meets the criteria of "sufficient", "accessible to all" and "of high quality". This is a programmatic mandate that neither specifies concrete goals nor establishes individual entitlements to benefits. Even if the terms used are not justiciable, the three criteria mentioned provide a quantitative and qualitative benchmark for the "primary health care" desired in the country. This yardstick must be taken into account in the implementation of the programmatic obligation, whereby the responsible state organs must be given wide latitude in its implementation.
16 First of all, it is stipulated that primary health care must be "accessible to all". The criterion of accessibility is to be understood geographically, financially and also in terms of time, and obliges the Confederation and the cantons, within the framework of their respective competences, to ensure that the services of primary health care are accessible to the population in all parts of the country within a reasonable time and at a reasonable cost. The form in which accessibility to individual primary health care services is or can be guaranteed - for example, in telemedical, digital or physical form - is variable and accordingly dependent on the respective technical possibilities and the state of science and medicine. Basic health care services must be equally affordable for all, otherwise access would be denied to individual sections of the population. However, it should also be noted here that not all categories of services fall under the term "primary health care".
17 The fact that primary health care must be of "high quality" has implications in three respects. Firstly, the Confederation and the cantons must ensure that the health professionals involved in primary health care have well-coordinated education and training. According to the Federal Council's message on family medicine, high quality also requires that services are provided in a mutually coordinated and networked manner. Finally, the provision also applies at the individual level and requires a high quality of service provision by the individual service providers.
18 What is to be understood by the criterion "sufficient" cannot be explicitly inferred from the Federal Council's message on family medicine. At least it is stated there in the comments on quality that the services must be offered to the "necessary extent". The necessary extent is achieved when both underuse and overuse or misuse are avoided. Interestingly, the provision is not only a programmatic obligation. It also has a limiting effect. This also takes into account the principle according to Art. 43a para. 5 FC, according to which state tasks must be fulfilled according to need and economically.
3. Recognition and promotion of family medicine (para. 1, sentence 2)
19 In addition to the programmatic obligation of the Confederation and the cantons, within the scope of their competences, to provide sufficient, high-quality primary health care accessible to all (Art. 117a para. 1, sentence 1 FC), Art. 117a para. 1, sentence 2 FC also obliges them to recognise and promote family medicine as an essential component of this primary health care. The explicit naming of family medicine as part of primary health care is intended to emphasise its importance as the actual "backbone of primary medical care". In this way, Art. 117a Para. 1 Sentence 2 FC fulfils the mandate addressed to the Confederation and the cantons to recognise family medicine itself. However, it is also clear from the wording of the provision that primary health care is not only guaranteed by family doctor medicine, but that other professional groups - whether medical or non-medical - also make their contribution.
20 The meaning of the term family medicine was unclear for a long time. In the Federal Council's messages on the initiative "Yes to family doctor medicine" and on the revision of the Medical Professions Act, however, the term was then clearly defined. Accordingly, today "family medicine is understood as a medical field of activity with a focus on primary care [...]".
21 The corresponding understanding of the term has now also found its way into the law. Ultimately, a justified concern of the initiative "Yes to family doctor medicine" was taken into account. The Medical Professions Act defines the central importance and function of family medicine as a profession-specific training objective of human medicine, dentistry and chiropractic. Furthermore, the control function of family medicine is defined there as a further training objective. Finally, it is also specified in the same place that the specific knowledge, skills and abilities in the field of family medicine are to be acquired in part within the framework of practice assistantships.
22 Moreover, family medicine is one of two specialisations (the other is that of hospital intern) that can be pursued within the framework of further training to obtain the further training title "General Internal Medicine". In order to further define the term, it is therefore appropriate to refer to the competences to be acquired within the framework of this continuing education. At the end of their training, specialists must have the competence to work in the entire spectrum of outpatient care. He or she must be able to assess which investigations, examinations and therapies are indicated and in what period of time, and must - this is crucial to clarify the term - be able to carry out the "most common" of these himself or herself. If necessary, however, a specialist must be consulted. It can be concluded that family medicine is a first point of contact that is more often able to take the medically relevant steps itself.
23 Finally, it can be considered certain that the services of persons with the postgraduate titles of general internal medicine (formerly general medicine and internal medicine), general practitioner and paediatrics and adolescent medicine are to be counted as part of family medicine. These are the persons who were exempt from the licensing restriction when the so-called licensing freeze was reintroduced in 2013 in accordance with aArt. 55a KVG and who were thus recognised by the legislature as primary care providers.
B. Legislative mandates for the Confederation (para. 2)
1. General regulatory content and order of competences
24 While the mandate to the Confederation and the cantons according to Art. 117a para. 1 FC is of a purely programmatic nature, Art. 117a para. 2 FC gives the Confederation a legislative mandate and thus the duty to take regulatory action in the area of initial and continuing training and the practice of the profession as well as with regard to the remuneration of services in family medicine. Since the Confederation already had this competence, at least in the area of private law, on the basis of Art. 95 FC and in the area of health and accident insurance on the basis of Art. 117 FC, the legislative mandate is sometimes ascribed a purely appellative character. Nevertheless, it should be noted that in the area of primary health care, the provision today establishes a comprehensive, subsequently derogatory federal competence both for the private-law sector and for professional practice in the public-law sector. The exact scope of this competence is determined by interpreting the terms "professions of primary health care", "training and further education" and "practice" as well as "services of family medicine".
2. Professions of primary health care
25 As far as the concept of primary health care is concerned, reference should be made to the explanations above. With regard to the question of which professional groups provide the services of primary health care, the Federal Council, when drafting Art. 117a para. 2 FC, assumed in principle that the professions of primary health care were to be defined in detail by the legislature. At the same point, however, it also expressly pointed out that the scope of application was not limited to the primary care physicians classically referred to as general practitioners. Other medical as well as non-medical health professionals (e.g. in the dental, pharmaceutical and nursing fields, nutritional counselling, occupational and physiotherapy, radiology and emergency medical services) also make significant contributions to primary health care and thus fall under this term. The openness of the wording of the provision, which regulates "professions" and not "the professions", explicitly leaves room for subsuming professions other than those known today, depending on medical and social developments. The Health Professions Act, which came into force on 01.02.2020, is likely to be decisive for the definition and inclusion of new health professions, especially since it was enacted on the basis of Art. 117a para. 2 lit. a FC.
3. Provisions on education and training and the exercise of the profession (lit. a)
26 As previously explained, Art. 117a para. 2 lit. a FC grants the Confederation comprehensive competence to regulate the initial and continuing training of the professions in primary health care. Furthermore, the Confederation is given the competence to enact uniform provisions at federal level regarding the practice of these professions. Education and training is to be understood as a "continuum comprising basic vocational training, training at higher technical colleges, universities of applied sciences and universities, occupation-oriented continuing education and postgraduate academic continuing education. CET serves to deepen and broaden the competences acquired during training or to specialise in a particular field or area of activity."
27 The Confederation has already fulfilled its obligation by enacting the Medical Professions Act (MedBG) and the Psychology Professions Act (PsyG) and has subsequently created an (additional) constitutional basis for the provisions in these two enactments. In the area of health professions, it has fulfilled the constitutional mandate by enacting the Health Professions Act (GesBG). It should be noted at this point that with the enactment of the Health Professions Act, the ingress of the Medical Professions Act as well as the Psychology Professions Act was supplemented by Art. 117a para. 2 FC. This was a direct consequence of the fact that Art. 117a para. 2 FC extended the federal government's regulatory competence, which had previously been limited to the private law sector, to the public law sector. The purpose of these decrees is to regulate, among other things, the education and training and professional practice of those who fall within their subjective scope.
4 Appropriate remuneration for the services of general practitioners (lit. b)
28 With the obligation of the Confederation to create regulations on appropriate remuneration for the services of family doctors, one, if not the central demand of the initiative "Yes to family doctor medicine" was fulfilled. After all, the financial disadvantage of family medicine compared to specialist medicine was one of the main reasons for its launch. Without this concession in the preparation of the counter-proposal, the initiative committee would probably not have withdrawn its initiative. Although it is basically already clear from the text of the constitution, it should nevertheless be pointed out that explicitly only the services of family doctors benefit from this constitutional privilege and not the "professions of primary health care" according to lit. a of the provision.
29 The compensation does not take place via a system of direct payments. Rather, a way was found via a corresponding design of the social insurance law tariff structures and price lists, such as TARMED and the analysis list. What is to be understood by appropriate compensation, on the other hand, can hardly be specified in an appropriate manner. The constitution leaves the legislature with more room for manoeuvre than it could possibly have. Ultimately, the view of Gächter/Renold-Burch that the appropriateness of the remuneration "must be measured against the goal of strengthening [...] family medicine" must be agreed.
Recommended further reading
Burch Stephanie, Staatliche Gesundheitsförderung und Prävention, Zürich/Basel 2014.
Gutzwiller Felix/Jeanneret Olivier (Hrsg.), Sozial- und Präventivmedizin Public Health, 2. Aufl., Bern 1999.
Landolt Hardy, Öffentliches Gesundheitsrecht, Public Health Law, Zürich/St. Gallen 2009.
Müller Markus, Zwangsmassnahmen als Instrument der Krankheitsbekämpfung, Basel 1992.
Poledna Tomas/Berger Brigitte, Öffentliches Gesundheitsrecht, Bern 2002.
Poledna Tomas/Kieser Ueli (Hrsg.), Gesundheitsrecht, in: Band VIII – Schweizerisches Bundesverwaltungsrecht (SBVR) von Koller Heinrich/Müller Georg/Rhinow René/Zimmerli Ulrich (Hrsg.), Basel 2005.
Schwendener Myriam, Krankheit und Recht, Zürich/Basel 2008.
Wolf Salome/Mona Martino/Hürzeler Marc (Hrsg.), Prävention im Recht, Basel 2008.
About the authors
Attorney-at-law Prof. Dr. iur. Ralph Trümpler studied at the Universities of Freiburg i.Ü., Zurich and Lucerne. After completing his doctoral thesis in the field of constitutional law, he worked as a clerk at various administrative courts and specialized in public law as an attorney. Since 2018 he has been a lecturer, and since 2023 a professor of administrative law at Kalaidos Law School. At Rudin Cantieni Attorneys at Law AG, he handles mandates in the area of constitutional and administrative law as well as public commercial law.
Gregori Werder, attorney-at-law, advises and litigates in all areas of public law at the law firm Werder Viganò AG, with a focus on public health law, health insurance law and personnel law. In addition, he regularly gives training courses on public law topics and carries out various teaching assignments.
The authors welcome suggestions and comments by e-mail at truempler@rudincantieni.ch and/or g.werder@wvlaw.ch.
Materials
Bekanntmachung der Departemente und der Ämter zum Zustandekommen der Eidgenössischen Volksinitiative «Ja zur Hausarztmedizin» vom 27. April 2010, BBl 2010, S. 2939 ff.
Bekanntmachung der Departemente und der Ämter zum Rückzug der Eidgenössischen Volksinitiative «Ja zur Hausarztmedizin» vom 27. April 2010, BBl 2013, S. 7989.
Botschaft zur Volksinitiative «Ja zur Hausarztmedizin» vom 16. September 2011, BBl 2011, S. 7553 ff. (zit. BBl 2011 7553).
Bundesratsbeschluss über das Ergebnis der Volksabstimmung vom 18. Mai 2014 vom 18. August 2014, BBl 2014, S. 6346 ff. (zit. BBl 2014 6346).
Botschaft zur Änderung des Medizinalberufegesetzes (MedBG) vom 3. Juli 2013, BBl 2013, S. 6205 ff.
Bibliography
Biaggini Giovanni, Kommentar zur Bundesverfassung der Schweizerischen Eidgenossenschaft, 2. Aufl., Zürich 2017.
Gächter Thomas, Was ist «medizinische Grundversorgung»?, Pflegerecht 2015, S. 101 ff.
Gächter Thomas/Filippo Martina, Stärkt der neue «Grundversorgungsartikel» der schweizerischen Bundesverfassung das «Recht auf Gesundheit»?, Bioethica Forum, 8(3):85–89.
Gächter Thomas/Renold-Burch Stephanie, in: Waldmann Bernhard/Belser Eva Maria/Epiney Astrid (Hrsg.), Basler Kommentar, Bundesverfassung, Basel 2015.
Gächter Thomas/Renold-Burch Stephanie, Rechtsgutachten zur Tragweite von Art. 117a Abs. 2 lit. a BV für die Gesundheitsberufe, 12. Mai 2015.
Gächter Thomas/Rütsche Bernhard, Gesundheitsrecht, 4. Aufl., Basel 2018.
Gächter Thomas/Werder Gregori, Gesundheitsberufe 2020 – eine stille Revolution?, Pflegerecht 2019, S. 2 ff.
Filippo Martina, Angemessene Abgeltung der Leistungen nur für die Hausarztmedizin?, Pflegerecht 2015, S. 107 ff.
Kahil-Wolff Hummer Bettina, in: Martenet Vincent/Dubey Jacques, Constitution fédérale, Art. 81 Cst. – dispositions finales, Basel 2021.
Kaufmann Marianne, Was muss oder soll der Bund bei den Berufen der medizinischen Grundversorgung regeln?, Pflegerecht 2015, S. 104 ff.
Tschudi Peter, Geschichte der Hausarztinitiative bis zum Grundversorgungsartikel, Pflegerecht 2015, S. 95 ff.