2006/09/27 - Pl. ÚS 51/06: Non-Profit Hospitals

27 September 2006

HEADNOTES

According

to Art. 1 of the Constitution, the Czech Republic is a democratic

law-based state.  The Constitutional Court has already previously stated

that the Czech Republic adheres to the principles not only of the

formal, but also and above all of the material law-based state.  The

Constitution accepts and respects the principle of legality as a part of

the overall basic conception of a law-based state; positive law does

not, however, bind it merely to formal legality, rather the

interpretation and application of legal norms are subordinated to their

substantive purpose.  As stated above, one of the basic prerequisites

for the functioning of a law-based state is the existence of internal

harmony within its legal order.  It is therefore also necessary that

particular legal enactments be comprehensible and that foreseeable

results follow from them.

The

Constitutional Court emphasizes its consciousness of the fact that the

rights to life and to health, such as they are laid down in Art. 6 para.

1 and Art. 31 of the Charter of Fundamental Rights and Basic Freedoms,

are absolute fundamental rights and values and that it is necessary to

weigh the right to self-government and the right to property precisely

in relation to these absolute values.

In no case does the Constitutional Court call into doubt the right of

the State, in view of its constitutional responsibility to secure the

rights flowing from Art. 31 of the Charter, to select the instruments

for securing these rights, as well as the instruments for the

supervision and regulation of medical facilities providing health care,

since it thereby pursues a legitimate aim.  This right cannot be

conceived of in absolute terms, however, that is, in the sense that, in

the interest of securing it, all other rights and constitutionally

protected values, thus, even the right to self-government and the right

to the protection of property, would be eliminated entirely.



CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC

 


The

Constitutional Court Plenum, composed of its Chairman Pavel Rychetský

and judges Stanislav Balík, František Duchoň, Vlasta Formánková, Vojen

Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká,

Jiří Mucha, Jan Musil, Jiří Nykodým, Miloslav Výborný and  Eliška

Wagnerová, decided on the petition of a group of Senators of Deputies of

the Senate of the Parliament of the Czech Republic, legally represented

by Prof. JUDr. A. G., CSc., proposing the annulment of § 34 para. 2,

second sentence, § 34 para. 3, lit. a), § 34 para. 6, § 40 and the Annex

to Act No. 245/2006 Coll., on Public Non-Profit Institutional Medical

Facilities and on Amendments to Certain Acts, with the Assembly of

Deputies and the Senate of the Parliament of the Czech Republic

participating as parties to the proceeding, as follows:


The provisions of § 34 para. 2, second sentence, § 34 para. 3, lit. a),

§ 34 para. 6, § 40 and the Annex to Act No. 245/2006 Coll., on Public

Non-Profit Institutional Medical Facilities and on Amendments to Certain

Acts, shall be annulled on the day this Judgment is announced.

 


REASONING


I. Summary of the Petition
 

1.

On 4 July 2006 the Constitutional Court received a petition of a group

of Senators of the Senate of the Parliament of the Czech Republic,

legally represented by Prof. JUDr. A. G., CSc. (hereinafter „the

petitioner“) in accordance with Art. 87 para. 1, lit. a) of the

Constitution of the Czech Republic (hereinafter „Constitution“) and § 64

and foll. of Act No. 182/1993 Coll., on the Constitutional Court, as

subsequently amended (hereinafter „Act on the Constitutional Court“),

proposing the annulment of § 34 para. 2, second sentence, § 34 para. 3,

lit. a), § 34 para. 6, § 40 and the Annex to Act No. 245/2006 Coll., on

Public Non-Profit Institutional Medical Facilities and on Amendments to

Certain Acts (hereinafter „Act No. 245/2006 Coll.“).
 

2.

In its petition, the petitioner stated that it does not contest Act No.

245/2006 Coll. in its entirety.  It contests only the above-designated

provisions which conflict with the constitutional order of the Czech

Republic.  In the petitioner’s view, the contested provisions are in

conflict with Art. 11 of the Charter of Fundamental Rights and Basic

Freedoms (hereinafter „the Charter“) and Art. 8 and Art. 101 of the

Constitution, as it interferes, in a constitutionally impermissible

manner, with the right to own property and with the constitutionally

guaranteed right to self-government, that is, with the right of

autonomous territorial units autonomously to administer their own

affairs.
 

3. Regarding the

petition proposing the annulment of § 34 para. 3, lit. a), § 40 and the

Annex to Act No. 245/2006 Coll., the petitioner states that Act No.

245/2006 Coll. creates a „network of public non-profit institutional

medical facilities“ (hereinafter „public medical facilities“) and it

presupposes that this network will be formed in part by currently

existing medical facilities (these are enumerated in the Annex to the

Act) and in part by medical facilities that are newly emerging, which

from their inception will already have the appropriate legal form in

accordance with § 1 para. 1 of this Act.  Thus, those medical facilities

which are listed in the Annex to the Act will ex lege be directly

placed into the network of public medical facilities. These are,

specifically, medical facilities, whose founder is the State,

alternatively the competent Ministry, further medical facilities which

take the form of contributory organizations and whose founders are

municipalities or regions, further are included here those medical

facilities which are in the legal form of a commercial company

(joint-stock companies and limited liability companies).  Also the

municipalities and regions will be the incorporators and partners or

shareholders of these medical facilities.  The petitioner is of the view

that, to the extent that title to individual medical facilities,

including material property items, rights, and obligations which are

connected with their existence, was transferred to the municipalities

and regions by Act No. 157/2000 Coll., on the Passage of Title to

certain Material Property Items, Rights, and Obligations from the Czech

Republic to Regions, as subsequently amended (hereinafter „Act No.

157/2000 Coll.“), and Act No. 290/2002 Coll., on the Passage of Title to

certain other Material Property Items, Rights, and Obligations of the

Czech Republic to Regions and Municipalities, Civic Associations

Operating in the Area of Physical Education and Sport and on Related

Changes, and on the Amendment of Act No. 157/2000 Coll., as subsequently

amended (hereinafter „Act No. 290/2002 Coll.“), and on the strength

thereof, the municipalities and regions became the founders of the

medical facilities, then these facilities were legally transformed from

contributory organizations of the State, alternatively organizational

components, into contributory organizations of the regions,

alternatively organizational components of the regions and

municipalities, the legal regime of which is, after the transfer was

accomplished, governed by Act No. 250/2000 Coll., on the Budget Rules of

the Territorial Budgets, as subsequently amended.  In consequence of

the contested provisions of Act No. 245/2006 Coll., however, territorial

self-governing units were deprived of the possibility to decide on the

existence and operation of those contributory organizations and

organizational components.  In contrast, the Ministry of Health became

empowered to decide on the extent and types of health care which should

be provided in these medical facilities (§ 33 of Act No. 245/2006

Coll.), moreover with the minimal opportunity for the founders, which in

the future will continue to be the territorial self-governing units, to

intervene into these affairs.
 

4.

In the petitioner’s view Act No. 245/2006 Coll. in no way ensures that

the medical facilities, alternatively their founders, will be reimbursed

by the State the expenses of arranging for the activities which the

Ministry will mandatorily ordain for them.  This will result in an

intrusion into the financial autonomy of the territorial self-governing

units, which is guaranteed in Art. 101 para. 3 of the Constitution.  It

also results in an interference with their right to own property in the

sense of Art. 11 of the Charter, as they will be prevented from deciding

on the disposition of their property due to the fact that medical

facilities must have to perform the tasks imposed upon them by statute

and by decision of the Ministry.  If they violate these duties, then it

will be possible to impose fines of a significant amount, either upon

the territorial self-governing units, as founders of the public medical

facilities, or also directly upon the medical facilities, (cf. § 38 of

Act No. 245/2006 Coll.).  Although the intrusions referred to will occur

on the basis of a statute, and it can be judged that they will also be

in the public interest, however, the appropriate compensation will not

be assured.  In this connection the petitioner stated that Act No.

245/2006 Coll. will have impact not only on the functioning of

contributory organizations and organizational units of the territorial

self-governing units, but will also lead to an intrusion into the

functioning of purely private-law subjects, that is, commercial

companies which provide health care.  In this connection the petitioner

refers to the judgments of the Constitutional Court published in the

Collection of Laws as No. 404/2002 Coll. and No. 211/2003 Coll.
 

5.

The petitioner also stated that the State has assigned to the

territorial self-governing units the obligation to manage the property

of medical facilities and to fulfill the function of their founder even

against the will of the territorial self-governing units mentioned in

Act No. 157/2000 Coll. and Act No. 290/2002 Coll.  It thereby renounced

its own duty to provide citizens with free medical care on the basis of

public insurance and transferred the burden of providing it to the

territorial self-governing units.  In adopting Act No. 245/2006 Coll.

the State left this burden to the territorial self-governing units,

however, it deprived them of the possibility independently to decide to

what extent and under what conditions it would be provided [naturally

while adhering to the conditions terms of Act No. 48/1997 Coll., on

Public Health Insurance and on Amendments and Additions to certain

Related Enactments, as subsequently amended (hereinafter „Act No.

48/1997 Coll.“)].
 

6. In the

petitioner’s view, the interference with purely private property is all

the more emphatic in the case of § 40 paras. 5 and 6 of Act No. 245/2006

Coll., relating to the medical facilities providing health care which

are in the legal form of a commercial companies.  In this case the Act

provides (§ 40 para. 5) that rights in property invested without payment

into the limited liability company, which are listed in the Annex to

the Act, pass without payment to the founder.  No distinction is made

with regard to who invested this property into the medical facility,

under what conditions, or for what purpose.  The Act also does not take

into consideration that such property could, in the interim, have been

assessed, so that the person who invested property into the limited

liability company may in fact lose it potential gain from its

assessment.  Also § 40 para. 6 Act No. 245/2006 Coll. has the character

of an impermissible intrusion upon acquired rights, as it establishes

for the proprietors of limited liability companies which function in the

capacity of medical facilities, the right to a settlement share in

connection with the mandatory termination of their participation in the

company.  There is, however, no public interest in them losing their

ownership interest in such companies, as medical facilities in the form

of commercial companies can perform the tasks connected with health care

delivery just as well, as they are doing at present.  It does not even

make a distinction on the basis of who the proprietor of such company

is, whether they are only territorial self-governing units or other

natural or legal persons.  Those of the statute’s measures are therefore

in evident contradiction with the principle of proportionality, which

requires that a proportionate relation be maintained between the

objective pursued and the means selected.  In the petitioner’s view,

there is no doubt that, in the given case, the means employed were

manifestly inappropriate to the objective pursued, because health care

would be provided even without the adoption of the contested provisions,

which in fact result in the expropriation of private property.
 

7.

The petitioner takes it as a given that health care of the inhabitants

of a region, among other things, falls within the regions‘ competence. 

If § 34 para. 2, second sentence of Act No. 245/2006 Coll. places an

obligation upon the regions that at least one public medical facility

should be located in each district within its territory and if § 34

para. 6 of the cited Act places an obligation upon regions to supplement

the network of public medical facilities, to the extent that

municipalities or other founders do not do so, then it is evident that

the supplementation of the network of public medical facilities will

hinge exclusively on the decision of the Ministry, which prescribes the

requirements for the functioning of the network of medical facilities (§

33 of Act No. 245/2006 Coll.)
 

8.

The petitioner does not call into doubt the right of the State to form a

network of medical facilities, however, in doing so it cannot intervene

into the sphere of autonomous competence of territorial self-governing

units and may not offend against their possibility to exercise their

property rights in accordance with their own choice and autonomy.
 

9.

The petitioner joined, its petition seeking the annulment of the

contested provisions of Act No. 245/2006 Coll., with a proposal,

pursuant to § 39 of the Act on the Constitutional Court, requesting that

the petition be heard as a matter of priority, with the justification

that, although the Act came into effect on the day it was promulgated,

nonetheless the legal effects consisting in the fact that transformation

of the medical facilities listed in the Annex to the Act into public

medical facilities, will occur only following the expiry of the 180 day

period running from the day this Act enters into force (§ 40 para. 1). 

Should the contested provisions be annulled only after the 180 day

period has expired, then it would lack any significance whatsoever,

since the effects foreseen in the Act would have already irreversibly

taken place.
 


II. The Formal Prerequisites for Hearing the Petition and the Constitutionality of the Legislative Procedure
 

10.

In conformity with § 68 para. 2 of the Act on the Constitutional Court,

in proceedings on the annulment of statutes or other legal enactments,

the Constitutional Court is obliged to adjudge whether Act No. 245/2006

Coll., whose individual provisions have been contested, whether it was

adopted and issued constitutionally, within the confines of the powers

set down in the Constitution, in the constitutionally prescribed manner,

and whether the formal preconditions for the substantive adjudication

of the petition have been satisfied.
 

11.

In accordance with § 64 para. 1, lit. b) of the Act on the

Constitutional Court, a group of at least 17 Senators is entitled to

submit a petition, under Article 87 para. 1, lit. a) of the

Constitution, proposing the annulment of an Act or individual provisions

thereof.  As the Constitutional Court ascertained from the submitted

powers-of-attorney of 21 June 2006 and 20 July 2006, a group of 28

Senators altogether submitted the petition.
 

12.

The Constitutional Court ascertained from the electronic library of the

Assembly of Deputies of the Parliament of the Czech Republic, that a

group of Deputies submitted the bill to the Assembly of Deputies on 2

November 2004.  The bill was distributed to the Deputies on 4 November

2004 as Print No. 810/0.  The bill was adopted on 8 February 2006 at the

53rd Session of the Assembly of Deputies by Resolution No. 2186, with

98 of the 169 Deputies present (with 85 constituting a majority), voting

in favor of the bill.
 

13.

The Constitutional Court ascertained from the electronic library of the

Senate of the Parliament of the Czech Republic, that the Assembly of

Deputies transmitted the bill to the Senate on 14 February 2006.  On 15

March 2006, the full Senate debated the bill at its 10th Session of its

5th Electoral Term and rejected the bill by its Resolution No. 364.  57

of the 68 Senators present voted for the resolution.  On 21 April 2006,

at its 55th Session, the Assembly of Deputies voted once again on the

returned bill and adhered to its support for the original bill, as 107

of the 171 Deputies present (with 101 constituting the relevant

majority) voted in favor of the bill.
 

14.

On 21 April 2006 the Act was delivered to the President of the Republic

for his signature.  The President of the Republic declined to sign the

Act, and on 5 May 2006 he returned it to the Assembly of Deputies.
 

15.

On 23 May 2006 at its 56th Session the Assembly of Deputies voted on

the Act returned by the President of the Republic and overrode the

President’s veto (Resolution No. 2469).  On 31 May 2006 the Act was

promulgated in part 79 of the Collection of Laws as No. 245/2006 Coll.
 

16.

Constitutional Court has ascertained that the Parliament of the Czech

Republic adopted Act No. 245/2006 Coll. by means of a constitutionally

conforming legislative process and that it was signed by the competent

constitutional officials, was duly promulgated in the Collection of

Laws, and came into force on 31 May 2006.
 


III. Summary of the Positions of the Government and the President of the Republic, and of the Deputies‘ Debate
 

17.

As the foundation for its decision, the Constitutional Court procured

the stenographic record, resolutions and Assembly printed documents

freely accessible on the Assembly of Deputies‘ and Senate’s web sites,

at www.psp.cz. and www.senat.cz, as well as the position of the

President of the Republic, Václav Klaus, on his return of Act No.

245/2006 Coll., found on the web site, www.hrad.cz.
 

18.

It is stated, in the 1 December 2004 Government Position No. 1197 on

draft Act No. 245/2006 Coll., that the Government discussed and

evaluated the draft Act at its 1 December 2004 meeting.  Although it

agreed with the starting points and conclusions of this draft Act, it

drew attention to the fact, that it was neither a thoroughly elaborated

and polished, nor a comprehensive, draft, and had numerous substantive

and legislative deficiencies, in particular in the following respects:

- insufficient regulation of the management of public non-profit

institutional medical facilities, which could result in a further

escalation of wastefulness and inefficient drawing upon public funds;
- the network of medical facilities is not entirely clearly defined;
- it fails to respect the competence of regions in matters of ensuring health care within their respective territories;

- the legal arrangements relating to the establishment and termination

of public non-profit institutional medical facilities are internally

conflicting and unclear;
- the Government does not agree with the

conclusion, stated in the Explanatory Report submitted with the bill,

that the adoption of the bill would have an overall neutral impact in

terms of the state budget, as well as on the budgets of municipalities

and regions.
 

19. In the

statement of reasons given for his 5 May 2005 decision to return to the

Assembly of Deputies of the Parliament of the Czech Republic the adopted

bill, No. 245/2006 Coll., the President of the Republic, V. K., stated

that the Czech health care services need a fundamental systemic change,

and this bill did not usher in such changes.  In its logic, the bill

entails the abandonment of the principles upon which our entire society –

health care services included – has progressed since November, 1989,

that is, on respect for private property, for the plurality of ownership

relations, for the free choice of doctors and health care facilities. 

In the form it takes, this bill destabilizes health care services,

needlessly divides doctors and other health care professionals, sharpens

the political atmosphere in the country, and causes patients, as well

as the entire Czech society, anxiety.  Moreover, it creates the false

impression that the financial crisis in health care will be resolved by

the fact that hospitals are „non-profit“.  The bill favors public

non-profit institutional medical facilities and in essence creates

pressure for other types of health care facilities to switch over into

this form.  In consequence it violates the rule enshrined in Art. 11

para. 1 of the Charter, which provides that each owner’s property right

shall have the same content and enjoy the same protection.  The

objective of this bill, however, is to create an advantageous

environment for the existence and operation of hospitals solely of the

public type, instead of creating a suitable environment for all forms of

ownership.
 

20. The

Constitutional Court has ascertained from the stenographic record,

resolutions, and assembly prints that, in the course of the legislative

process in the Assembly of Deputies of the Parliament of the Czech

Republic, a whole host of proposed amendments to Act No. 245/2006 Coll.

were drafted and sizeable number of Deputies took part in the debate,

often in emotive speeches.
 

21.

The Organizational Committee designated as its rapporteur, Deputy J.

J., which has from the beginning drawn attention to the fact that it is

not appropriate for such a foundational norm to be drafted by Assembly

initiative, and he illustrated this point by citing the Act on Credit

Unions.  He also concurred with the Government’s reservations to the

bill and repeatedly drew attention, in relation to the comments of the

expert public, to the problems which the Act precipitates.  He

illustrated the Acts inadequacy also by the example of the Annex to the

Act, when he stated that in the districts of Jeseník and Šumperk, for

example, no medical facilities were registered into the network, so that

such medical facilities will need to be constructed.  He saw a further

problem in the fact that there are hospitals listed in the Annex which

do not exist, as their designation in the Annex does not correspond to

their actual designation or identification number (for ex., the hospital

Kroměříž contributory organization, in actuality the Kroměříž Hospital,

a joint-stock company which also has a different identification number;

the Planý Hospital, included in the list, which is in bankruptcy,

etc.).  Stated simply, he spotted in the bill a threat to the

accessibility and quality of the health care as it currently stands.
 

22.

In contrast thereto, the Minister of Health, D. R., stated that the

main reason the Act was initiated and introduced, was to forestall the

blanket privatization of hospitals, further to establish clear,

resolute, and permanent supervision of the management of public funds,

and to introduce a systematic, regular, and directed quality control in

individual hospitals.
 


IV. Summary of the Significant Portions of the Statements of Views of Parties to the Proceeding
 

23.

In accordance with § 42 para. 4 and § 69 of the Act on the

Constitutional Court, the  Constitutional Court sent the petition

proposing the annulment of the contested provisions of Act No. 245/2006

Coll. to the Assembly of Deputies and the Senate of the Parliament of

the Czech Republic.
 

24. In

its 18 August 2006 statement of views, the Assembly of Deputies of the

Parliament of the Czech Republic stated that, in actuality, medical

facilities of which the State is the founder only cover a part of the

necessary, mostly specialized, health care and are not capable to

satisfy all of the legitimate requirements of ensuring this care with a

view to the constitutional and international law obligations laid down

in Art. 31 of the Charter, Art. 12 of the International Covenant on

Economic, Social and Cultural Rights, Art. 24 of the Convention on the

Rights of the Child, and Arts. 11 and 13 of the European Social

Charter.  By its adoption of Act No. 245/2006 Coll., the legislature was

pursuing the aim of ensuring, through the application of Art. 11 para.

2, the first sentence, of the Charter, the health care of the

inhabitants, where in pursuance of this objective it defined the

property and the manner of dealing with it such that it designated by a

specific enumeration in the Annex to the Act the legal persons – the

owners or users of this property – who are subject to regulation

according to this Act.  It thus does nothing other than to specify the

property indispensable for ensuring the protection of health and lays

down that solely certain legal persons, that is, public non-profit

institutional medical facilities, may hold, and only under designated

conditions, title to property individualized in this manner, unless

their founder retains title thereto (§ 13 para. 2 of Act No. 245/2006

Coll.).  However, not even this statutory limitation is absolute, as Act

No. 245/2006 Coll. itself breaches it by allowing for legal

transactions to be carried out by which the rights in the property of

public medical facilities or their founders are alienated (§ 6 paras. 9

and 10 of Act No. 245/2006 Coll.).  In its view, the legislature is

authorized, in view of the constitutional responsibility of the State

and the territorial self-governing units to secure the right to the

protection of health, to select the instrument for securing these

rights, as well as the instruments of supervision and regulation of the

medical facilities providing health care.  Territorial self-governing

units are public corporations which can hold their own property and

manage it in accordance with their own budget.  If then Act No. 245/2006

Coll. provides for a certain manner of economic-legal form, in which

the property of territorial self-governing units may be dealt with,

which serve the public interest in ensuring health care as a public

service, it thereby designates their tasks solely in conformity with the

constitutional status of the regions and municipalities as public-law

corporations, moreover in a manner permitted by constitutional and

statutory norms.  In this case the legislature laid down that this

obligation should be ensured by the health insurance companies through

the medical facilities with which the health insurance companies had

concluded a contract on the provision and reimbursement of health care,

by means of which these medical facilities form a network of health

insurance companies‘ contractual medical facilities.  In order fully to

ensure geographic accessibility and the quality of the provided health

care, the legislature in addition ensured, by Act No. 245/2006 Coll.,

that the health insurance companies were obliged to conclude a contract

on the provision and reimbursement of health care with public medical

facilities (both public and private) included into the network of public

medical facilities, moreover to the extent to which public medical

facilities are obliged to provide health care.  In conclusion of its

statement, the Assembly of Deputies stated that the legislative body

acted in the conviction that the adopted act is in harmony with the

Constitution and with our legal order.  It is up to the Constitutional

Court to adjudge the constitutionality of the provisions of Act No.

245/2006 Coll. contested in the petition.
 

25.

In its 9 August 2006 statement of views of the Senate of the Parliament

of the Czech Republic described the procedure for the Senate’s

assessment of Act No. 245/2006 Coll.  The Senate debated the bill on 15

March 2006 and adopted Resolution No. 364, which rejected the bill.  In

discussing the bill, the Senate held extensive debates, both in the

committee to which the bill was assigned and in the full Senate, which

focused in particular on the problem of the creation of that part of the

network of public medical facilities which the Act forms from the

medical facilities enumerated in the Annex to the Act and the problem of

the proposed statutory scheme laying down the regions‘ responsibility

to ensure that relevant requirements of the Act be carried out by the

network of public medical facilities in the regions.  The debate focused

primarily on those provisions which it has been proposed be annulled. 

Since, by Acts Nos. 157/2000 Coll. and 290/2002 Coll., the State

transferred title to certain of its medical facilities to the

territorial self-governing units (although as the subject which, in the

sense of the Charter, guaranteeing the provision of health care, it

could itself have created the network of medical facilities already in

2000), at the present it is not in harmony with the constitutional

principles of the protection of property to create a network of medical

facilities to the detriment of the property rights of those subjects. 

It was also criticized that, in the creation of the list of medical

facilities (the Annex to the Act) which should in fact form the backbone

of the network of public non-profit institutional health facilities,

insufficient account was taken of the consultations and opinions of

various interested parties, whether they were the representative bodies

of municipalities or regions, expert organizations of the medical

profession, or subjects representing patients; and above all no

unambiguous criterion was set down the effectuation of which would

justify the inclusion or non-inclusion of appropriate medical facilities

into the list.  The Senate thus evaluated this list as being formed

non-objectively and unsystematically.  It stressed the fact that the

list was also entirely at random, it was supplemented by 9 medical

facilities on the basis of proposed amendments that were not submitted

until the second reading in the Assembly of Deputies; it was also

ascertained that in some cases the same facility was included on the

list twice, for ex. the Litomyšl Hospital.  In particular, it was

pointed out that the existence of a list of selected medical facilities

creates, without justification, unequal conditions and appears to be

liquidating the existence of those medical facilities which will not

form a part of the network of public non-profit institutional health

facilities.  It thereby violated the principle of equality which the

Constitutional Court explained in a number of its judgments (see

Judgment No. Pl. US 22/1992 of 8 October 1992, in The Collection of

Rulings and Judgments of the Constitutional Court of the ČSFR, under No.

11).  As the conclusion of its statement, the Senate stated that a

majority finds a violation of the above-mentioned constitutional

principles and therefore rejected the bill.
 

26.

On 18 August 2006, the Constitutional Court Plenum received the

Ministry of Health’s statement of views, in which is stated that the

final version of the Act was adopted with its approval.  The Ministry of

Health does not concur with the objections raised by the petitioner, as

in its view it places the obligation to provide for the inhabitants‘

health care solely on the State’s shoulder and does not at all wish to

recognize this task also as an obligation of territorial self-governing

units – public law corporations.  The Ministry of Health considers the

petitioner’s perspective on Art. 31 Charter to be a simplification, as

this Article does not refer to the State at all and has not merely

vertical, but also horizontal effects in relation to private-law

subjects, above all in relation to health care providers.  If Act No.

245/2006 Coll. prescribes a certain manner of economic-legal form in

which it is possible to dispose of the property of territorial

self-governing units which serve, in the public interest, to ensure the

provision of health care as a public service, in harmony with the

constitutional status of the regions and municipalities as public-law

corporation, moreover in a manner permissible under the constitutional

and statutory norms.  In view of the purpose the property in question

serves, the Ministry of Health considers as reasonable the interferences

with proprietary relations which follow from the provisions of Act No.

245/2006 Coll., which authoritatively (ex lege) transform contributory

organizations of the State, regions, and municipalities, as well as

joint-stock companies and limited liability companies (§ 40 and the

Annex), into public non-profit institutional medical facilities.
 

27.

The statements of the parties to the proceeding as well as that of the

Ministry of Health were sent to the attention of the petitioner.  In its

1 September 2006 reply to the statement of the Assembly of Deputies of

the Parliament of the Czech Republic, it stated that the Assembly of

Deputies has closed its eyes to the fact that, even in cases where the

State take a certain measure in the public interest but at the same time

that measure interferes with the constitutionally guaranteed rights of

other subjects, then it is imperative to scrutinize whether the chosen

measures are legitimate and proportional in terms of the means used and

the objective pursued.  In reply to the statement of the Senate of the

Parliament of the Czech Republic, the petitioner stated that it entirely

concurs with the grounds which led the Senate to reject the bill and

emphasized that the minority support for the bill rested precisely upon

the State’s obligation to ensure the protection of the health of

inhabitants without, however, taking into account the necessity to weigh

whether the adopted measures were commensurate in relation to the

necessary limitation upon the constitutionally guaranteed rights, which

the effectuation of the Act brought about.  In reply to the Ministry of

Health’s position, the petitioner then noted that the obligatory

establishment of a network of non-profit medical facilities accompanied

by an interference with constitutionally guaranteed rights was not

indispensable, the created network of non-state medical facilities (cf.

the Annex to the Act) then lacked any sort of rationality in terms of

the selection of individual medical facilities.  The petitioner is of

the view that the chaotic selection of medical facilities which occurred

is in no way congruous with the adoption of measure with such serious

consequences for the rights of territorial self-governing units and

other persons, in consequence of which such a solution is deprived of

the legitimacy resting upon its rationality.
 


V. The Wording of the Contested Provisions
 

28. The text of the contested provisions of Act No. 245/2006 Coll. reads as follows:
- § 34 para. 2, second sentence:
„The regions shall ensure that in each district within their territory is located at least 1 public medical facilities“.
 

- § 34 para. 3, lit. a):
§ 34 para. 3: the network of public medical facilities is made up of
         „a) public medical facilities created in accordance with § 40 para. 1
 

- § 34 para. 6:
„If

the network of public medical facilities in a region does not satisfy

the requirement in accordance with paragraph 2, the region shall discuss

the supplementation of the network of public medical facilities with

the municipality within whose territory, in terms of the requirements of

the network of public medical facilities in accordance with paragraph

2, health care to the prescribed extent should be provided by a public

medical facility, should that municipality, or some other founder, not

establish a public medical facility, then the region shall establish

it“.

- § 40:
„(1) The legal

persons listed in the Annex to this Act shall become, upon the expiry of

the 180 day period running from the day this Act enters into force,

public medical facilities.  Should a legal person listed in the Annex to

this Act be dissolved or transformed prior to the expiry of the period

in the preceding sentence, then such transaction shall be invalid.
(2)

Persons who established or founded the legal persons listed in the

Annex to this Act, they shall have the status of a founder in accordance

with this Act.
(3) On the day a public medical facility comes into

being in accordance with paragraph 1, all rights and obligations,

including the rights and obligations from employment law relations of

the legal person listed in the Annex to this Act, from which the public

medical facility originated, shall pass to the public medical facility.
(4)

The property which contributory organizations referred to in the Annex

to this Act are competent to manage, shall, in the amount which their

founders invested into the contributory organizations when founding it,

be deemed in accordance with this Act to be property invested by the

founder into a public medical facility as of the day that public medical

facility comes into being.
(5) Ownership rights in the property of

the joint-stock companies listed in the Annex to this Act, which their

incorporators invested into them when establishing them, shall, on the

day a public medical facility comes into being, pass to the founder.
(6)

On the day a public medical facility comes into being pursuant to

paragraph 1, the proprietor who established a limited liability company

listed in the Annex to this Act shall become entitled to a settlement

share.  The settlement share shall be covered by the State.  The payment

of the settlement share shall be made by the Ministry of Finance on the

proposal of the founder, substantiated with detailed computations and

financial statements, certified by an auditor, relating to the day

immediately preceding the coming into being of the public medical

facility.  Such proposal may be submitted within 3 months of the day the

public medical facility comes into being, and, if it is not, the right

to the settlement share shall be extinguished.
(7) The medical

facility referred to in § 34 para. 4, the last sentence, may be

substituted for by a public medical facility by the founder deciding on

its dissolution, in the case of a commercial company on its dissolution

without liquidation, so that the property and all rights and obligations

of the dissolved medical facility, including rights and obligations

from employment law relations, pass to the public medical facility on

the day it comes into being, which immediately follows the day on which

the medical facility was dissolved.
(8) The founder of a public

medical facility referred to in paragraph 1 is obliged, no later than 30

days prior to the public medical facility coming into being, to inform

the Ministry of Health of all necessary data recorded in the register of

public medical facilities and to submit all necessary documents which

form a part of the register of public medical facilities.
 

- Annex to Act No. 245/2006 Coll.:
In

the Annex to Act No. 245/2006 Coll. are enumerated the legal persons

which become public medical facilities upon the expiry of the 180 day

period running from the day this Act enters into force (§ 40 para. 1).
 


VI. The Oral Hearing
 

29.

At the 27 September 2006 oral hearing, the petitioner’s legal

representative referred to the written petition, as well as to all

further submissions in this matter.  The petitioner has no objection in

principle to Act No. 245/2006 Coll. as such, and is only proposing the

annulment of those provisions which are manifestly unconstitutional. 

The legislature worked from the situation that existed in 2000, when the

State was the owner of medical facilities and could have established a

network of medical facilities from medical facilities to which it held

title.  When it did so in 2005, by virtue of the contested provisions of

Act No. 245/2006 Coll., this resulted in an intrusion upon the right of

self-government and an interference with the right of property.  Such

interferences must preserve the essence of the right.  As a result of

adoption of the contested provisions, the State has overstepped its

lawful bounds and violated the principle of proportionality.  The

petitioner’s legal representative proposed the annulment of the

contested provisions of Act No. 245/2006 Coll.
 

30.

The Chairman of the Assembly of Deputies of the Parliament of the Czech

Republic, Ing. M. V., stated that the Assembly of Deputies had

expressed its views on the petition in its written position.  The

Ministry of Health also submitted its position.  The Ministry of

Health’s statement of views is in harmony with that of the Assembly of

Deputies, and the Assembly of Deputies agrees with it in its entirety

and refers to the views stated therein.  It further emphasized its

disagreement with the petitioner’s assertion that the State may

establish a network of private non-profit institutional medical

facilities solely from the medical facilities to which it retained

title.  The legislative intent was to ensure, through private non-profit

institutional medical facilities, the fulfillment of its obligation to

provide care also to citizens of Member States of the European Union and

citizens of other foreign states, as well as to those of its citizens

who are not registered in the Czech Republic’s system of health

insurance.  He reminded the Court that the provision of health care is

financed from public health insurance and public budgets.  In its

petition proposing the annulment of the contested provisions of Act No.

245/2006 Coll., the group of Senators takes issue also with further

provisions of this Act, but which it did not propose be annulled.  In

conclusion, the Chairman of the Assembly of Deputies expressed the hope

that the Constitutional Court would not take into consideration previous

political interests and by its decision take upon itself responsibility

for ensuring citizens‘ health care.  He therefore proposed that the

petition be rejected on the merits.
 


VII. Actual Review
 

31.

The petitioner proposes the annulment of the contested provisions of

Act No. 245/2006 Coll., which modifies in a fundamental way the system

of health care for citizens of the Czech Republic.
 

32.

The petitioner’s constitutional objections against the contested

provisions proceed along two lines:  on the one hand, in terms of the

protection of property rights and, on the other, in terms of

encroachment upon self-government.  The petitioner finds the contested

provisions of Act No. 245/2006 Coll. to be unconstitutional because they

affect the independent competence of autonomous territorial units and

they do not respect the property rights of autonomous territorial units

and, as the case may be, other natural and legal persons; it therefore

reproaches them as in conflict with Art. 11 of the Charter and Arts. 8

and 101 of the Constitution:
 

Art. 11 of the Charter reads:
(1)

Everyone has the right to own property.  Each owner’s property right

shall have the same content and enjoy the same protection.  Inheritance

is guaranteed.
(2) The law shall designate that property necessary

for securing the needs of the entire society, the development of the

national economy, and the public welfare, which may be owned exclusively

by the state, a municipality, or by designated legal persons; the law

may also provide that certain items of property may be owned exclusively

by citizens or legal persons with their headquarters in the Czech and

Slovak Federal Republic.
(3) Ownership entails obligations.  It may

not be misused to the detriment of the rights of others or in conflict

with legally protected public interests.  Property rights may not be

exercised so as to harm human health, nature, or the environment beyond

the limits laid down by law.
(4) Expropriation or some other

mandatory limitation upon property rights is permitted in the public

interest, on the basis of law, and for compensation.
(5) Taxes and fees shall be levied only pursuant to law.

Art. 8 of the Constitution reads:
The right of autonomous territorial units to self-government is guaranteed.

Art. 101 of the Constitution reads:
(1) Municipalities shall be independently administered by their representative body.
(2) Higher self-governing regions shall be independently administered by their representative body.
(3)

Territorial self-governing units are public law corporations which may

own property and manage their affairs on the basis of their own budget.
(4)

The state may intervene in the affairs of territorial self-governing

units only if such is required for the protection of law and only in the

manner provided for by statute.
 

33.

The assessment on the part of the Constitutional Court Plenum of the

given arguments necessitates a reconstruction of the intent and wording

of those provisions of ordinary (sub-constitutional) law which relate to

the issue of the conditions for health care delivery.
 

34.

The cited articles establish the constitutional foundation for the

exercise of territorial self-government, to which is linked and is

further developed (within constitutional bounds) by ordinary

legislation, represented primarily by Act No. 128/2000 Coll., on

Municipalities, as subsequently amended (hereinafter „Act No. 128/2000

Coll.“), by Act No. 129/2000 Coll., on Regions, as subsequently amended

(hereinafter „Act No. 129/2000 Coll.“) and by Act No. 131/2000 Coll., on

the Capitol City of Prague, as subsequently amended (hereinafter „Act

No. 131/2000 Coll.“).
 

35.

According to § 7 para. 1 of Act No. 128/2000 Coll., municipalities

administer their affairs independently (hereinafter „independent

competence“).  State bodies and bodies of the regions may intervene into

the independent competence only if such is required to protect the law

and only in the manner laid down by statute.  The ambit of their

independent competence can be restricted solely by statute.  Section 35

para. 2 of Act No. 128/2000 Coll. further obliges municipalities in

their independent competence to take care, within their territory in

harmony with local conditions and customs, to create the conditions for

the development of social care and for the satisfaction of the needs of

their citizens.  This is primarily a matter of satisfying their need for

housing, the protection and promotion of health, transportation, the

needs for information, training and education, overall cultural

development and the protection of public order.
 

36.

A similar legislative scheme is found also in Act No. 129/2000 Coll.,

which in its § 2 para. 1 obliges the regions to administer their affairs

independently (hereinafter „independent competence“).  State bodies may

intervene into their independent competence, only if such is required

to protect the law and only in the manner laid down by statute.  In

addition, the ambit of their independent competence can be restricted

solely by statute.  The regions are to take care of the overall

conditions within their territory and the needs of their citizens (§ 1

para. 4).  In conformity with the corresponding provisions of § 35 para.

2 of Act No. 128/2000 Coll., the issues of the protection and promotion

of health and the delivery of health care can also be classified as

coming within the needs of citizens of a region, even though (in

contrast to Act No. 128/2000 Coll.,) Act No. 129/2000 Coll. does not

explicitly so state.  According to § 14 para. 1 of Act No. 129/2000

Coll., matters fall under the independent competence of a region if they

are in the interest of the region and of that region’s citizens, unless

it is a matter within the delegated competence of regions.  With the

exception of issuing regional regulations, the matters listed in §§ 11,

35, 36, and 59 of Act No. 129/2000 Coll., in particular, fall within the

independent competence of regions, as do also those matters when are

entrusted to their independent competence by statute (§ 14 para. 2).  In

the exercise of their independent competence, regions may found and

establish legal persons and organizational components of the regions,

unless provided otherwise by statute (§ 14 para. 3).
 

37.

Health is one of the most significant factors influencing the quality

of human life and it belongs among the absolute fundamental rights and

values.  The Constitutional Court bases its considerations on the

constitutional conception of the protection of health, which is

enshrined in Art. 6 para. 1 of the Charter (according to which:

„Everyone has the right to life.  Human life is worthy of protection

even before birth.“) and in Art. 31 of the Charter (which provides:

„Everyone has the right to the protection of his health. Citizens shall

have the right, on the basis of public insurance, to free medical care

and to medical aids under conditions provided for by law.“).
 

38. Further fundamental starting points of constitutional law are the following:
 

- Art. 2 of the Convention for the Protection of Human Rights and

Fundamental Freedoms (published in the Collection of Laws as No.

209/1992 Coll.), which provides that everyone’s right to life shall be

protected by law.
- Art. 12 of the International Covenant on

Economic, Social and Cultural Rights (proclaimed in the Collection of

Laws as No. 12/1976 Coll.), which provides in its para. 1, that the

States Parties to the Covenant recognize the right of everyone to the

enjoyment of the highest attainable standard of physical and mental

health.  In para. 2, lit. d) of the cited Article, the States Parties

bind themselves to take the steps necessary to achieve the full

realization of this right, such steps to include the creation of

conditions which would assure to all medical service and medical

attention in the event of sickness.
- Art. 24 of the Convention on

the Rights of the Child (proclaimed in the Collection of Laws as No.

104/1991 Coll.), in which the States Parties recognize the right of the

child to the enjoyment of the highest attainable standard of health and

to facilities for the treatment of illness and rehabilitation of health.

- Arts. 11 and 13 of the European Social Charter (proclaimed as No.

14/2000 in the Collection of International Agreements) in which the

Contracting Parties undertake, either directly or in co-operation with

public or private organisations, to take appropriate measures to ensure

the effective exercise of the right to protection of health and to

provide each person adequate assistance, and, in case of sickness, the

care necessitated by his condition.
- Arts. 2 and 3 Convention for

the Protection of Human Rights and Dignity of the Human Being with

regard to the Application of Biology and Medicine: Convention on Human

Rights and Biomedicine, as amended by its Supplemental Protocol of 12

January 1998 (proclaimed as Nos. 96/2001 and 97/2001 in the Collection

of International Agreements) provide that the interests and welfare of

the human being shall prevail over the sole interest of society or

science and bind the parties to the Convention to take appropriate

measures with a view to providing, within their jurisdiction, equitable

access to health care of appropriate quality.
 

39.

According to the Conclusions of the Council of the European Union

(2006/C 146/01) published in the Official Journal of the European Union

on 22 June 2006, the health systems are a fundamental part of Europe‘s

social infrastructure.  Its members do not under-estimate the challenges

that lie ahead in reconciling individual needs with the available

finances.  In discussing future strategies, their shared concern should

be to protect the values and principles that underpin the health systems

of the European Union.  The Council of the European Union also noted

that the European Commission had stated that it will develop a Community

framework for safe, high quality and efficient health services, by

reinforcing cooperation between Member States and providing clarity and

certainty over the application of Community law to health services and

healthcare.  The Statement on common values and principles, which is a

statement by the 25 Health Ministers of the European Union about the

common values and principles that underpin Europe's health systems, and

which is an Annex to the mentioned Conclusions of the Council of the

European Union, designates, as overarching values, universality, access

to good quality care, equity, and solidarity, which are shared by

different European Union institutions in their work.  Universality means

that no-one is barred access to health care; equity relates to equal

access according to need, regardless of ethnicity, gender, age, social

status or ability to pay; solidarity is closely linked to the financial

arrangement of our national health systems and the need to ensure

accessibility to all.  All health systems in the EU aim to make

provision, which is patient-centered and responsive to individual need. 

However, different Member States have different approaches to making a

practical reality of these values.  As Health Ministers, noted

increasing interest in the question of the role of market mechanisms

(including competitive pressure) in the management of health systems; at

the same time, they declared that it is for individual Member States to

determine their own approach with specific interventions tailored to

the health system concerned.
 

40.

As far as concerns the concept of health care itself, its legal

regulation and administration in the health care sector, Doc. JUDr. Petr

Průcha, CSc., stated in his publication Public Administration and

Regional Self-Government (Advanced School of Applied Law, s. r. o.,

Prague, 2004):  „ . . . [I]n and of itself, health care is a concept

encompassing a system of health care services, or care for health,

together with the system of medical facilities and other medical

organizations arranged into a system of medical facilities which provide

this care.  The performance of public administration in the health care

sector is focused on the effectuation of measures directed at the care

of health, including the protection of, and assistance for, „public

health“.  Both the content and the legal regulation of the performance

of public administration has, in the past decade, undergone a number of

changes corresponding to the changes that have, up until now, been made

not only in public administration as such, but also in the field of

health care itself.  In instituting a system that both makes possible

and ensures the provision of health care, the conditions have been

established for the genuine effectuation of the constitutionally

guaranteed right to life and the right to the protection of health. 

This is manifested in the administrative organization within the sector

of health care, in part by the fact that the public administration of

health care is differentiated vertically (or rather by levels), and

further by the fact that both the state administrative bodies and

autonomous subjects play a role in it.  The Ministry of Health is the

central body of state administration in the health care sector.  Within

its competence falls the central exercise of state administration for

health care, the protection of public health, medical science research

activities, medical facilities in its direct administrative competence,

the search for, protection and exploitation of natural curative

resources, natural therapeutic spas and sources of natural mineral

water, medications and medical technological devices for the prevention,

diagnosis, and treatment of people, health insurance and health care

information system.  In performing activities within its competence, the

Ministry acts in coordination with other central state administrative

bodies, while the Ministry of Defense and the Ministry of Interior have a

special status in this sector.  The regions and municipalities are

entitled to perform public administration at the territorial level.  The

existing legal framework differentiates, in such cases, between the

performance of state administration and of self-government.  In certain

matters, state administration is performed by regional offices and

municipal offices with expanded competence; on their own level, the

regions and municipalities then perform self-government to the

appropriate extent.  In addition thereto, regional hygienic stations are

entitled, at the territorial level, to perform state administration in

matters of the protection of public health.  Also playing a role in the

administration of health care are the „professional autonomous“

subjects, which consists of the Czech Medical Chamber, the Czech Dental

Chamber, and the Czech Pharmaceutical Chamber.  A special form of the

care of health is the “protection of public health”.  Public health is

understood to mean the condition of health of the inhabitants, and

groups thereof.  The protection and support of public health is then the

aggregate of actions and measures taken to create and protect healthy

living and working conditions and to prevent the spread of infectious

diseases and epidemics, job-related illnesses, as well as other

significant breakdowns in health and the supervision of its monitoring.”
 

41.

The statutory framework for the protection of health and health care,

which is linked to the constitutional framework, is concentrated

especially in Act No. 20/1966 Coll., on Human Health Care, as

subsequently amended (hereinafter „Act No. 20/1966 Coll.“), Art. III §

11 para. 1 of which lays down that medical facilities of the State,

municipalities, and natural and legal persons shall provide health care

in conformity with knowledge currently available from medical science. 

As follows from §§ 33 and 39 para. 1 of this Act, apart from the

Ministry of Health, medical facilities are founded also by regions,

within their independent competence, municipalities, and natural and

legal persons.  Authorization to operate non-state medical facilities

arises by a registration decision of the regional office competent in

accordance with the place where the non-state facility operates, in the

sense of § 8 of Act No. 160/1992 Coll., on Health Care in the Non-State

Medical Facilities, as subsequently amended.  Act No. 48/1997 Coll. then

imposes upon health care insurance companies the obligation to ensure

the delivery of health care to the persons they insure.  It carries out

this obligation through the medical facilities with which it has entered

into a contract on the delivery and reimbursement of health care. 

These medical facilities form a network of contractual medical

facilities of the health care insurance company.  The system of bodies

concerned with the protection of public health, and the rights and

duties of natural and legal persons in the area of the protection and

support of public health, are regulated by Act No. 258/2000 Coll., on

the Public Health and on Changes to certain related Acts, as

subsequently amended (hereinafter „Act No. 258/2000 Coll.“).  In § 2

para. 2 of the cited Act, public health is defined as the state of

health of the population and its groups; state administrative bodies

concerned with the protection of public health, as well as their tasks,

are defined in § 78 and foll. of this Act.
 

42.

In terms of the historical development, the governing rules during the

period of central management of health care were found in §§ 33 and 42

of Act No. 20/1966 on the System of Medical Facilities, and in

Regulation No. 43/1966 Coll., on the System of Medical Facilities.  That

Regulation was repealed by Regulation No. 121/1974 Coll., on the System

of Medical Facilities.  This Regulation was also subsequently repealed

by Regulation No. 242/1991 Coll., on the System of Medical Facilities

Founded by District Offices and Municipalities, which is still in

effect.  At the same time the Ministry of Health issued Regulation No.

394/1991 Coll., on the Status, Organization, and Activity of Faculty

Hospitals and further Hospitals, selected Expert Therapeutic

Institutions, and Regional Hygienic Stations within the Managerial

Competence of the Ministry of Health of the Czech Republic, which is

still in effect.  In connection with the change of social-economic

conditions after 1989, health care insurance was regulated by means of

Act No. 550/1991 Coll., on the General Health Care Insurance, then by

Act No. 48/1997 Coll. and by Act 258/2000 Coll.  As was already stated

above, within the framework of the reform of public administration, the

State transferred, by Acts Nos. 157/2000 Coll. and 290/2002 Coll., the

title to certain of its medical facilities, which were state

contributory organizations, to the regions and the municipalities, as

their contributory organizations.  As follows from the general part of

the Explanatory Report to Act No. 290/2002 Coll. (in www.psp.cz, print

1151/0), this was the transfer of title to a part of the State’s

property and the transformation of existing state organizations and

organizational units of the State operating in the field of health care,

among others.  It was expected that citizens‘ needs in the fields which

the transfer of property concerns were to be satisfied and ensured

primarily by the territorial self-governing units.  The regions were

also meant to assess the necessity of providing services, both as

concerns the number and their geographical reach.  In view of the fact

that it was not possible to exclude from the adopted version of the Act

changes in the number of medical facilities (especially on grounds of

the possible organizational changes consisting, for ex., in the merger,

division, or dissolution of certain organizational units, or the

dissolution of certain contributory organizations), they were not

enumerated directly in the Act.
 

43.

As follows from the above-designated provisions of § 33 of Act No.

20/1966 Coll., the regions and municipalities shall, within their

independent competence, found and direct medical facilities.  The

provision of health care thus falls within the independent competence of

territorial self-governing units, into which the State may intervene,

pursuant to Art. 101 para. 4 of the Constitution, only if such is

required to protect the law and only in the manner laid down by statute.
 

44.

Act No. 245/2006 Coll. introduces into the legal order of the Czech

Republic a new type of legal person and modifies the conditions for

health care delivery in the Czech Republic.  Its proclaimed objective is

the creation of an effective legal environment for the existence and

operation of hospitals in the public domain and for the establishment of

a basic network of these hospitals, by means of which the State will be

capable of ensuring the right to the protection of health and to equal

access to free health care to each citizen in the case of need on the

basis of public insurance, such as is envisaged in Art. 31 of the

Charter.
 

45. Sec 1 Act No.

245/2006 Coll. defines the term, „public medical facility“, and either

the State, a region or municipality, or some other legal or natural

person can be the founder of such a facility (§ 2 para. 1, 2 and 3). 

The coming into being of a public medical facility precedes its founding

(§ 3 para. 1), and the Act regulates that procedure in detail.  In

addition to that, the group of legal persons (medical facilities)

exhaustively enumerated in the Annex to the Act shall become public

medical facilities upon the expiry of the 180 day period running from

the day the Act enters into force (§ 40 para. 1).  On the day a public

medical facility comes into being in accordance with the cited

provisions of § 40 para. 1, all rights and obligations, including the

rights and obligations from employment law relations of the legal person

listed in the Annex to the Act, from which the public medical facility

originated, shall pass to the public medical facility (§ 40 para. 3).
 

46.

Sec. 34 para. 2 establishes a network of public medical facilities. 

This network must be organized in such a way as to ensure that the

territories for which each particular facility is responsible are

sensibly interconnected also that accessibility of care is ensured; in

addition, the Act imposes on the regions (§ 34 para. 2, the second

sentence) the obligation to ensure that in each district within their

respective territories is located at least one public medical

facilities.  According to the Act, the network of public medical

facilities is composed in part of public medical facilities which came

into being pursuant to § 34 para. 3, lit. a) and § 40 para. 1 (that is,

medical facilities exhaustively enumerated in the Annex to the Act) and

in part of those public medical facilities which will be founded in

accordance with this Act; further, the Ministry of Health will decide on

the inclusion into the network of public medical facilities [§ 34 para.

3, lit. b) and para. 4].  Then § 34 para. 6 imposes upon the regions

the obligation to found public medical facilities in the case that the

network does not satisfy the requirements laid down in § 34 para. 2

(linkage and accessibility) and that some other founder does not do so.
 

47.

The obligation to provide health care is governed by § 33 para. 1 of

Act No. 245/2006 Coll., according to which, for each public medical

facility included in the network of medical facilities, the Ministry of

Health shall, following discussions with the region, the health

insurance companies and with the relevant Councils, set by decision, for

each particular type of health care, the extent of the obligation to

provide health care and to define the territory for which a particular

facility is responsible.  The Administrative Procedure Code does not

apply to proceedings under § 33 para. 1 (§ 33 para. 4).
 

48.

As follows from the foregoing, Act No. 245/2006 Coll. represents a

basic intrusion into the competence of territorial self-governing units

entrusted to them by §§ 33 and 39 of Act No. 20/1966 Coll., in view of

the fact that, independently of the wish of these territorial units it

changes the legal form of medical facilities and further by making the

operation of these facilities (the founders of which are regions or

municipalities) subject to the administrative and supervisory authority

of the Ministry of Health, which is a sector of the executive power.  By

ceding to the Minister of Health a decision-making role in this field,

the new legislative scheme, introduced by Act No. 245/2006 Coll.,

minimalizes the scope of the exercise of territorial autonomy in the

field of health care, as is envisaged by acts. nos. 20/1966 Coll.,

128/2000 Coll., 129/2000 Coll., and 131/2000 Coll.
 

49.

The Constitutional Court has repeatedly declared that it considers

local self-government as an irreplaceable component of the advancement

of democracy.  It has concerned itself, in a number of its decisions,

with the issue of the independent competence of territorial

self-governing units and the protection of the property rights of

territorial self-governing units.  Since it has repeatedly faced this

issue, then it should make, at least in outline, a recapitulation the

preceding decisions.
 

50. In

its 9 July 2003 Judgment, No. Pl. US 5/03 (published in the Collection

of Laws as No. 211/2003 Coll.), in connection with the petition of a

group of Deputies of the Assembly of Deputies of the Parliament of the

Czech Republic proposing the annulment of § 1 para. 2, lit. b), § 2

para. 2, the second sentence, § 3, § 4 para. 2, lit. b), § 5 para. 2,

the second sentence, and § 6 Act No. 290/2002 Coll., the Constitutional

Court stated:  “[L]ocal self-government is a manifestation of the right

and capacity of local bodies to regulate and administer a portion of

public affairs, within the limits of the law, within the framework of

their responsibility, and in the interests of the local population. 

According to the starting thesis, on which this conception of

self-government is built, free municipalities constitute the foundation

of a free State, then, in terms of regional significance, at a higher

level of the territorial hierarchy a self-governing society of citizens,

which, under the Constitution, is a region.  It also declared that

territorial self-governing units representing the territorial society of

citizens must thus have - through autonomous decision-making by their

representative bodies - the ability to freely choose how they will

manage the financial resources made available to them to carry out the

tasks of self-government. It is this management of one’s own property

independently, on one’s own account and own responsibility which is an

attribute of self-government.  The group of Deputies substantiated their

petition by the argument that the contested provisions, without giving

the affected regions and municipalities the opportunity appropriately to

express their agreement or disagreement, unilaterally determine that

selected property items, rights and obligations previously belonging to

the State shall pass to these self-governing units, and at the same time

determine that the defined state organizational components and

contributory organizations shall become administered departments or

funded organizations of the relevant self-governing units.  The

petitioners in particular charge that the Act does not address such

fundamental issues as the payment of state obligations arising until 31

December 2002, which passed to the regions or municipalities as of 1

January 2003. According to the group of Deputies’ line of argument, the

Act thus impermissibly burdens the financial position of territorial

self-governing units.“  The Constitutional Court also declared “ . . .

that the justification for the step, whereby the state, as part of the

reform of public administration, transferred certain property to

territorial self-governing units, cannot be called into question, as the

reasons for it come from the historically-validated conviction on the

basis of which it is precisely those who are affected by matters tied to

property, and whom the property directly serves, are capable, and in

the nature of the matter also willing and motivated, to manage it with

due care, very often better than the central state power, and in a much

more efficacious, full-value manner.  Nor is the decentralization of

tasks, or the transfer of property related thereto, something

constitutionally unacceptable. However, the tying of this step to the

consequent transfer or further continuation of obligations connected to

this property assumes a further solution, in connection with the system

of taxes, subsidies and similar payments. The State should not – without

anything further – rid itself of liability for debts which arose during

the period when it managed the transferred property and which are a

result of its previous loss-making exercise of property rights, perhaps

even the failure to observe legal enactments.  It certainly should not

do so in relation to entities through whose intermediation it is also to

fulfill its responsibilities consisting of ensuring the fundamental

rights arising from Art. 31 of the Charter, the observance of which the

State itself guarantees.  Such conduct by the sovereign power raises

questions about abuse of state power to the detriment of territorial

self-governing units.  However, the Constitutional Court‘s intervention

consisting of annulling the contested provisions would not by itself

eliminate this undesirable situation, as the Constitutional Court had to

take into consideration that the contested Act is a transformational

act of a one-off nature and the legal consequences connected with the

reviewed statutory provisions and anticipated by this Act arose ex lege

as of 1 January 2003, thus these norms fully exhausted their capacity to

create legal consequences in the future. A Constitutional Court

judgment granting the petition, having effects ex nunc, would thus no

longer be capable to change anything about the existing situation. For

that reason, the Constitutional Court had no other choice but to deny

that part of the petition.”  On the other hand, however, in the cited

judgment the Constitutional Court annulled the provisions of §§ 3 and 6

of Act No. 290/2002 Coll., which had laid down a limitation on the use

of the property items, title to which the regions and municipalities had

acquired, for a period of ten years from the day of their acquisition,

restricting their use solely to the specifically designated purposes for

which they had been employed on the day of the conveyance, as it found

that, in this regard, the provisions had markedly exceeded the bounds

of, and criteria justifying, permissible interference with property

rights.  The ten-year period did not seem appropriate in the given

contexts.  The Constitutional Court concluded “. . . that the limitation

of property rights in those provision does not, in relation to all the

components required by the principle of proportionality, satisfy the

conditions for limiting a fundamental right, and therefore it annulled

these provisions due to their conflict with Art. 4 para. 4, in

conjunction with Art. 11 para. 1, of the Charter.”
 

51.

In its 5 February 2003 Judgment, No. Pl. US 34/02 (published in the

Collection of Laws as No. 53/2003 Coll.), the Constitutional Court

stated: „The Constitution establishes the legal personality of

territorial self-governing units, and envisages that self-governing

units will hold their own property and administer from their own budget

(Art. 101 para. 3). Of course, the Constitution also anticipates that

there will be uniform State regulation of self-government in the form of

a statutory framework. The delimitation of that part of public affairs

which a local or regional association of citizens is capable of managing

is entrusted to the legislature, i.e. the state power (Art. 104), not

left to the Constitutient Assembly, which would define matters of local

significance at the highest level of domestic law.  In its Art. 105, the

Constitution expressly envisages that territorial self-governing units

will share in the exercise of state power on the basis of statutory

authorization.  Naturally such exercise of state power through an

intermediary necessarily entails that self-governing units are subject

to state supervision, the purpose of which is to ensure the proper

exercise of state power.  The constitutional text does not state

unambiguously whether the exercise of state administration can be

imposed upon territorial self-governing units compulsorily, or whether

it is possible to effect such a statutory transfer solely on the basis

of an agreement between the State and the relevant territorial

self-governing unit.  Decision making about the competence of

territorial self-government is always political.“
 

52.

The Constitutional Court makes reference chiefly to its conclusions

stated in the judgments of the Constitutional Court Plenum, Nos. Pl. US

5/03 and Pl. US 34/02, as it sees no grounds for departing from them.
 

53.

Also the European Charter of Local Self-Government, which was adopted

within the framework of the Council of Europe adopted in Strasbourg on

15 October 1985 and was signed on behalf of the Czech Republic on 28 May

1998 (published in the Collection of Laws as No. 181/1999 Coll.) is

premised on the principle that local authorities are one of the main

foundations of any sort of democratic regime. Art. 9 provides that local

authorities shall be entitled, within national economic policy, to

adequate financial resources of their own, of which they may dispose

freely within the framework of their powers.  Local authorities'

financial resources shall be commensurate with the responsibilities

provided for by the constitution and the law.  The financial systems on

which resources available to local authorities are based shall be of a

sufficiently diversified and buoyant nature to enable them to keep pace

as far as practically possible with the real evolution of the cost of

carrying out their tasks.  Local authorities shall be consulted, in an

appropriate manner, on the way in which redistributed resources are to

be allocated to them.
 

54. On

the issue of the constitutionality of the statutory limitation upon the

right of property and the competence of self-governing units to

administer a part of public affairs in relation to the protection of

health, the following propositions can be deduced.
 

55.

The line of argument contained in the petition of the group of Senators

proposing the annulment of the contested provisions of Act No. 245/2006

Coll. contains a measure of the public interest in ensuring care of the

peoples‘ health in relation to the public interest, on the one hand,

and in ensuring the protection of the right to property and the

protection of the independent competence of territorial self-governing

units, on the other hand.  It is premised on the priority of the

protection of the right of territorial self-governing units and on an

emphasis on the independence from the State of territorial

self-governing units.  But the Constitutional Court emphasizes its

consciousness of the fact that the rights to life and to health, such as

they are laid down in Art. 6 para. 1 and Art. 31 of the Charter, are

absolute fundamental rights and values and that it is necessary to weigh

the right to self-government and the right to property precisely in

relation to these absolute values.
 

56.

With this information, it is now possible to assess the changes and

impact, which Act No. 245/2006 Coll. has had, or rather will have, on

health care delivery and the exercise of the independent competence of

territorial self-governing units in the field of health services.
 


The Principle of Proportionality
 

57.

Similarly as is the case for all democratic constitutional courts, also

the Constitutional Court of the Czech Republic applies the principle of

proportionality to resolve, within a norm control proceeding, a

conflict of fundamental rights, or of public goods protected under the

constitutional order.
 

58. In

order to come to a conclusion in the case of a conflict of fundamental

rights, alternatively of public goods, the Constitutional Court follows,

in contrast to the case of a conflict of norms of ordinary

(sub-constitutional) law, the optimization imperative, that is, the

postulate that it is necessary to minimalize limitations upon the

fundamental rights and basic freedoms, alternatively upon public goods. 

This imperative contains a maxim, according to which, in the case it is

concluded that it is justified to give precedence to one of two

conflicting fundamental rights, or public goods, it is a necessary

condition of a final decision also to make use of all possible

minimalization of intrusion into them.  Normatively, the optimalization

imperative can be deduced from Art. 4 para. 4 of the Charter, according

to which, in applying the provisions on the limits of fundamental rights

and basic freedoms, those rights and freedoms must be preserved, hence

it also applies analogously in the case of their limitation in

consequence of mutual conflict between them (cf. Judgment of the

Constitutional Court Plenum, No. Pl. US 41/02, published in the

Collection of Laws as No. 98/2004 Coll.).
 

59.

In its Judgment of 20 June 2006, No. Pl. US 38/04 (published in the

Collection of Laws as No. 409/2006 Coll.), the Constitutional Court,

similarly as in its Judgment of 13 August 2002, No. Pl. US 3/02

(published in the Collection of Laws as No. 405/2002 Coll.), stated that

in cases of the conflict of fundamental rights or basic freedoms with

public interests, or other fundamental rights or basic freedoms: “. . .

it is necessary to evaluate the purpose (aim) of such interference in

relation to the means used, and the measure for this evaluation is the

principle of proportionality (in the wider sense), which can also be

called a ban on excessive interference with rights and freedoms. This

general principle contains three principles, or criteria, for evaluating

the admissibility of interference. The first of these is the principle

of capability of meeting the purpose (or suitability), under which the

relevant measure must be capable of achieving the intended aim, which is

the protection of another fundamental right or public good. Next is the

principle of necessity, under which it is permitted to use, out of

several possible ones, only the means which most preserve the affected

fundamental rights and freedoms. The third principle is the principle of

proportionality (in the narrower sense) under which detriment in a

fundamental right may not be disproportionate in relation to the

intended aim, i.e. measures restricting fundamental human rights and

freedoms may not, in the event of conflict between a fundamental right

or freedom with the public interest, by their negative consequences

exceed the positive elements represented by the public interest in these

measures.“
 

60. To carry out

the proportionality test necessitates the search for and identification

of the objective of the provisions limiting a fundamental right.  As

was stated above, in the Explanatory Report to Act No. 245/2006 the

objective of this Act is the creation of the optimal legal environment

for the existence and operation of hospitals in the public domain and

for the establishment of a basic network of these hospitals.  The

Constitutional Court is aware of the fact that the establishment of a

network of public medical facilities is a component of the general

complex of issues relating to health care, which are premised on certain

constitutional principles and whose overall legislative scheme should

respond to the solutions prevalent in mature democratic states as well

as internationally agreed or recommended positions (Art. 1 para. 2 of

the Constitution).  The Constitutional Court has found that the

contested provisions are capable of attaining the intended objective,

that is, to ensure the delivery of public services in the field of

health care, and this objective was found to be legitimate.
 

61.

A further criterion which must be reviewed is the necessity of the

selected means in terms of its less intrusive nature in relation to

fundamental rights – that is, in relation to the right of self-governing

units to independently manage their property and to the right to the

protection of property.  The Constitutional Court considers, as one of

its main reasons for why the issue of self-government is governed by

constitutional law, the need to protect self-government from

unauthorized intervention by the State (see Art. 100 and Art. 101 of the

Constitution).  In the given case, by acts nos. 157/2000 Coll. and

290/2002 Coll., the State conveyed a portion of its property to the

territorial self-governing units and at the same time entrusted to them

the exercise of a part of state power in the area of ensuring health

care.  However, the legislature in no way explained the necessity of its

interference, effected by Act No. 245/2006 Coll., with the property of

territorial self-governing units in relation to the medical facilities. 

Art. 101 para. 4 of the Constitution permits the State to intervene in

the affairs of territorial self-governing units only if such is required

for the protection of law and only in the manner provided for by

statute.  The necessity of such intervention does not emerge with

desirable precision from the Explanatory Report to Act No. 245/2006

Coll.  While the assertion made in the Explanatory Report, namely, that

during the time which has elapsed since the adoption of Act No. 290/2002

Coll., due to various reasons there has been a transformation of

hospitals - contributory organizations of the regions (municipalities)

into commercial companies, is an observation on the current state of

affairs; on the other hand, however, that does not explain the State’s

lack of an overall conceptual approach to this problem, whereby it

initially transferred title to certain medical facilities to the

territorial self-governing units and then included certain of them into a

network of public medical facilities, which move it substantiates in

view of its obligation to fulfill its responsibility for the genuine

securing of constitutional rights.  It is not possible to accept the

proposition put forward in the General Part of the Explanatory Report to

Act No. 245/2006 Coll., that in the given case the territorial

self-governing units are not capable of taking care of the protection of

the public interest and that it is the State’s responsibility to adopt

the appropriate measures, including legislative measures, to secure the

implicated constitutional rights, as these considerations are in no way

substantiated, not even in the Explanatory Report.  The Constitutional

Court cannot overlook the fact that, when considering the necessity of

the new legislative scheme, the legislature disregarded, for example,

the legal rules for scrutiny of the management of territorial

self-governing units introduced by Act No. 250/2000 Coll., on the Budget

Rules of the Territorial Budgets, as subsequently amended, which is

ensured by Act No. 420/2004 Coll., on the Scrutiny of the Management of

Territorial Self-Governing Units and Voluntary Federations of

Municipalities, as subsequently amended.  By means of the cited acts the

State created an effective instrument for the supervision of the

management of territorial self-governing units, for increasing the

transparency of public finances and for limiting deficits in the

management of those units in conformity with Art. 104 (ex Art. 104c) of

the Treaty Establishing the European Community.  While it is true that

the State is empowered to choose the instrument for securing the rights

arising from Art. 31 of the Charter, still in conjunction with the

trends of the European Union in discussing the European Union’s future

strategies and also in conjunction with the above-cited conclusions of

the Council of the European Union (2006/C 146/01), in the situation

where the Council of the European Union noted that the European

Commission will develop the Community principles for safe, high quality

and efficient health services, the proposed scheme of Act No. 245/2006

Coll. appears to the Constitutional Court Plenum to be more or less

unsystematic, to say the least.
 

62.

It is further necessary to take into account that the forced limitation

of property rights is made possible only on the basis of a statute and

for compensation.  In the given case, the property rights of the regions

are violated, even if by means of a statute, by § 34 para. 2, the

second sentence, and § 34 para. 6 of Act No. 245/2006 Coll.  On the one

hand, the contested provisions impose upon regions an obligation to

ensure that in each district within their territory is located at least 1

public medical facilities and should the municipality not establish it,

nor any other founder do so, then the region shall have the obligation

to establish it.  The obligation is thus placed upon regions to carry

out, at their own expense, those tasks which follows from the

constitutional order of the State (the Charter and international

agreements), without it being able, in any effective manner, to

influence the inclusion of particular medical facilities into the

network.  As follows from the contested provisions, on the other hand,

the State is not obliged in any manner to ensure the financial

arrangements from public funds for the newly founded public health

facilities.  As the Constitutional Court has already stated in its

above-cited Judgment No. Pl. US 5/03:  „It is precisely the management

of their own property independently, on their own account and

responsibility which is the attribute of self-government.  Thus, a

necessary prerequisite for effective performance of the functions of

territorial self-government is the existence of their own, and adequate,

financial or property resources.“
 

63.

In view of what was stated above, the Constitutional Court that in

relation to § 34 para. 2, the second sentence, and § 34 para. 6, which

oblige the regions to ensure, and in the case of need, to found in each

district at least one public medical facility, without the State making

any sort of prior guarantee to ensure the sources of financing toward

that design, the legislature did not comply with the second of the

components of the proportionality test, the principle of necessity. 

Under the current circumstances, the Constitutional Court had to work

from the assumption, that the State is not intending to compensate in

any way for the limitation upon the right of self-government, nor the

right to property, upon which the possibility for the actual exercise of

self-government is conditioned (Art. 11 para. 4 of the Charter), a fact

which inevitably leads to the conclusion that the objective pursued by

the Act, in the given case being the protection of a public good

(health), can be achieved by alternative means.  Hence, the cited

provisions intrude upon the autonomy of will of the territorial

self-governing units beyond the limits set in of Art. 101 para. 4 of the

Constitution.
 

64. Also in

relation to § 34 para. 3, lit. a), § 40 and the Annex to Act No.

245/2006 Coll., on the basis of the wording of which specific medical

facilities, listed in the Annex to Act No. 245/2006 Coll., which shall

become, upon the expiry of the 180 day period running from the day this

Act enters into force, public medical facilities and form a network of

public medical facilities, the Constitutional Court has found that the

legislature has not satisfied the criterion of necessity.  If the second

step in applying the principle of proportionality is to assess ordinary

(sub-constitutional) law in terms of its necessity, which involves an

analysis of the range of possible normative means in relation to the

intended aim and their subsidiarity in terms of the limitation upon

values protected by the Constitution (fundamental rights or public

goods), the Constitutional Court is of the view that the aim pursued can

be achieved – from among several possible means – by a less intrusive

means.  A violation of the principle of proportionality established in

this way must be proclaimed to be a manifestation of arbitrariness. 

After all, it cannot be overlooked that the purpose of the protection

and support of public health is not for public health facilities

included into the relevant network to draw upon the financial resources

from public health insurance without unambiguous criteria being laid

down in advance, rather it is the effectuation of the constitutionally

guaranteed rights to life and to the protection of health.
 

65.

As follows from what has been stated, the solution chosen by the

legislature does not satisfy the criteria of necessity.  Accordingly it

was not necessary to continue in the test of proportionality and

scrutinize whether the contested provisions would satisfy the principle

of proportionality in the narrow sense.

 


The Principle of the Protection of Fundamental Rights
a) The Principle of Legitimate Expectations
 

66.

In its 8 March 2006 Judgment, No Pl. US 50/04 (published in the

Collection of Laws as No. 154/2006 Coll.), the Constitutional Court

stated that „it has adjudicated on the principle of legitimate

expectation in conformity with the case-law of the European Court of

Human Rights, from which has clearly emerged the conception of the

protection of legitimate expectations as a property claim, which has

already been individualized by an individual legal act, or is

individualizable directly on the basis of legal rules“ (cf. the judgment

in case No. Pl. US 2/02, published as No. 278/2004 Coll.).  On the

basis of these principles, the Constitutional Court has established that

the principle of the protection of legitimate expectations was violated

by § 34 para. 3, lit. a), § 40, and the Annex to Act No. 245/2006

Coll.  The heart of the matter is that individual medical facilities, be

they of whatever legal form, have the right, after satisfying certain

conditions imposed upon them by legal norms, to draw upon financial

resources from the public health insurance.  Their individualized claims

have been violated by the cited provisions of Act No. 245/2006 Coll.,

as the medical facilities that are not included in the Annex to Act No.

245/2006 Coll. have unilaterally been discriminated against in

comparison to those subjects listed in the Annex, as the legislature has

not defined its selection criteria.  The protection of legitimate

expectations moreover constitutes an integral element of the rule of

law.
 


b) The Principle of Equality in Rights, Legal Certainty and the General Character of Statutes
 

67.

The Annex to Act No. 245/2006 Coll. contains a list of the 146 medical

facilities which, in accordance with § 40 para. 1 of Act No. 245/2006

Coll. will become, upon the expiry of the 180 day period running from

the day this Act enters into force, public medical facilities.  In the

view of the Constitutional Court Plenum, the State may, in the exercise

of its power, expand the non-profit sector by creating new legal

subjects, so-called non-profit institutional medical facilities, just as

it had done in the case of the generally beneficial society by Act No.

248/1995 Coll., on General Beneficial Societies and on Amendments to and

Supplementation of Certain Acts, as subsequently amended, which by

coincidence was originally submitted to the Assembly of Deputies of the

Parliament of the Czech Republic the Government as an act on „Non-Profit

Legal Persons“ and it was only in the course of the legislative process

that the words, „on Non-Profit Legal Persons“, were replaced by the

words, „on General Beneficial Societies“.  The cited act regulated the

status and legal relations of general beneficial societies, for which

there is no basic definition but which are characterized by certain

features such as formal establishment in accordance with a specific

statute, non-state character (separation from the State apparatus),

self-government (carrying out supervision by its own actions), the use

of earnings for the provision of generally beneficial services and

services in the public welfare.  In contrast thereto, Act No. 245/2006

Coll. has introduced into the Czech legal order the institute of the

public non-profit organization, the mission of which is to effectuate

the public interest in the area of health care delivery.  On the one

hand, then, in spite of the fact that § 3 and foll. regulate the

founding and coming into existence of public medical facilities such

that they can be founded in accordance with Act No. 245/2006 Coll., on

the other hand, § 40 para. 1 provides that the legal persons listed in

the Annex to that Act by means of an enumeration shall become public

medical facilities, upon the expiry of a specifically prescribed

period.  The enumeration of these medical facilities making up the Annex

to Act No. 245/2006 Coll. lacks the characteristic, typical of a

statute, of generality and introduces an unequal status for existing

medical facilities.
 

68. The

Constitutional Court had already previously decided that among the

foundational principles of the material law-based state belongs the

maxim that legal rules be of a general character (the requirement of the

generality of statutes).  The general character of the content is an

ideal, typical, and essential characteristic of a statute, as distinct

from governmental and administrative acts, or court judgments.  The

purpose of the division of state power into legislative, executive and

judicial powers is to entrust the state‘s general and primary power of

regulation to legislation, its derived general power of regulation, as

well as decision-making in individual cases, to administration, and

exclusively decision-making of individual cases to the judiciary (see

the 18 April 2001 Judgment of the Constitutional Court Plenum, No. Pl.

US 55/2000, published in the Collection of Laws as No. 241/2001 Coll.).
 

69.

If the group of medical facilities which are to become public medical

facilities are exhaustively enumerated in the Annex to Act No. 245/2006

Coll., than one cannot, either from the Explanatory Report or from the

course of the legislative process, deduce any, much less an objective,

criterion of their selection.  In spite of this, the health insurance

companies are obliged to enter into appropriate contracts with the

medical facilities in the group defined in this way.  That the medical

facilities listed in the enumeration were randomly selected is evidenced

by the fact that they are included in it repeatedly with the incorrect

legal form stated, with the incorrect name or identification number, as

was ascertained even during the course of the legislative process.  The

Constitutional Court has already previously stated that one of the basic

prerequisites for the functioning of a law-based state is the existence

of internal harmony within its legal order.  It is therefore also

necessary that particular legal enactments be comprehensible and that

foreseeable results follow from them.  In the case of the contested

Annex to Act No. 245/2006 Coll., however, it is evident that these

requirements have not been satisfied, not even in relation to those

medical facilities whose founder is the State.  Accordingly, the

Constitutional Court has come to the conclusion that contested provision

is in conflict with Art. 1 of the Constitution, and its

unconstitutionality cannot be overcome even by interpretation.
 

70.

The Constitutional Court is aware of the fact that certain legislative

arrangements which favor one group or class of persons over another

cannot, in and of itself, be designated as a violation of the principle

of equality.  The legislature has a certain room for discretion whether

it will enact such preferential treatment.  At the same time it must see

to it that the approach favoring one group is based on objective and

reasonable grounds (the legitimate objective of the legislature) and

that there exist a relation of proportionality between this objective

and the means employed to attain it (legal advantages).
 

71.

The constitutional principle of equality ranks among the basic human

rights, which form the value order of modern democratic societies.  It

can generally be said that „inequality“, that is, a one legal regime for

parties to already existing legal relations, on the one hand, and

another for parties to legal relations newly being formed, on the other,

always comes about whenever a legislative scheme is amended.  That

results in a violation, however, only if various subjects, who find

themselves in the same or comparable situations, are treated in a

dissimilar manner without there existing objective and rational grounds

for applying the divergent approach.  The assessment of this conflict

must be governed by the principle of proportionality, which was not

satisfied in the given case.
 

72.

In no case does the Constitutional Court call into doubt the right of

the State, in view of its constitutional responsibility to secure the

rights flowing from Art. 31 of the Charter, to select the instruments

for securing these rights, as well as the instruments for the

supervision and regulation of medical facilities providing health care,

since it thereby pursues a legitimate aim.  This right cannot be

conceived of in absolute terms, however, that is, in the sense that, in

the interest of securing it, all other rights and constitutionally

protected values, thus even the right to self-government, would be

eliminated entirely.  The legislative scheme contained in Act No.

245/2006 Coll. represents a chosen conception of the health care system

premised on the obligation to ensure the protection of health and the

delivery of health care to citizens.  To the extent this obligation is

met by the health insurance companies by means of medical facilities

with which they have entered into contracts for the provision and

reimbursement of health care in accordance with § 46 of Act No. 48/1997

Coll. and in accordance with para. 2 of the cited provision, then an

obligation is placed upon the health insurance companies, prior to

entering into contracts for the provision and reimbursement of health

care, to hold a selection competition (meanwhile, either a health

insurance company or a medical facility authorized to provide medical

care in the relevant field can propose that a selection competition be

held), then § 34 para. 3, lit. a) of Act No. 245/2006 Coll. circumvents

the above cited provision and also places medical facilities into

unequal positions – those subjects placed into the list as against the

medical facilities not place on the list.  That is, it creates two

classes of medical facilities, from which the medical facilities placed

into the network of public medical facilities on the strength of § 34

para. 3, lit. a) and § 40 of Act No. 245/2006 Coll. are given

preferential treatment in against the group of medical facilities not

listed in the Annex to the Act, without providing clear and concrete

rules for the inclusion of one or another medical facility into the list

in the Annex to Act No. 245/2006 Coll.  For completeness, the

Constitutional Court would add that the State could have set up medical

facilities, in the sense of its guarantee of fundamental rights defined

in Art. 6 para. 1 and Art. 31 of the Charter, already before it had

conveyed its property, to the extent prescribed by Act No. 290/2002

Coll., to the regions and municipalities.
 

73.

In judging the seriousness of the constitutionally protected values of

the territorial self-governing units and even of individual medical

facilities, the contested provisions of Act No. 245/2006 Coll. appear in

terms of content as limitations that are incommensurate, unwarranted,

and, in light of the generally acceptable and shared hierarchy of

values, disproportionate.
 

74.

From the perspective of the principle of proportionality, then, the

contested provisions of Act No. 245/2006 Coll. fail to respect the

requirements of the criterion of necessity, nor do they satisfy the

requirements of the principles of the protection of legitimate

expectations, the equal status of legal subjects, the generality of

statutes, and legal certainty.  Consequently, Art. 11 para. 1 of the

Charter and Arts. 8 and 101 para. 4 of the Constitution have been

infringed.
 

75. According to

Art. 1 of the Constitution, the Czech Republic is a democratic law-based

state.  The Constitutional Court has already previously stated that the

Czech Republic adheres to the principles not only of the formal, but

also and above all of the material law-based state.  The Constitution

accepts and respects the principle of legality as a part of the overall

basic conception of a law-based state; positive law does not, however,

bind it merely to formal legality, rather the interpretation and

application of legal norms are subordinated to their substantive

purpose.  As stated above, one of the basic prerequisites for the

functioning of a law-based state is the existence of internal harmony

within its legal order.  It is therefore also necessary that particular

legal enactments be comprehensible and that foreseeable results follow

from them.
 

76. Based on the

foregoing, the Constitutional Court Plenum has decided to derogate the

statutory provisions at issue in the version as they were listed in the

statement of judgment.  That means that, by its judgment, the

Constitutional Court Plenum has annulled § 34 para. 2, the second

sentence, § 34 para. 3, lit. a), § 34 para. 6, § 40, and the Annex to

Act No. 245/2006 Coll.  In view of the annulment of § 34 para. 2, second

sentence, the Constitutional Court Plenum has decided to annul as well §

34 para. 2, the third sentence, which reads „[t]he second sentence

shall not apply to the Capital City of Prague,“ even though that was not

proposed by the petitioners, since, in consequence of the annulment of §

34 para. 2, the second sentence, this sentence has entirely lost any

purpose (see Judgment of the Constitutional Court Plenum of 31 October

2001, No. Pl. US 15/01, published in the Collection of Laws as No.

424/2001 Coll. ).  The other provisions of Act No. 245/2006 Coll. remain

unaffected by this judgment of the Constitutional Court Plenum, as they

were not contested.
 

77. The

Constitutional Court would at the same time emphasize that the subject

of review by the Constitutional Court Plenum were § 34 para. 2, second

sentence, § 34 para. 3, lit. a), § 34 para. 6, § 40 and the Annex to Act

No. 245/2006 Coll.  That means that the Constitutional Court has not

assessed the constitutionality of other provision of Act No. 245/2006

Coll.  Even though, in its statement of judgment, the Constitutional

Court annulled the mentioned provisions of Act No. 245/2006 Coll., the

process of the founding, coming into existence, and functioning of the

public non-profit institutional medical facilities established by this

Act has been retained, as that was not contested by the petition at

issue.  Accordingly, the Constitutional Court has not put forward any

further specific potential solutions in the area of the protection of

life and health and has left to the executive and legislative powers

their statutory regulation
 

78.

According to § 58 para. 1 of the Act on the Constitutional Court,

judgments in which the Constitutional Court decides, under Article 87

para. 1, lit. a) or b) of the Constitution, on a petition proposing the

annulment of a statute or other legal enactment, are enforceable on the

day they are published in the Collection of Laws, unless the Court

decides otherwise.  The Constitutional Court is of the view that the

petition proposing the annulment of the contested provisions of § 34

para. 2, second sentence, § 34 para. 3, lit. a), § 34 para. 6, § 40 and

the Annex to Act No. 245/2006 Coll. is well-founded and, therefore, has

annulled them on the day this Judgment is announced.  That is to say, it

would be in conflict with the principles of the democratic law-based

state and in conflict with the principles of legal certainty if the

contested provisions of Act No. 245/2006 Coll. were to be applicable in

the period from the Judgment‘s announcement until its publication.
 

79.

As far as concerns the petitioner’s request for the case to be heard as

a matter of priority, the Constitutional Court did not consider it

necessary to pronounce, in a separate ruling issued pursuant to § 39 of

the Act on the Constitutional Court, that the matter is urgent. 

However, even without such a formal ruling, the Constitutional Court

heard the case as a matter of priority on the grounds of legal certainty

both of those medical facilities listed in the Annex to Act No.

245/2006 Coll., and those which are not listed in the Annex to the Act.

Notice: Decisions of the Constitutional Court may not be appealed.

Brno, 27 September 2006
 





Dissenting Opinion

Separate

Opinion of Justice Vojen Güttler, dissenting from the Reasoning of the

Constitutional Court Judgment in the Matter of the Petition submitted by

a Group of Senators of the Senate of the Parliament of the Czech

Republic proposing the Annulment of § 34 para. 2, second sentence, § 34

para. 3, lit. a), § 34 para. 6, § 40 of, and the Annex to, Act No.

245/2006 Coll., on Public Non-Profit Health Facilities and on Amendments

to Certain Acts  

1) Within the framework of the proportionality

test (in particular, points 55, 57 and following of the Judgment‘s

reasoning) the Constitutional Court should have – in the view of this

concurring Justice – more markedly emphasized the need to protect the

fundamental rights to life and health, which it correctly designated as

absolute fundamental rights and values.
 

2)

Accordingly, the Constitutional Court should have, in points 63 and 64 –

in which it speaks of „alternative means“ and of „less intrusive means“

– stated, or at least suggested, which such alternatives come into

consideration, and without regard to the conclusion in point 77 of the

judgment.
 

Examples of such

alternatives might be to impose a duty upon the relevant health care

providers to ensure the basic extent of this care, or to impose an

obligation upon health insurance companies to enter into contracts with

the health care operators in any particular region under the condition

that it will provide certain basic medical capacity and certain basic

health care procedures.  This is due to the fact that one cannot permit

medical facility operators to provide health care only in lucrative

areas and ensure only lucrative health care procedures.
 

Brno, 27 September 2006

 



Dissenting Opinion
of Justice Vladimír Kůrka dissenting from the Reasoning of the Constitutional Court Judgment in Matter No. Pl. US 51/06

I

do not intend, in this separate opinion, to dispute the conclusions as

to the unconstitutionality of the provisions of Act No. 245/2006 Coll.,

on Public Non-Profit Health Facilities and on Amendments to Certain

Acts, which the Constitutional Court annulled in its Judgment, No. Pl.

US 51/06.  Above all, I feel the need to emphasize to what – on to that

alone – the Constitutional Court spoke and what are the consequences

that follow therefrom.
 

The

outer limits of the review were set by the petition itself, which was

concentrated on certain provisions of the contested Act, not on the Act

as such.  It was therefore should have been thoroughly expressed that

the Court did not leave out of consideration (and assessment) the

constitutionality of the organization of health care delivery by „public

non-profit institutional medical facilities“, which the Act founded, or

the legislative scheme for their coming into existence and their legal

status, much less the statutorily selected manner of incorporating their

financing into the regime of public health insurance.
 

The

Constitutional Court Plenum’s tolerance for the solution which the

legislature adopted in this instance cannot, therefore, be understood as

a consequence of its (positive) assessment, rather, in contrast, as a

consequence of the fact that the Constitutional Court did not, and could

not, adjudge, these issues.
 

The

focal point of attention in the review process was the adjudication of

the constitutional law aspects of the manner in which and the

circumstances under which into the network of public medical facilities

were included certain existing medical facilities whose property and

designation as a public-law entity were linked (on the basis of acts

nos. 157/2000 Coll. and 290/2002 Coll.) with the territorial

self-governing units, or title to whose property had previously passed

to the regions or municipalities and which should have become „public

medical facilities“ ex lege (see § 34 para. 3, lit. a), § 40 para. 1,

and the Annex to the Act).  It was manifestly correct to conclude that

it was unconstitutional to proceed in this manner and under these

circumstances; however, as to that conclusion specifically, it was

appropriate to attach the test of proportionality, and the result

reached by the Judgment that the condition of less intrusive means, or

of proportionality, had not been satisfied, would have been more

persuasive; it cannot be ruled out that, in terms of this test, the

statutory solution – that is, in consequence of the intensity of the

interference with the rights there compared – was entirely unacceptable.
 

The

scrutinized conflict, of constitutionally guaranteed rights of property

and the rights of territorial self-governing units (Art. 100 para. 1,

Art. 101 para. 4 of the Constitution) with the right to the protection

of health (Art. 31 of the Charter of Fundamental Rights and Basic

Freedoms ), did not then have to appear accentuated to such a degree;

otherwise, the circumstance that the protection of this right is in fact

accomplished by Act No. 245/2006 Coll., should have, for the purposes

of constitutional review, remained only on the plain of an assumption,

of which it is known that there is an ongoing expert and political

controversy as to its correctness.
 

Brno, 17 October 2006




Dissenting Opinion
of Justice Pavel Rychetský dissenting from the reasoning of Judgment No. Pl. US 51/06

The

separate opinion, which I have adopted pursuant to § 14 of Act No.

182/1993 Coll., on the Constitutional Court, as subsequently amended, is

directed solely against certain passages contained in the judgment’s

reasoning.
 

First and

foremost I consider it as necessary to emphasize that the very

conception of Act No. 245/2006 Coll., on Public Non-Profit Institutional

Medical Facilities corresponds to the requirements laid down in the

modern democratic, law-based state, on the task of the State in ensuring

health care, and in my view it is one of the possible and

constitutionally legitimate ways in which to effectuate the requirements

following from Art. 6 and Art. 31 of the Charter of Fundamental Rights

and Basic Freedoms.  I consider the right to life, in conjunction with

the right to health care as one of the fundamental rights which, in

weighing it against other rights and freedoms protected by the

constitutional order, must be accorded a distinct priority.  I concurred

in the majority judgment of the Constitutional Court Plenum, which

derogated the contested provision of the statute, in view of the fact

that the contested statutory arrangement was adopted in delay, when

prior thereto the State had, by means of a statute, transferred what

until then been state inpatient medical facilities into non-state

subjects and even permitted them to be transformed into various sorts of

commercial companies and then only afterwards, by means of a statute,

attempted make them subject once again to a regime which had not, until

that time, existed in the legal order.  I consider it to be an undoubted

defect in the process of the transformation from a legal system

conforming to an authoritarian regime with central management of all

spheres of human existence to a system of a democratic law-based state,

the fact that Art. 11 para. 2 of the Charter has not been implemented by

the statutory definition of the State’s reservation of property

interests or competencies, not even in relation to legally defined basic

institutions, such as the „public corporation“ , „public goods“, etc.  I

do not concur with the line or argument in this judgment’s reasoning to

the extent that the annulled provisions are considered to be in

conflict with Articles 8 and 101 of the Constitution, as regions (like

other territorial self-governing units) cannot be evaluated as if they

were private-law subjects.  Territorial self-governing units are defined

in the Constitution as public-law corporations and, on the contrary,

the Constitution permits the State to intervene into their competencies,

provided it is accomplished by means of a statute and for the

protection of interests protected by statute or even, as in this case,

by the constitutional order.  In my view, then, the State is empowered

to impose obligations, by statute, even upon public-law corporations –

even obligations directed towards the performance of tasks in the area

of the health care of citizens, naturally under the presupposition,

however, that it at the same time procures funds from the state budget

or from other public sources (for ex., health insurance) to cover these

costs.  In the given case, however, the annulled provisions were in

conflict with Art. 11 of the Charter, which constitutes an absolute

prohibition of expropriation or other limitations upon property rights

without compensation.  The contested statutory provisions were thus not

constitutionally conforming in relation to the medical facilities which

were, at the Act came into force, in the form of commercial companies,

that is, private-law subjects.  If the State had defined the basic

network of non-profit medical facilities as being formed exclusively

from facilities owned by the State, provided them with advantages

consisting in contractual obligations on the part of health insurance

companies, and at the same time laid down clear criteria for the entry

of additional medical facilities into this network, then it would have

chosen a constitutionally conforming, even if not the sole, route

towards carrying out its obligations arising Articles 6 and 31 of the

Charter.  In the given case, however, the State opted for the opposite

route and „forcibly“ included into the network even the facilities of

other owners, moreover without their consent.
 

Brno, 27 September 2006




Dissenting Opinion
of Justice of the Constitutional Court Jan Musil

I

do not concur either in the statement of judgment or the reasoning of

Judgment No. Pl. US 51/06, in which the Court granted the petition of

the group of Senators proposing the annulment of the contested

provisions of Act No. 245/2006 Coll., on Public Non-Profit Institutional

Medical Facilities and on Amendments to Certain Acts (hereinafter „Act

No. 245/2006 Coll.“).  In accordance with § 14 of Act No. 182/1993

Coll., on the Constitutional Court, as subsequently amended, I have

adopted a separate opinion, the reasons for which are as follows.
 

1.

The Constitutional Court rests its decision on the test of

proportionality, by which it verified whether the legislature has

correctly assessed the weight of various, partly conflicting basic

rights and constitutionally protected public goods, and whether in

limiting them by statute the legislature has made correct and

constitutionally-conforming inferences, as to which of the weighed

values should be accorded precedence.  These interests which are in

conflict with each other are, on the one hand, everyone’s

constitutionally guaranteed right to life (Art. 6 para. 1 of the

Charter), the right to the protection of health and the right of

citizens to free medical care on the basis of public insurance (Art. 31

of the Charter), on the other hand then, the right to own property (Art.

11 of the Charter), and the right to self-government (Art. 8 of the

Charter).
In its judgment, the Constitutional Court pronounced the

view that, by adopting the contested provisions of the Act, the

legislature resolved this conflict unconstitutionally, because it

allegedly violated the principle of proportionality (points 57 to 65 of

the judgment’s reasoning).  The legislature is upbraided because the

solution it selected does not satisfy the criterion of necessity.  The

Constitutional Court, therefore, did not even consider it necessary to

continue with the test of proportionality and to scrutinize „whether the

contested provisions respected the principle of proportionality in the

narrow sense“ (point 65).
 

I do not consider this line of reasoning to be convincing.
 

2.

I regret that, in its judgment, the Constitutional Court did not

pronounce with sufficient urgency the proposition that the protection of

life and health hold no less than an existential significance for

humans and that in the contemporary European civilization, to which the

Czech Republic has declared its allegiance, it has taken on high

stature.  Such a consideration holds, in my view, basic importance for

the weighing of other balanced values.
 

I

believe that the limitation on property rights and on the right to

self-government, which the legislature introduced into the contested

provisions of the Act in order to resolve the conflict of those rights

and the right to the protection of life and health, are proportionate in

their intensity and preserve the essence and significance of these

rights (Art. 4 para. 4 of the Charter).

3.

The judgment substantiates its conclusion that the criterion of

necessity was not observed in part by means of very vague arguments to

the effect that „[t]he necessity of such intervention does not emerge

with desirable precision from the Explanatory Report to Act No. 245/2006

Coll.“ or that „the proposed scheme of Act No. 245/2006 Coll. appears

to be more or less unsystematic to say the least“ (point 61 of the

judgment’s reasoning).
 

I do

not consider these reproaches, directed at the legislature, to be

convincing.  I think that the necessity of the proposed scheme follows

sufficiently clearly both from the Explanatory Report and from the

parliamentary debate and public discussion carried on while the Act was

under consideration.  In relation to the contested provisions, it is

necessary to consider whether it was necessary:
a) to impose upon

each region the obligation to ensure that at least 1 public medical

facilities is located in each district within its territory, and if

there is not one, or if the availability of health care is not ensured,

then obligation for the region itself to found a public medical

facility;
b) to transform the legal persons listed in the Annex to the Act into public medical facilities.
 

In

my view, the legislature sufficiently substantiated the necessity of

this legislative scheme and the intervention into self-government and

the interference with property rights following therefrom.
 

The

legislature deemed it necessary to establish the principle that the

regions will share in the task of ensuring constitutionally protected

rights – everyone’s right to life, the right to the protection of

health, and the right of citizens to free medical care on the basis of

public insurance.  In order to bring these rights to fruition in

actuality presupposes that basic hospital care be geographically

accessible, which is the point of view that is without dispute very

important for ill persons.  The legislature was forced to take this step

by provable cases, where certain medical facilities within the

competence of the territorial self-governing units (recently transformed

to commercial companies) refused to provide certain forms of

indispensably necessary medical care, which signaled the danger that

territorial self-governing units will not be willing to play a role in

the effectuation of the mentioned constitutional rights and that they

assign all responsibility for the protection of public health solely on

the State.
 

The legislature

premised the adopted act on the notion that the right to the protection

of health, enshrined in Art. 31 of the Charter, imposes an obligation to

guarantee its effectuation not only upon the State, but also, as

public-law corporations, upon territorial self-governing units.  I am of

the opinion that a conception of the co-responsibility of the State and

of territorial self-governing units for the protection of health is

essentially correct and not in conflict with any constitutional acts. 

Otherwise also other legal norms, in particular Act No. 20/1966 Coll.,

on Human Health Care, as subsequently amended, presuppose such

participation.  The principle of the participation of the State and of

territorial self-governing units in ensuring the effectuation of

fundamental human rights is traditionally conceived as a self-evident

attribute of democratic society and, especially in the case of social

rights, is quite commonplace and time-tested – just as is the case, for

ex., in the effectuation of the right to education (Article 33 of the

Charter) or the right to a favorable environment (Article 35 of the

Charter).
 

The denial of

co-responsibility on the part of public-law corporations in effectuating

fundamental social rights, which the petitioners express in the text,

for ex., by the fact that they speak of the regions‘ obligation as of

the „burden“ of ensuring free medical care, strikes me as a warning sign

of diminishing social cohesion and solidarity in the area of health

care; I cannot acquiesce in this trend.
 

4.

In my view, the transformation of legal persons listed in the Annex to

the Act into public health facilities is rationally justifiable by the

need to form a backbone network of public non-profit hospitals,

primarily from the existing facilities which are already available.  In

order to ensure the basic medical care, it is entirely understandable to

select the legal form of a non-profit hospital; these hospitals should

be financed mainly from public sources (first and foremost from public

health insurance) and it is necessary to ensure that these public funds

are tied to the purpose for which they are designated (that is, health

care), not for the accumulation of profit.  In discussions when this Act

was being adopted, it was substantiated that certain medical facilities

which in the very recent past (in 2000 and 2002) were transferred from

the State to the regions, had refused, after they were transformed from

contributory organizations to commercial companies, to provide certain

of the areas of health care, as a result of which the geographical

accessibility of basic health care has worsened.  This situation would

consequently create pressure to found new medical institutions that

would ensure from public funds the full range of health care, which in

many cases would be an approach that is unbearably costly and wasteful,

since the existing network of hospitals has sufficient capacity, if not

excess capacity.  I consider this line of argument, made by those

supporting the adopted statutory scheme, as rational and sufficient to

substantiate its necessity.

5. I regard certain of the arguments given in the reasoning of the Judgment as imprecise and inapposite.

It

is asserted in point 48 of the reasoning, that it is a cardinal breach

of the territorial self-governing units‘ competence that the operation

of medical facilities, of which a region or a municipality is the

founder, are „subject to the administrative and supervisory authority of

the Ministry of Health“.  This assertion is only true in part,

however.  Any founder whatsoever (thus even a territorial self-governing

unit) is, in relation to public medical facilities, is endowed with

extensive powers resulting from § 12, among which are included, in

particular, the power to issue founding documents containing, among

other things, the delimitation of the types, forms, and areas of health

care to be provided (§ 3 para. 4, lit. d) of the Act), to issue the

medical facility’s statutes, the appointment of the medical facility’s

officials, and the approval of the medical facility’s budget.  The

direct management of the medical facility is performed by its own bodies

(its director and her deputy, the supervisory board), who are appointed

and removed by the founder.
 

It

is a fact that the Ministry of Health is endowed, in relation to public

medical facilities, with significant powers flowing in particular from §

33 of the Act, that is, the authority to set the extent of the

obligation to provide health care and to define the territory for which a

particular facility is responsible.  I believe that, in these cases,

the need for a certain restriction on the founder’s authority is

rationally justifiable by the need to ensure for all citizens within the

whole territory of the Republic a certain minimal level of free health

care, as well as the geographic accessibility of that care.  Certain of

the obligations placed upon medical facilities by the Act (§ 33 para.

5), such as, for ex., to provide health care in the case of mass

accidents, poisonings or natural disasters, are without doubt entirely

justifiable in the public interest or result from international

obligations (for ex., to provide health care to citizens of the European

Union states).
 

The Act

takes into account the fact that decision-making by the Ministry in

these cases occurs following discussions with the region, the health

insurance companies and with the relevant Councils (§ 33 para. 1).
 

I

believe that the intrusion, thus defined by statute, into the

autonomous competence of regions and municipalities (in its position as

founder of public medical facilities) is both necessary and

proportional.
 

6. Nor do I

agree with the statement of judgment annulling § 34 para. 2 of the Act

with the reasoning in point 62 of the Judgment’s reasoning that this

provision violated the regions‘ property rights.
 

The

mentioned provision states that „[t]he regions shall ensure that in

each district within their territory is located at least 1 public

medical facilities“.  According to § 2 of the Act, the State, a region, a

municipality or a natural or legal person can be the founder of a

public medical facility.  There is not doubt that the regions‘

obligation to ensure the placement of medical facilities can be met by

various means, which need not affect the regions‘ property rights, if

the region arranges for someone else to become the founder or if the

funds needed to found come, for ex., from subsidies, gifts, etc.
 

One

cannot spot, in the very obligation to create the conditions for

geographical accessibility of health care, a disturbance of the

independent competence of territorial self-governing units – for that

matter, this obligation follows from other legal enactments, for ex.

from the Act on Human Health Care.  The analogous assertion applies also

for that portion of § 34 para. 6, annulled as well by the Judgment,

which, regarding the need to found a public medical facility, imposed

upon regions the obligation to discuss that the municipality in which

the health care should be provided.  Neither do I regard this as an

unconstitutional interference with property rights or an intrusion upon

the regions‘ independent competence.
 

7.

In contrast thereto, the imposition of the duty to found public medical

facilities (if such is not done by some other founder), such as is laid

down in § 34 para. 6 in fine, could be regarded as an interference with

property rights or the intrusion upon the autonomous competence of the

regions.  However, I consider that, even in this case, such a limitation

is necessary and proportionate.
 

I

do not agree with the assertion, found in point 62 of the Judgment,

that „[t]he obligation is thus placed upon regions to carry out, at

their own expense, those tasks which follows from the constitutional

order of the State (the Charter and international agreements)“.  As I

have already stated above in Part 3 of this Separate Opinion, I believe

that it is erroneous to conceive of the effectuation of the right to the

protection of health, enshrined in Article 32 of the Charter, solely as

an obligation imposed upon the „State“ in the sense of the central

institutions of power and organizational units of the State.  I consider

it self-evident that territorial self-governing units are also bearers

of public-law obligations in guaranteeing the protection of civil rights

and freedoms.
 

8. I believe

that, in terms of constitutional law, even the provisions of § 40 para. 5

pass muster, where they state that „[o]wnership rights in the property

of the joint-stock companies listed in the Annex to this Act, which

their incorporators invested into them when establishing them, shall, on

the day a public medical facility comes into being, pass to the

founder“.  Even if this is an instance of an interference with the

private property of a commercial company, thus a private-law subject, in

my view it meets the conditions in Art. 11 para. 4 of the Charter,

which provides that „[e]xpropriation or some other mandatory limitation

upon property rights is permitted in the public interest, on the basis

of law, and for compensation“.
 

I

see the satisfaction of the condition of public interest in the

circumstance which was already mentioned above.  The compensation for

the assignment of ownership rights is ensured by the State’s obligation

to cover the settlement share of a co-proprietor of a limited liability

company, as follows from § 40 para. 6 of the contested Act.
 

9.

The line of reasoning in point 62 of the Judgment’s reasoning is

imprecise where it asserts that, in founding a public medical facility, a

region will not be able „to influence the inclusion of particular

medical facilities into the network“.  Sec. 34 para. 4 of the Act

presumes at least participation by the regions, where it states that,

concerning inclusion into the network, „the Minister of Health shall

decide following agreement with the relevant Council and the region on

whose territory the public medical facility will be located, and

following prior discussion with health insurance companies“.

10.

I also do not agree with the assertions contained in points 62 and 63

of the Judgment’s reasoning to the effect that „as follows from the

contested provisions, on the other hand, the State is not obliged in any

manner to ensure the financial arrangements from public funds for the

newly founded public health facilities“, and that this obligation is

being imposed „without the State making any sort of prior guarantee to

ensure the sources of financing toward that design“.
 

I

believe that the adopted Act does create such a guarantee in its § 15

para. 5, where among the revenues of public health care facilities are

included also finances from public health insurance and from other

public sources and, in particular, then in § 43, which amends § 17 of

Act No. 48/1997 Coll., on Public Health Insurance.  This last stated

provision imposes upon the health insurance companies the statutory

obligation to conclude with public health care facilities a contract for

the provision and reimbursement of health care.  
 

11.

I do not agree with the assertion contained in point 66 of the

Judgment’s reasoning to the effect that § 34 para. 3, lit. a), § 40, and

the Annex to Act No. 245/2006 Coll. violate the principle of the

protection of legitimate expectations, as „the medical facilities that

are not included in the Annex to Act No. 245/2006 Coll. have

unilaterally been discriminated against in comparison to those subjects

listed in the Annex, as the legislature has not defined its selection

criteria“.  An analogous assertion concerning the failure to define

selection criteria is also contained in point 69 and point 72 of the

Judgment’s reasoning.
 

This

assertion is not entirely precise because such criteria are included, at

least as examples in § 34 para. 4 of the Act.  The criterion is, in

part, to ensure the accessibility of health care and, in part, the

possibilities of the system of public health facilities.  It can be

presumed that criteria defined in this way are broadly vague, at the

same time however, the question must arise as to whether, for the

resolution of such a complicated and multi-faceted process, it is even

possible to define in law more precise normative criteria for selection.

 
 

12. In points 67, 68, and

69 of the Judgment’s reasoning, Act No. 245/2006 Coll. is criticized

because the method of enumeration was use in its Annex, as it

individually named 146 facilities, which become ex lege public medical

facilities.  Allegedly the maxim of the generality of legal regulation, a

fundamental principle of the law-based state, is thereby violated.
 

Although

I do not in any way call into doubt the correctness of this general

requirement, also recalled in several previous Constitutional Court

judgments (for ex. nos. Pl. US 55/2000, Pl. US 24/04), I believe that,

under certain specific conditions, the „method of enumeration“ for

regulation is permissible and constitutionally conforming.  A situation

which would justify such an approach would be, for ex., the creation of a

new type of legal person by a public law norm, into which the

legislature comprehensively assigns a group of individually designated

subjects which satisfy certain statutorily declared criteria.  That is

the case in this very instance.  We can find examples of such an

approach from past Czech legislation, for ex. in the enumeration of

public schools of higher education in the Annex to Act No. 111/1998

Coll., on Schools of Higher Education; otherwise, even individual

subjects, for ex., Czech Television, the Czech Railways, the General

Health Insurance Company, were declared, in special statutes, to be

legal persons in the sense of § 18 para. 2 of the Civil Code.
 

In

conclusion I would observe that one can no doubt espouse the view that

the contested legislative scheme is not ideal and that better

alternatives could hypothetically be imagined.  I acknowledge that

certain provisions of the contested act would require partial revision,

which would, however, be accomplished by the ordinary legislative

procedure.
 

I consider it an

exceedingly demanding task to successfully manage the reform of the

health care system, in particular, its financing from public funds,

which are genuinely limited,
 

Foreign

experience demonstrates that no guaranteed instructions exist for the

solution of this task, that various approaches may be chosen.  A

comprehensive legislative regulation of this problem demands that all

aspects of it, not only juristic but also economic and social, be

thoroughly considered, alone due to the fact that the organizational and

legal regulation of health care involves enormous expense covered from

public finances.  A defective resolution of this problem might arouse

social consequences capable of threatening the stability of society and

the State.  Responsibility for finding the optimal ways in which to

organize public health and its financing must be borne first and

foremost by the state-forming political forces and the democratic

legislature.
 

Even if I were

to concede that the approach elected by the legislature in this case

were not optimal, I still do not regard it as an unconstitutional

approach.  
 

For all the

given reasons, I believe that the provisions of Act No. 245/2006 Coll.

contested by the petition are not in conflict with the constitutional

order of the Czech Republic and that the petition should have been

rejected on the merits in accordance with § 70 para. 2 of the Act on the

Constitutional Court.
 

Brno, 27 September 2006




Dissenting Opinion

of Justice Eliška Wagnerová Dissenting from the Reasoning of Judgment No. Pl. US 51/06

In

paragraph 32 of the above-mentioned Judgment is stated that the

petitioner advanced objections along two lines.  On the one hand, it

objects to an interference with the protection of property rights

guaranteed by Art. 11 of the Charter and, on the other, to an

encroachment upon self-government guaranteed by Art. 8 and Art. 101 of

the Constitution.

1. It is apparent from the reasoning that the

majority began by dealing, first of all, with the issue of

self-government, into which it incorporated also the issue of the

protection of health and health care delivery, even though this is not

one of the competences enumerated in the Act on Regions.  Generally

speaking, only those affairs which relate to their citizens, that is,

citizens of the region or the municipality, generally fall within the

independent competence of territorial self-governing units.  Taken to

its logical conclusion, this claim would entail, in the case of

hospitals, that they would be designated for the use precisely and only

of citizens of the territorial self-governing unit, which would

naturally be in conflict with the principle of the free choice of

physician and medical facility.  Otherwise, also the media has in the

recent past referred to attempts to direct citizens only to the

„territorially appropriate“ hospital.  It would naturally be a different

situation if the task of hospitals founded within the independent

competence of a region (municipality) were not to ensure the needs of

its inhabitants; however, the line of argument in the Judgment does not

lead in this direction and it is a question whether it could have with

the current positive legal arrangement.

2. It would be difficult

to agree with the approach chosen for the constitutional review of the

contested provisions, which the Judgment divides into two units – „the

Principle of Proportionality“ and „the Principle of the Protection of

Fundamental Rights“.  I do not understand this division, as each

limitation upon a fundamental right or a constitutional principle is

then scrutinized in terms of proportionality.
Moreover, it is

apparent from the part entitled „the Principle of Proportionality“

(moreover, only in paragraph 61), that the proportionality of the

limitation was scrutinized „in relation to a fundamental right – that

is, in relation to the right of self-governing units to independently

manage their property and to the right to the protection of property“. 

From the perspective of doctrine, both of civil law and of fundamental

rights, I consider it as baseless to conceive of the right of

self-governing units independently to manage their own property as some

sort of free-standing fundamental right, which should be a manifestation

of self-government as such.  In contrast, I am of the view that in

performing this activity, they effectuates their property rights in

their various components according to which legal transaction is

concerned in relation to which item of property possessed by a

self-governing units.
 

Accordingly,

in my view it would have been appropriate to review the matter solely

in terms of the proportionality of the limitation upon the right of

property, for the protection of which it is anyway entirely irrelevant

who the owner is, as follows from Art. 11 para. 1, second sentence, of

the Charter, whereas the range of owners is naturally limited only by

the principle that they must be persons capable of bearing fundamental

rights.
I am of the view that, in adjudicating the proportionality of

the limitation on the right to property, the Constitutional Court

should have followed upon its Judgment No. Pl. US 5/03, particularly the

portion thereof in which it found to be disproportionate the limitation

upon the right to property of regions and municipalities in relation to

items of property acquired from the State, which consisted in the fact

that these items should be, for a period of 10 years, used solely for

the purpose for which it was used on the day that title to it passed. 

The relevant provisions envisaging this limitation were accordingly

annulled as a disproportionate limitation upon the right to property. 

Although the majority judgment refers to the 2003 judgment, it does not

further work with, or does not develop, its conclusions, which is the

direction of review which I would have preferred.

3. Since I am

of the view that the contested provisions did not pass the test of

proportionality of restrictions upon property rights (which conclusion

the judgment also reached by certain detours and among other grounds),

it was necessary to annul the contested provisions on this precise

ground, and on it alone.  In my view, it is illogical and lacking in

purpose to further review them in relation to other constitutional

principles, as is done in the Judgment, as it subjects to further review

legal norms which have already been found to be unconstitutional and

which therefore must be annulled solely and exclusively for that reason.
 

Brno, 27 September 2006




Supplemental Dissenting Opinion
of

Justice Ivana Janů and Justice Miloslav Výborný Dissenting from the

Reasoning of the Judgment of the Constitutional Court Plenum in matter

No. Pl. US 51/06

In the sense of § 14 of Act No. 182/1993 Coll.,

on the Constitutional Court, as subsequently amended, we submit a

supplemental separate opinion dissenting from the reasoning of the

Judgment, since – in our opinion – when annulling the contested

provisions of Act No. 245/2006 Coll., the Constitutional Court Plenum

should have accentuate the following principles.
 

The

legislature may also safeguard the effectuation of the fundamental

rights enshrined in Art. 31 of the Charter of Fundamental Rights and

Basic Freedoms („Everyone has the right to the protection of his health.

Citizens shall have the right, on the basis of public insurance, to

free medical care and to medical aids under conditions provided for by

law.“) by establishing a network of non-profit inpatient medical

facilities.  One need not view as unconstitutional an approach whereby

the legislature grants appropriate advantages to medical facilities in

this network (consisting, for ex., in the certainty of entering into

contracts with health insurance companies).  The establishment of the

network in the manner which the legislature employed in the case of the

contested provisions cannot, however, pass muster in terms of

constitutional law, as the State has, by the obligatory inclusion,

without clear and reviewable criteria, of selected subjects into the

mentioned network, interfered with the rights and legally protected

interests of other subjects (chiefly of the regions and municipalities),

moreover in a situation where it had, in the preceding period, divested

itself of title to a large number of medical facilities, by

transferring them, by statute, to regions or municipalities.
 

There

is nothing hindering the legislature in laying down clear criteria and

rules making, on the satisfaction of which is conditioned the entry of

medical facilities of municipalities and regions (just as other

non-state subjects) into a non-profit network.  In this way, not only

can the principle of the protection of and respect for the rights of

self-governing units and its property be satisfied, but also the maxim

of co-responsibility of municipalities and regions for the health of

inhabitants of their territory.  It is precisely through the independent

competence of territorial units that the preponderant part of public

medical services are performed.  Thus, there is not doubt that, in order

for health care reform to be successfully carried out, it is

indispensable for the municipalities and regions, public law

corporations, and the State to act in common.
 

27 September 2006