2008/10/14 - Pl. ÚS 40/06: Obligatory Membership in Czech Medical Chamber

14 October 2008

HEADNOTES

The

Czech Medical Chamber, governed by Act No. 220/1991 Coll., as amended

by later regulations, cannot be defined as an ‘association’ specified by

Art. 20 para. 1 of the Charter of Fundamental Rights and Basic

Freedoms, and thus obligatory membership of the same (§ 3 para. 1 of the

Act) is not capable of aggrieving the right of free association

incorporated by the above-specified Article of the Charter.


 

CZECH REPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUBLIC


The

Constitutional Court Plenum, composed of Stanislav Balík, František

Duchoň, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimír Kůrka,

Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Miloslav

Výborný, Eliška Wagnerová, and Michaela Židlická, adjudicated the matter

of a petition filed by a group of Senators from the Senate of the

Parliament of the Czech Republic, represented by JUDr. Milan Vašíček, an

attorney at law with a registered office at No. 57 Lidická St., Brno,

concerning the annulment of § 3 para. 1 of Act No. 220/1991 Coll. on the

Czech Medical Chamber, the Czech Dental Chamber, and the Czech

Pharmaceutical Chamber as follows:


The petition is denied.


 


REASONING


I.
Recapitulation of the petition


1.

A group of Senators from the Senate of the Parliament of the Czech

Republic, referring to Art. 87 para. 1 clause a) of the Constitution of

the Czech Republic (hereinafter the “Constitution”) and in accordance

with § 64 para. 1 clause b) of Act No. 182/1993 Coll. on the

Constitutional Court, as amended by later regulations (hereinafter the

“Act on the Constitutional Court”), by a filing delivered to the

Constitutional Court on 25 May 2006, proposed that the Constitutional

Court annul § 3 para. 1 of Act No. 220/1991 Coll. on the Czech Medical

Chamber, the Czech Dental Chamber, and the Czech Pharmaceutical Chamber,

as amended by later regulations (hereinafter “Act No. 220/1991 Coll.”),

whereby it is imposed that each physician exercising a medical

profession in medical and preventive care in the territory of the Czech

Republic is obliged to be a member of the Czech Medical Chamber, due to a

conflict of the above-specified regulation with the constitutional

order, specifically with Art. 4 para. 4, Art. 20 para. 1, Art. 26 para.

1, and Art. 27 para. 1 of the Charter of Fundamental Rights and Basic

Freedoms (hereinafter the “Charter”).

2. The petitioners

primarily expressed their conviction that “the right of free association

also comprises the right not to associate, provided that the given

entity is not interested in associating”, and that the right freely “to

associate” as specified by Art. 20 para. 1 of the Charter contains also

the right “not to associate” covered by equal constitutional protection.

3.

According to the petitioners, the principle of obligatory membership of

the Czech Medical Chamber, “a public law corporation associating all

physicians”, forces each physician to choose between two

constitutionally guaranteed rights: that of free exercise of profession

(Art. 26 para. 1 of the Charter) and the right of free association or

non-association (Art. 20 para. 1 of the Charter). If a physician wishes

to “utilise” their right of free exercise of profession, they must

obligatorily join “the organisation with which they (for example) do not

want to identify themselves” and, vice versa, if a physician wishes to

exercise their right to freely not associate, they can but waive their

right of free exercise of profession.

4. The petitioners proclaim

that when limiting fundamental rights and basic freedoms it is

necessary to preserve their fundamentals and sense, and, therefore, “it

is necessary to apply the least limitations which still lead to the

achievement of the desired objective, and it is necessary to choose

restrictions proportional to the significance of the pursued objective”,

while “the entire system of restrictions is then governed by the

principle of subsidiarity, when no restriction can be made where the

desired purpose could be achieved without any such restriction”.

5.

With respect to Art. 26 para. 2 of the Charter (Art. 4 para. 4), the

need for the above-mentioned “choice” is acceptable, according to the

petitioners, only when the same is necessary in order to achieve a

constitutionally legitimate objective and only when the same is

proportional “to the importance of the purpose in view”.

6. The

petitioners identify this purpose approved by constitutional law with an

understandable necessity of creating a suitable regulatory framework

for the profession of a physician, since such a profession requires

extraordinary expertise and diligence, and the exercise of such a

profession immediately affects essential interests of individual natural

persons concerning the maintenance of their lives and good health. The

petitioners acknowledge that “it is surely a legitimate and

constitutionally acceptable objective of the state to strive for

adequate regulation in the provision of medical care and to supervise

the quality of the provided services”, since “treatment affecting the

physical integrity of individuals carried out by physicians often

represents expertly and ethically extraordinarily demanding procedures

which are, at the same time, irreversible or difficult to correct”.

According to the petitioners, supervision by the state is thus a

legitimate interest capable of substantiating a restriction of

fundamental rights and basic freedoms, and, therefore, “legislature has

chosen a way” which “pursues a legitimate objective”; the petitioners

then do not question that the professional chamber (the Czech Medical

Chamber) is capable of achieving this purpose through the supervision

entrusted to it by law.

7. However, according to the petitioners,

compulsory membership of the Czech Medical Chamber is not the only

possibility of administering “public affairs in a health care service”,

in particular of supervising the exercise of the profession of

physicians, and guaranteeing their professional qualifications. The

Chamber is not necessary when “equally effective regulation” is

available through “direct exercise of state administration”, within the

framework of which the state would define proficiency and other

requirements for the exercise of the medical profession, and inspect,

directly through its executive bodies, compliance with the same without

forcing individual physicians to identify themselves with a

“professional organisation” (that is without infringing the

constitutionally guaranteed right of association or “non-association”).

8.

The petitioners declared, in support of the “pattern based on

non-obligatory membership of the medical chamber”, that the same “is

largely applied in Europe”, that it shows no particular disadvantages

compared to the system existing in the Czech Republic, and since it does

not affect the constitutionally guaranteed right of association, it is

“more acceptable from the viewpoint of the constitutional order of the

Czech Republic”.

9. While, for instance, “association in a

corporative body in the nature of a professional chamber is

unambiguously necessary” in the case of advocacy, since exercise of

advocacy “is very often aimed against the state, its interests and

bodies, be it defence in criminal proceedings, suits against the state

concerning compensation for loss, administrative actions, and suchlike”,

in the case of the medical profession there is no special reason for

establishing supervision over the exercise of such a profession through a

professional self-government, since, according to the petitioners,

“there is no such sufficiently ambivalent relationship of the physicians

to the state that would justify their necessary isolation from state

administration – and would thus also enforce their obligatory membership

of the chamber”.

10. The petitioners then consider it important

that the general public projects the attitudes held by the Czech

Medical Chamber towards its individual members. This is seen as a

precarious issue in particular due to the fact that the Czech Medical

Chamber is “a corporation, i.e. a legal entity with its own actions,

will, attitudes, reputation, objectives, and values”, and “carries out

actual activities, communicates with its environs, and participates in

events which are perceived in a certain way by the public”, “acts

politically, makes declarations on economic and political issues, takes

political stands, supports this or that government or non-government

strategy for health care services, prefers procedures which are approved

by one group of physicians and disapproved by another, etc.”, and “is

closely interconnected, in terms of personnel, with the Ministry of

Health which exerts direct influence over the same”. “This awareness,

this reputation and effect of the Czech Medical Chamber” is, according

to the petitioners, logically more or less transferred onto the members

of the Chamber. Those who are identified by the public with the Chamber

may be “displeased” that the public connects them with activities with

which they “fundamentally” disagree or which they consider to be an

assault on their own interests.

11. According to the

petitioners, the legislature has thus not respected the criterion of

necessity as they restricted the constitutionally guaranteed rights of

individuals, i.e. the freedom of association. Even though it was for a

legitimate purpose, it was prepared “completely superfluously and thus

unacceptably”; “unless such association is necessary – and comparison

with foreign countries shows that it is not – there is no other way than

to designate such forced membership as an unconstitutional

requirement”.

12. The petitioners finally stated their opinion

that the Constitutional Court should “possibly” postpone the

enforceability of a repealing judgment to some “suitable time” so that

the legislature could adapt the strategy of the health care service to

such membership of the Czech Medical Chamber which would not be

obligatory.
 


II.
Statements, opinions and reply
 

13.

The Constitutional Court, in accordance with the provisions of § 69 of

the Act on the Constitutional Court, transmitted the petition for

commencement of the proceedings to the parties to the proceedings – the

Chamber of Deputies and the Senate of the Parliament of the Czech

Republic. Beyond this statutory framework, the Constitutional Court also

addressed the institutions concerned, that is the Ministry of Health,

the Czech Medical Chamber, and the Czech Medical and Social Service

Workers Union; their statements were then forwarded to the petitioners,

who then submitted a reply to the same.

The Chamber of Deputies of the Parliament of the Czech Republic
14.

In their statement dated 1 February 2007, signed by Ing. Miloslav

Vlček, the Chairperson, the Chamber primarily stated that the

legislature (the former Czech National Council) acted, in terms of

handling the bill of Act No. 220/1991 Coll., in accordance with the

prescribed procedure and in confidence that the adopted act is not in

conflict with the Charter of Fundamental Rights and Basic Freedoms.

According to the Chairperson of the Chamber of Deputies, the sponsors of

the bill were aware that it goes beyond the concept of a number of

chambers which are usually established “as prestigious associations”,

while the mission of medical chambers is directed towards the civic

public, which the chambers wish to protect by controlling the quality of

expert medical care; the chambers wish to work as a basic controlling

element which would pursue the interests of patients in particular.

According to the sponsors, the organisational principle chosen was the

only one possible from a practical viewpoint; it was based on the

possibility of limiting the right to freely associate which is granted

by Art. 20 para. 3 of the Charter; took into account the right to

protection of health incorporated in Art. 31 of the Charter; and,

therefore, with respect to the professional aspects of such goods, it

does not represent a disproportional limitation. The Chamber of Deputies

pointed out that the annulment of § 3 para. 1 of Act No. 220/1991 Coll.

without affecting the similar provisions of § 3 para. 2 and § 3 para. 3

of the same Act which regulate obligatory membership of the Czech

Dental Chamber and the Czech Pharmaceutical Chamber, would necessarily

be unsystematic and lead “to certain discrimination”.

The Senate of the Parliament of the Czech Republic
15.

The Senate of the Parliament of the Czech Republic did not participate

in the legislative process (in relation to the contested provision),

however, they did take part in subsequent legislative amendment to Act

No. 220/1991 Coll., specifically that implemented by Act No. 285/2002

Coll. on Donating, Removing, and Transplanting Tissues and Organs, and

on Amendment to Certain Acts (Transplantation Act), and Act No. 111/2007

Coll. whereby Act No. 20/1966 Coll. on Public Health Care, as amended

by later regulations, and some other acts, are modified. With respect to

the above, the Senate exercised its entitlement to submit a statement

concerning the petitioners’ proposal (a contr. Judgment of the

Constitutional Court dated 27 June 2000, file Nos. Pl. ÚS 12/99, N 98/18

SbNU 355, 232/2000 Coll.).

16. The statement dated 2 February

2007, authorised by the President of the Senate, MUDr. Přemysl Sobotka,

points out that “many medical professional chambers exist in the world

with obligatory membership of physicians [of different scopes], such as

those in Austria, Germany, Belgium, and France, while those in Ireland,

Canada, and Great Britain feature obligatory registration”, and that a

similar issue (of obligatory membership of medical chamber) was dealt

with by the European Court of Human Rights in a decision in the case of

“Le Compte, Van Leuven and De Meyere v. Belgium, dated 23 June 1981, and

Albert and Le Compte v. Belgium, dated 10 February 1983”, in which it

was concluded that the professional chamber (the Belgian Medical

Association in the case under consideration) cannot be considered an

association as specified by Art. 11 of the Convention on the Protection

of Human Rights and Fundamental Freedoms (hereinafter the “Convention”),

and thus “the obligation of physicians to register with the list of

such an organisation and to be subject to the authority of its bodies

does not result in any limitation, let alone suppression, of the right

guaranteed by Art. 11 para. 1 of the Convention”. What is to be

considered, says the statement, is whether or not the obligation of each

physician exercising medical profession in the territory of the Czech

Republic to be a member of the Czech Medical Chamber may be qualified

“analogically… also in relation to the Charter”. In the statement, the

President of the Senate also questioned incredulously as to why the

petitioners did not contest the constitutionality of obligatory

memberships of the Czech Dental Chamber and the Czech Pharmaceutical

Chamber.

The Ministry of Health
17. The Ministry of Health

(hereinafter the “Ministry”), represented by MUDr. Tomáš Julínek, the

Minister, in their opinion dated 29 March 2007, stated that “however

they acknowledge” the specific nature of self-governing public law

corporations and their distinction both from clubs in the real sense of

the word (voluntary associations) and from associations which serve to

defend exclusively the socio-economic interests of their members, they

do not perceive these circumstances as a condition completely sufficient

for “non-application of Art. 20 and Art. 27 of the Charter of

Fundamental Rights and Basic Freedoms to their full extent”.

Additionally, according to the Ministry, when evaluating the

constitutional conformity of the legal regulation being contested, it is

necessary to proceed not only from Art. 20 and Art. 27, but also from

Art. 26 of the Charter, in connection with Art. 4 para. 4 of the same,

and examine whether the statutorily imposed obligatory membership of the

professional chamber does or does not violate the very nature of the

right to free choice of profession.

18. The Ministry

recapitulated the three components of the test of proportionality, that

is the criteria of suitability, necessity, and of measuring mutually

conflicting values according to their “significance”.

19. The

Ministry holds the opinion that the criterion of suitability “is

fulfilled at best only partly”, since doubtlessly legitimate public

interest may be “considerably more suitably” ensured by using the method

of direct exercise of state administration, without any clash of

interests between members (which are to be defended by such public law

corporations) and society. A self-governing corporation with obligatory

membership, according to the Ministry, “completely and clearly tends to

behave, in a certain form, as a cartel; this, in comparison with the

provision of services by the medical industry under standard, even if

regulated, conditions, leads to reduced effectiveness of managing

financial resources, as well as to a worsened quality of medical care”.

The Ministry also accentuated that “the extent of independence of the

Czech Medical Chamber” is “unparalleled in comparison with European

chambers endowed with the exercise of public power”.

20. From the

viewpoint of necessity, the principle of obligatory membership of the

Czech Medical Chamber, according to the Ministry, is “definitely” not

valid, since the pursued objective may again be achieved (for example)

through “direct exercise of state administration”. Even here the right

to free choice of profession is limited, since “each physician must be

aware that their activities will be supervised by an institution”, but

this system, believes the Ministry, is characterised by a greater

“implied” independence of the state body undertaking direct exercise of

the state administration in comparison with the Czech Medical Chamber,

whose elective officers are clearly motivated by their electors to

defend their own interests rather than those of potential competitors

(candidates for membership), or the public interest, such as that “in

thorough investigation of specific cases of failure by individual

members of chambers”.

21. With respect to the criterion of

“significance”, the Ministry believes it is true that, with respect to

the indubitable public interest present, “no measure or imposed

obligation which may lead to ensurance of maximum quality of care for

human health may be considered improper with reference to an intrusion

in a certain constitutionally guaranteed right”, but it does not affect

the argument on greater effectiveness and impartiality of supervision

over the exercise of the medical profession by a state body, when

compared with “a totally independent self-governing corporation”.

Nevertheless, the Ministry acknowledges that the conditions accompanying

the origination and existence of membership (§ 4 and § 9 para. 2 of Act

No. 220/1991 Coll.) do not represent an inadequate burden, and the

obligation to pay contributions to the “Chamber” is also legitimate,

naturally under the pre-condition of “adequacy of the amount of the

same”.

22. According to the Ministry, “two basic models” are

applied in “European” circumstances. One of them presumes “a highly

independent chamber with non-obligatory membership and considerably

limited exercise of public power”; the other is represented by “a

chamber with obligatory membership and extensive competencies of public

power, but to a large degree subject to control by an executive body”.

According to the Ministry, the Czech Medical Chamber represents a

hybrid, which, not only by its statutory competencies “but also

practical functioning”, goes beyond the position of an independent, yet

self-governing entity exercising public power and “exhibits a tendency

to infringe areas regulated by Art. 27 of the Charter of Fundamental

Rights and Basic Freedoms, in an attempt to enjoy the advantages of

being both an ex lege corporation and a quasi trade union defending the

economic and social interests of its members”. Experience demonstrates,

says the Ministry, that the above-mentioned roles are not always fully

compatible, in particular when there is a conflict of interests between

those of their members and the public, especially when the valid

regulation is lacking a “safeguard” similar to the “significant

inspection powers of the Ministry of Justice” over the Czech Bar

Association.

The Czech Medical Chamber
23. The Czech Medical

Chamber (hereinafter the “Chamber”), acting through MUDr. Milan Kubek,

its President, in a statement dated 6 February 2007, with respect to the

issue of the position and powers of “professional chambers in a

democratic law-based state”, firstly pointed out “our nation’s

traditions of … self-government” declared in the Preamble of the Charter

and emphasised, as a starting point for the considerations to follow,

that professional chambers, as public law corporations founded by law

and endowed with a certain scope of public law powers, are crucially

different from “clubs, trading companies, civic associations, and other

legal associations”, which, on the contrary, are of the nature of

private law entities. The Chamber stated that the fact that the petition

is aimed only against the Czech Medical Chamber, is unsystematic,

“probably also politically motivated”, and “remarkable”.

24. As

for contested obligatory membership, the Chamber stated “the issue that

somebody is obligatorily a part of a professional chamber does not mean

membership in terms of a club, in spite of the fact that Act No.

220/1991 Coll. uses this term; it means the granting of rights (but not

obligations) to participate in such a self-government”. That is why Art.

20 and Art. 27 of the Charter cannot be applied to professional

chambers, since they apply only to private law corporations. The term

“member” of the Czech Medical Chamber is positioned equally with the

term “citizen of a state” or “inhabitant of a municipality”, and the

inappropriateness of using the category of “membership” may be

demonstrated, in the opinion of the Chamber, using Act No. 85/1996 Coll.

on Advocacy, which consciously avoids this category and uses the

concept of ‘obligatory registration’. The possible transfer of powers of

the Czech Medical Chamber to the state is not, according to the

Chamber, “an issue of constitutional law but one of political decision”,

and necessarily this would lead to annulment of Act No. 220/1991 Coll.

in entirety. Subsequently, it would be necessary to establish an

“agency” to take over the agenda of the Czech Medical Chamber. This

would mean not only a commitment of the state to “pay for the same”,

but, in particular, lead to problems with setting up a “team of

officers” which would be able to “administer” the present powers of the

Chamber, given the professional specificity of the exercise of medical

profession. As for the issue of measuring the “values protected” by

constitutional law “and their alleged conflict”, the Chamber stated that

“a physician does not actually obligatorily associate with a medical

chamber, but their registration (‘membership’ at present) with a chamber

is merely evidence of their capacity to exercise the medical

profession, and of the fact that they are, at the same time, subject to

professional supervision by the Chamber”. Therefore, the arguments of

the petition are completely misleading, since being subject to

supervision by a professional chamber established under law does not

mean denial of the right not to associate.

25. The capability of

the contested legal regulation of fulfilling “the pursued purpose” is,

according to the Chamber’s statement, given by the capacity of

professional supervision and by disciplinary capacity; if membership of

the Chamber were selective or optional, “the disciplinary powers and the

entire professional supervision by the Chamber over the proper exercise

of medical profession would be unfeasible, since potential exclusion of

a physician from the Chamber would not prevent them from continuing to

practice the medical profession”.

26. It is also not suitable to

differentiate between “private” physicians and physicians as

“employees”. On the basis of individual special cases, the Chamber

justified why professional supervision should also be applied to the

latter category of physicians; for example, for reasons that not each

case of ethical or expert transgression of a physician constitutes a

case that would form a cause for termination of employment.

27.

With respect to “international connections”, the Chamber stated that

“the Council of Europe recommends member countries to replace the

position of state administration bodies with the operation of bodies of

professional self-government”, and remarked that a number of member

countries of the European Union accepted the principle of obligatory

membership of a given medical chamber, while other countries acknowledge

the “principle of obligatory registration, which is not defined as

‘membership’, but in effect means the same”, in other words, the

difference effectively lies at the level of “semantics and, in a way,

psychology”.

28. The Chamber denied the objection that they “act

politically”, and referred to the fact that in some cases (similarly to

advocacy) “they must defend the interests of citizens against the

interests of the state”, for example, as it is in the field of official

medical reviews by physicians.

The Czech Medical and Social Service Workers Union
29.

The Czech Medical and Social Service Workers Union (hereinafter the

“Workers Union”), represented by RNDr. Jiří Schlanger, the President, in

their opinion dated 5 February 2007, in particular highlighted the

significance of differentiating between a physician as an employee and a

physician exercising the medical profession independently on their own

account and liability (typically, these are private general

practitioners, private ambulatory specialists, and suchlike). In the

case of physicians as employees, exercise of their profession is subject

to direct control by employers, and such employers are (in principle)

liable for the employees towards third parties and, therefore, “only

voluntary membership of the Chamber is legally justified” for such

employees, possibly obligatory membership should remain in existence

solely for managers of medical establishments (deputies for medical and

preventive care and heads of wards.) According to the Workers Union,

alternative normative means, restricting less the values of

constitutional law under consideration, consist of obligatory membership

of the Chamber for “private physicians” and for “physicians as head

employees of medical establishments”, and of direct exercise of state

administration towards others. As for the issue of assessing values

protected by constitutional law in terms of their being in collision,

the Workers Union referred to previous conclusions and stated that the

solution to “the clash of fundamental rights” in the case of “physicians

as ordinary employees of medical establishments” is disproportional and

thus not acceptable.

Reply from the petitioners
30. The

petitioners, in their reply dated 18 May 2007, firstly outlined

regulation of supervision over the exercise of the medical profession in

some European countries (the Federal Republic of Germany, Austria,

Belgium, Norway, the Netherlands, Ireland, the United Kingdom, and

Slovakia) and concluded that “the present system in the Czech Republic,

entrusting endless powers to the Czech Medical Chamber without

supervision by the state, is completely different from other European

systems which do not undesirably infringe constitutionally guaranteed

rights”.

31. The petitioners further declared that they believe

the “right to medical professional self-government” is not a

constitutionally guaranteed one, and referred to opinions pronounced in

legal theory, according to which the constitutional concept of the

exercise of public power in the Czech Republic in a broad sense

“contains gaps and explicitly includes only local self-government, while

it does not acknowledge the existence of other forms of

self-government, such as professional, economic, scientific, social,

educational, or academic self-government” (“Ústavní právo ČR 1

/Constitutional Law of the Czech Republic 1/, Masaryk University, Brno

2003”), and its “faint constitutional support” may only be found in the

introductory declaration of the Charter of Fundamental Rights and Basic

Freedoms, where the drafter of the constitution acknowledges “our

nations’ traditions of … self-government”.
 
32. The petitioners

oppose the statement by the Chamber of Deputies by repeated accentuation

of the fact that obligatory membership of a professional organisation

is not the only conceivable concept, since the possibility of control

and supervision over individuals exercising a certain profession is not

based upon obligatory membership of such a controlling body, but upon

the powers entrusted to such a body. The petitioners repeated that

necessary expertise of control may be ensured by the state alone through

its “physicians-specialists”. The issue of the degree of onus of

conditions for membership of the Czech Medical Chamber is, according to

the petitioners, “totally irrelevant” (even if the conditions were set

as “completely minimal as they are at present”), since this “membership

is obligatory and compulsory” anyway. The annulment of similar

provisions of Act No. 220/1991 Coll. relating to obligatory membership

of the Czech Dental Chamber and the Czech Pharmaceutical Chamber has not

been proposed, since “it is necessary to infringe the legal order to

the least possible degree” and “the above Chambers perform their

functions somewhat better than the Czech Medical Chamber, and without

undue excesses”, and that is why it is proper to leave “amendments” to

the regulation, which may also be unconstitutional, up to the

legislature.

33. In connection with the statement by the Senate,

the petitioners doubted the aptness of the reference to the judgments

of the European Court of Human Rights dated 23 June 1981 in the case of

Le Compte, Van Leuven and De Meyere v. Belgium, Applications Nos.

6878/75; 7238/75, and dated 10 February 1983 in the case of Albert and

Le Compte, Applications Nos. 7299/75; 7496/76. The former judgment was

based on a situation when members of the Belgian Medical Association and

their interests were and still are very strongly controlled directly by

the state, which intervenes both in the appointment of members to the

bodies of the chamber and the wording of important regulations by the

chamber or disciplinary proceedings to a considerable degree. That is

why the petitioners believe it is not applicable to the differing

circumstances in the Czech Republic, where “the Czech Medical Chamber at

present effectively resembles a trade union or an association of

private law”, and in no way protects minority opinions held by the

“private physicians”, is politically engaged, and its members are

“additionally forced to pay for such a chamber”. As for the latter

judgment of the European Court of Human Rights, the petitioners state

that the relevant part “only refers” to the previous decision.

34.

By contrast, the petitioners refer to “more recent case law of the

European Court of Human Rights” which “deals in particular with the

right not to associate” and which does not explicitly exempt from the

same public law corporations, as well as to case law applying to the

formal origination or legal incorporation, and actual operation of

associations and corporations (Ҥ100 of Chassagnou and others v. France,

dated 29 April 1999”), as well as possibly to case law which confirms

the importance of the negative aspect of the freedom of association –

even though in connection with “compulsory membership of trade unions”

(“judgment Sorensen and Rasmussen v. Denmark, dated 11 January 2006” in

“§ 54”).

35. The petitioners also expressed a suspicion that

excluding the association of public law from the concept of association

as specified by Art. 11 of the Convention is intentionally biased, since

particularly associations founded by law may violate the freedom not to

associate and not to be forced to associate, since private law

associations can hardly have the resources for ensuring and enforcing

obligatory membership of the same; to this the petitioners added that

“the wording of Art. 20 of the Charter of Fundamental Rights and Basic

Freedoms by no means implies any difference for application to private

or public law associations”.

36. To the contrary, the

petitioners aligned themselves with the statement of the Ministry of

Health. They also see no reason, especially with respect to powers

entrusted to the Czech Medical Chamber and its actual “functioning”, for

which it would be possible to exclude the same from the effects of Art.

20 and Art. 27 of the Charter. The petitioners also highlighted the

argument of the Ministry that upon exercise of the administration of

this section of public affairs directly by a state body, such a body

would be more independent in comparison with the Czech Medical Chamber,

since the Chamber’s elective officers are logically motivated by their

electors “to especially defend their own interests as those of

physicians rather than interests of patients, i.e. the public interest”.

The petitioners exhibited that they are one in mind with the Ministry

also in the opinion that the legal definition of the Czech Medical

Chamber “considerably” deviates from “European regulations concerning

medical chambers”. They also remarked that Art. 11 para. 2 of the

Convention incorporates the criterion of “indispensability”, and “the

word ‘indispensable’ is not as flexible as the terms ‘useful’ or

‘suitable’”, and expressed a belief that it is the very case of legal

regulation of the Czech Medical Chamber where there was a confusion

between the terms “indispensability” and “suitability”.

37. The

petitioners “principally disagree” with the statement of the Czech

Medical Chamber, as it declares present membership of the Chamber is

“only in the nature of registration”; even though obligatory membership

of a medical chamber as such is not under all circumstances

unconstitutional, its unconstitutionality is based “only in connection

with the regulation of the medical chamber, which, in the case of the

Czech Medical Chamber, is starting to resemble, in some respects, an

association of private law”. The petitioners claim the opinion is

incorrect that, in the case of non-obligatory membership, supervision by

the chamber would become impossible, since a system “similar to the

English one” is conceivable, “where… all registered physicians are

subject to supervision by the chamber, and the chamber itself even sets

up its own ethical code”. Conventions of the Council of Europe, to which

the Chamber refers, do not apply directly to professional

self-government, but only to local self-government, and recommendations

from the Committee of Ministers are not legally binding upon member

countries of the Council of Europe. As for the relationship between

physicians and the state as is inferred by the Chamber, the petitioners

object that within the scope of official medical reviews a physician is

effectively in the position of a “quasi-body” of the state, and their

activities go against the patient and not against the state, as was

claimed. In conclusion, the petitioners assessed that the statement by

the Chamber – in entirety – implies “the Chamber’s natural desire to

retain its present position of a self-governing professional

organisation and one which has all conceivable competencies without

being accountable to anyone or controllable in any way”.

38. The

petitioners then agreed with the Czech Medical and Social Service

Workers Union insofar that it is necessary to take into account the

differences between both types of exercise of the medical profession

(that is by private physicians and physicians as employees), however

they emphasised that if “the freedom of free association for protection

of economic and social interests is guaranteed to everybody, then the

same must apply equally to both physicians as employees and physicians

as private persons”.

39. On 6 June 2007, the Constitutional Court

received “Amendment to the statement dated 18 May 2007 with the journal

of the Czech Medical Chamber” appended with 15 copies of a journal

Tempus medicorum, year 2007, No. 5, published by the Czech Medical

Chamber. The petitioners explained that they did so in order to make it

possible for the Constitutional Court to “form a clear idea” of the

Czech Medical Chamber on the basis of this telling evidence on this

organisation.

40. Finally, on 30 June 2008, the petitioners

submitted another “Amendment to the statement”, in which they declared

their disagreement with the “exponents of obligatory membership”, and

referring back to earlier applied arguments, they developed the same in

detail. The petitioners denied the comparison of self-government and

state power, as well as the argument whereby state citizenship and

affiliation to a municipality or a region on one hand and obligatory

membership of a professional organisation on the other are considered

equal. “From this viewpoint”, local self-government is allegedly

purposeful, but this type of self-government is concentrated on local

affairs, and “as opposed to the Czech Medical Chamber, it usually does

not publish politically pronounced writings” and “does not promote the

opinions of a specific political party”. Whereas inhabitants who do not

agree with the acts of their municipality may move away, this is not

possible for a physician, even though external displays of the Chamber

are at a level “not unlike ‘Rudé právo’” [The Red Law, a pre-1989

official newspaper of the Communist Party of Czechoslovakia], and remind

one “of a basic unit of a certain political party”, which the

petitioners documented by appending another issue of the Tempus

medicorum journal. The petitioners acknowledged that the establishment

of a self-governing professional chamber is “merely a political

decision”, which in itself does not constitute any infringement of

constitutionally guaranteed fundamental rights, and that obligatory

membership is not always unconstitutional. However, they repeated what

they had previously stated, which is that the same becomes

unconstitutional only “in connection with the regulation of the medical

chamber”, when the same resembles an association of private law.

Repeatedly they designated “as absurd” the opinion that obligatory

membership is not connected with an obligation but a right to

participate in self-government, since physicians allegedly now have

“only the right to choose whether to practice their profession or not”.

Again they opposed the opinion that Art. 20 and Art. 27 of the Charter

do not apply “to professional chambers”, since – as they had stated

earlier – “the legislature, by using the term ‘membership’ and legal

regulation of their activities, approximated the Czech Medical Chamber

to a private law association”, and indeed, the Chamber actually operates

as thus. It is always necessary “to maintain a list of physicians from

which it is possible to verify their competency to exercise the medical

profession”, but this, according to the petitioners, does not justify

obligatory membership of the Czech Medical Chamber, since it may be

entrusted to a relevant state body. Finally, the petitioners consider

inappropriate the argument that the Chamber acts against the state in

the protection of the health of citizens (whereby the Chamber

approximates the bar association), since – amongst other points – until

now (as shown by “historic experience”) it endeavours not to protect

patients but its own interests or those of physicians themselves, and

their “usually financial” requirements. The petitioners sum up that

obligatory membership is thus neither justified by the necessity to

maintain a list of physicians, nor by protection of patients, since the

former task may be ensured without such membership, and the Chamber

“does not serve, and by its very nature, cannot serve” the latter. The

statement that takeover of the Chamber’s tasks by the state would be

inexpedient “with respect to the specific features of the medical

profession”, is, according to the petitioners, “mere speculation” which

is disproved by regulations that “function” in foreign countries.
 

 
III.
Oral hearing
 

41.

In the course of the oral hearing, representatives of the parties to

the proceedings (representatives of the petitioners, and the person

authorised to act on behalf of the Chamber of Deputies), summed up the

arguments contained in the previously submitted written filings. The

representative of the petitioners particularly pointed out the specific

features of the legal regulation of the Czech Medical Chamber,

consisting of its extraordinary independence and, at the same time,

insufficient supervision by the state, including vague judicial

supervision. The representative of the Chamber of Deputies opposed this

and made it clear that they consider self-government to be generally

“more correct” governance of an organisation for the exercise of the

medical profession than state administration.
 

 
IV.
Active standing of the petitioners
 

42.

The petitioners infer their active standing for filing the petition

under consideration from Art. 87 para. 1 clause a) of the Constitution,

according to which the Constitutional Court decides on annulment of

statutes or individual provisions thereof if they are in conflict with

the constitutional order; in connection with § 64 para. 1 clause b) of

the Act on the Constitutional Court, according to which a petition

proposing the annulment of a statute or individual provisions thereof,

as specified by Art. 87 para. 1 clause a) of the Constitution, may be

submitted by a group of at least 17 Senators. In the given case, this

precondition has been fulfilled.
 


V.
Constitutional conformity of legislative process
 

43.

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

in decision-making in proceedings concerning annulment of a statute or

other enactment, according to its Chapter Two, Division One, the

Constitutional Court also examines whether the contested statute was

adopted and issued within the confines of the powers set down in the

Constitution, and in a constitutionally prescribed manner. However, this

requirement may be effectively applied only in the case that there is

an effective constitutional regulation, on the basis of which the legal

regulation under consideration was adopted; this implies that, with

respect to legal regulations issued prior to the effectiveness of

Constitutional Act No. 1/1993 Coll., the Constitution of the Czech

Republic, the Constitutional Court is entitled to review merely their

contentual accord with the present constitutional order, but not the

constitutionality of the procedure of their origination and compliance

with normative powers (cf. Judgment of the Constitutional Court dated 6

October 1999, file Nos. Pl. ÚS 9/99, N 135/16 SbNU 9, 289/1999 Coll.).

The above fully applies to the case under consideration, as Act No.

220/1991 Coll. was approved by the former Czech National Council on 8

May 1991 and became effective on 1 June 1991, that is prior to the

effectiveness of the Constitution of the Czech Republic; the contested

provisions of § 3 para. 1 were not affected by any amendment to this Act

made in the relevant period of time (that is by Act No. 285/2002 Coll.

and Act No. 111/2007 Coll.). Moreover, the petitioners did not claim any

relevant procedural deficit.

44. Following the establishment of

such, the Constitutional Court proceeded to examine the content of the

contested provisions of the Act from the viewpoint of its compliance

with the constitutional order of the Czech Republic [Art. 87 para. 1

clause a) of the Constitution].
 


VI.
Wording of the contested provisions of § 3 para. 1 of Act No. 220/1991 Coll.
 

45.

The provisions of § 3 para. 1 of Act No. 220/1991 Coll. contested by

the petitioners state: each physician who exercises a medical profession

in medical and preventive care in the territory of the Czech Republic

must be a member of the Czech Medical Chamber.
 


VII.
Self-government and constitutional order of the Czech Republic
 

46.

The issues of professional self-government are subject to

constitutional law review less frequently than those of local

self-government; that is why their substantive examination in the case

law of the Constitutional Court is not widespread. Theory acknowledges

the term (in addition to local self-government) of “other forms of

public law self-government”, which include, for example, professional,

academic, economic, insurance, and educational self-government (Filip,

J.: Ústavní právo České republiky. 1, Základní pojmy a instituty.

Ústavní základy České republiky /Constitutional Law of the Czech

Republic. 1, Basic Terms and Institutes. Constitutional Basis of the

Czech Republic/; Brno: Masaryk University, published by Doplněk, 2003,

p. 501).

Local self-government
47. The Constitutional Court in

a Judgment dated 19 November 1996, file Nos. Pl. ÚS 1/96 (N 120/6 SbNU

369, 375, 294/1996 Coll.), stated that the Court “considers local

self-government to be an irreplaceable component for developing

democracy. Local self-government is an expression of the right and

capability of local bodies – within limits specified by law, within the

scope of liability, and in the interest of local inhabitants – to

regulate and manage some public affairs.” In a Judgment dated 9 July

2003, file Nos. Pl. ÚS 5/03 (N 109/30 SbNU 499, 211/2003 Coll.), the

Constitutional Court added that, according to the basic thesis on which

the concept of self-government was founded, the basis of a free state

consists of a free municipality, then (from the viewpoint of regional

importance) at a higher level of local hierarchy, of a self-governing

community of citizens – a region.

Professional self-government
48.

As for professional self-government itself, the Constitutional Court

expressed an opinion – in relation to the profession of a veterinarian –

in a Judgment dated 16 April 2003, file Nos. I. ÚS 181/01 (N 58/30 SbNU

97), that “this is an issue relating to the ‘special-interest

self-government’, specifically professional chambers with obligatory

membership, associating self-employed natural persons exercising certain

professions, where there is a strong public interest in the proper

exercise thereof. These chambers are legal entities of public law,

founded by law, endowed with the competence of adopting various internal

regulations for the chamber and members thereof, who must, with respect

to obligatory membership, subject themselves to the same. The chamber

thus exercises certain authoritative powers over such members – people

belonging to a certain professional class. These powers typically

include … disciplinary powers”. Regarding the issue “whether membership

of the Czech Veterinary Chamber is obligatory or not”, the

Constitutional Court added, as obiter dictum, that with respect to

obligatory membership of the Chamber, and the above-mentioned public

interest in the exercise of the given profession, “(similarly to proper

operations of attorneys at law, notaries public, physicians,

pharmacists, patent attorneys, and suchlike)” the Chamber has been

entrusted “certain authoritative powers, so that the Chamber is able to

ensure such a requirement. The very existence of any self-government by

definition limits state bureaucracy, makes it possible for people to

take immediate care of affairs which directly affect them, and thus

contributes to greater freedom and independence of an individual. That

is also why professional self-government is supported by a democratic

law-based state”. “However, with respect to its operations, it is

necessary to insist on unconditional compliance with fundamental rights

and basic freedoms which are under the protection of independent

judicial power, and within such protection as ‘ultima ratio’ safeguarded

by the Constitutional Court as a judicial body protecting

constitutionality”.

49. Art. 21 para. 1 of the Charter, whereby

citizens are guaranteed the right to participate in the administration

of public affairs (Filip, J.: Ústavní právo České republiky. 1, Základní

pojmy a instituty. Ústavní základy ČR /Constitutional Law of the Czech

Republic. 1, Basic Terms and Institutes. Constitutional Basis of the

Czech Republic/; Brno: Masaryk University, published by Doplněk, 2003,

p. 502), may be considered the constitutional basis for professional

self-government. It is appropriate also to refer to the Preamble of the

Charter, whereby “The Federal Assembly, on the basis of the proposals of

the Czech National Council and the Slovak National Council, …

proceeding from … our nations’ traditions of democracy and

self-government … has enacted this Charter of Fundamental Rights and

Basic Freedoms”.

50. Otherwise, the constitutional order does not

provide explicit support for the origination of this type of

self-government, and the requirement to establish ‘professional

chambers’ is not thereby imposed on the legislature.

51. Legal

theory has formulated a conclusion that the Constitution explicitly does

not regulate public law forms of self-government other than local

self-government, but this surely does not mean that the Constitution

excludes the same (Filip, J.: Ústavní právo České republiky. 1, Základní

pojmy a instituty. Ústavní základy ČR /Constitutional Law of the Czech

Republic. 1, Basic Terms and Institutes. Constitutional Basis of the

Czech Republic/; Brno: Masaryk University, published by Doplněk, 2003,

p. 503); besides there is the “principle of a democratic state under

Art. 1 para. 1 of the Constitution of the Czech Republic, and then the

unwritten principle of a social state, to which also the principle of

participation in the administration of public affairs should apply, and

more so in the administration of affairs which directly affect citizens

and which must be authoritatively organised in any case” (p. 506 ibid).

52.

Therefore, even if it were possible to agree with the petitioners that

direct constitutional law support for professional self-government “is

faint”, from what is mentioned above it is implied that such

self-government is not, within this context, completely neutral, and

favourable evaluative tendencies, in particular in relation to the

“state” administration confronted by the petitioners, are perceivable.
 


VIII. Public health protection
 

53.

The determining aspect for the organisation of supervision over

practice of the medical profession thus is protection of public health,

this being under circumstances when the existence of a special

constitutional guarantee of a right to professional self-government

cannot be convincingly inferred. Within these boundaries, the

constitutional order provides the legislature with relatively wide scope

for considering how the same should be specifically ensured;

guaranteeing (the organisation of such) proper expert exercise of

medical care (exercise of medical profession) is then undoubtedly one

(and an important example) of the requirements enabling this objective

incorporated by constitutional law to be achieved. Under Art. 6 para. 1

of the Charter, everyone has the right to life; and Art. 31 establishes

that everyone has the right to protection of their health.

54.

In accordance with a Judgment of the Constitutional Court dated 27

September 2006, file No. Pl. ÚS 51/06 (No. 483/2006 Coll.), it is worthy

to note that “the rights to life and health, as specified by Art. 6

para. 1 and Art. 31 of the Charter of Fundamental Rights and Basic

Freedoms respectively, are absolute fundamental rights and values”.

55.

The importance of life and health in a constitutional law context may

similarly be inferred from Art. 2 of the Convention on the Protection of

Human Rights and Fundamental Freedoms (published in Collection of Laws

under No. 209/1992 Coll.), Art. 12 of the International Covenant on

Economic, Social and Cultural Rights (promulgated in Collection of Laws

under No. 12/1976 Coll.), Art. 24 of the Convention on the Rights of the

Child (promulgated in Collection of Laws under No. 104/1991 Coll.),

Art. 11 and Art. 13 of the European Social Charter (promulgated under

No. 14/2000 of the Collection of International Agreements), possibly

from Art. 2 and Art. 3 of the Convention for the Protection of Human

Rights and Dignity of the Human Being with regard to the Application of

Biology and Medicine, as amended by its Supplemental Protocol of 12

January 1998 (promulgated under No. 96/2001 and No. 97/2001 in the

Collection of International Agreements).

56. It is worth noting

that according to the Conclusions of the Council concerning common

values and principles in health systems of the European Union (2006/C

146/01), published in the Official Journal of the European Union dated

22 June 2006, health systems form an indivisible part of Europe’s social

infrastructure. When negotiating future strategies, the common interest

should lie in protection of values and principles on which health

systems of the European Union rest. The Council of the European Union

also noted the intention of the European Commission to develop

principles of the Community for safe, high-quality, and effective

medical care by strengthening co-operation among member countries, and

ensuring clarity and certainty in the enforcement of the law of the

Community in the field of medical services and medical care. According

to the Statement on common values and principles of Health Ministers of

the European Union, on which health systems of the European Union rest,

and which form an appendix to the above-mentioned Conclusions of the

Council of the European Union, basic values include universality, access

to high-quality care, equality, and solidarity, such values being

generally acknowledged by various bodies of the European Union in their

work. All health systems of the European Union endeavour to focus

primarily on the patient and to respond to their individual needs, but

various member countries adopt varying attitudes to the application of

such values in practice. Ministers of Health noted growing interest in

the issue of the role of market mechanisms (including pressure by

economic competition) in managing health systems, and stated that it is

up to each member country to determine their own approach containing

specific modifications tailored towards each individual health system.
 


IX. Systems of supervision over the exercise of medical profession
 

57.

Detailed information on the conditions for approaching the medical

profession, as well as on supervision over the exercise of the same, is

provided by a study from the World Health Organisation, “Regulation and

Licensing of Physicians in the WHO European Region” issued in 2005, and

available at www.euro.who.int/document/e87789.pdf.

58.

The professional association of physicians in France, the French Medical

Chamber (see www.conseil-national.medecin.fr) is of the nature

of a “public service”. The law establishes that membership of the

chamber is a pre-condition for the exercise of the profession of a

physician (/the Chamber/ “obligatorily associates all physicians

exercising medical practice”). The Chamber decides on registrations in a

list of physicians, and ensures compliance with ethics and a

professional quality of medical care, and is competent to handle

disciplinary proceedings against its members. In Austria, there are

medical chambers for individual states as well as the Austrian Medical

Chamber (http://www.aerztekammer.at/) to which all physicians authorised

to exercise medical profession belong as regular members. The Chamber

maintains a list of all physicians in Austria entitled by the state

chambers to exercise the profession, be they regular or associate

members, and the Chamber is entitled to administer disciplinary

proceedings. The chambers are also entitled to protect and support the

working, social, and economic interests of physicians. In Germany, the

central organisation in the system of medical self-government consists

of the German Medical Association (http://www.bundesaerztekammer.de/).

The positions of medical chambers in Germany are regulated by law

governing individual states. In Bavaria, for example, there are district

and regional medical clubs and a medical chamber, and each physician

exercising their profession (or residing) there has a duty to register

with the district medical club, of which they become members following

payment of a fee. Professional association in Belgium, the Belgian

Medical Association (http://www.ordomedic.be/), holds the position of a

public law corporation with a legal personality, the membership of which

is obligatory; medical practice may only be exercised by those

registered on the list of the Association. The Association deliberates

on registration on the list of physicians, ensures compliance with

medical ethics and rules for the exercise of medical practice, and

administers disciplinary proceedings.

59. On the contrary, in

Great Britain, the task to “protect, support, and maintain public health

and safety” is assigned to the General Medical Council

(http://www.gmc-uk.org/) which is of the nature of a corporation (body

corporate); all physicians must be obligatorily registered with the

Council. The Council consists of elected members (by all registered

physicians); other members are appointed by various designated

institutions (universities with medical faculties, Royal Colleges), and

nominated by the Privy Council. (Davies, M.: Medical Self-regulation.

Crisis and Change. Medical Law and Ethics, Ashgate, 2007, pp. 15 et

seq.; the Parliament of the Czech Republic, Office of the Chamber of

Deputies, Parliamentary Institute: Postavení lékařských komor v

zahraničí /Position of medical chambers in foreign countries/,

Informational base No. 5.033, January 1994).

60. The conditions

for the exercise of the medical profession in the First Czechoslovak

Republic were governed by Act No. 113/1929 of the Collection of Laws and

Orders, on Medical Chambers (in the wording of Act No. 176/1934 of the

Collection of Laws and Orders), where § 3 para. 1 says that “all

physicians who permanently reside in the district of the medical chamber

and exercise medical practice … are members of the medical chamber”.

This did not apply to physicians “appointed to national service (both

civil and military)” who were members of the chamber “only insofar as

their practice beyond these confines is concerned”. The Chamber was of

the nature of a public law self-governing corporation, and its

Honourable Council exercised disciplinary powers (§ 27 para. 1).
 


X. Freedom of association
 

61.

With respect to the framework for the constitutional law review set up

by the petitioners concerning the contested provisions of § 3 para. 1 of

Act No. 220/1991 Coll., the key issue involves the question of its

conformity with the freedom of association, or its incorporation within

the constitutional order.

62. Art. 20 para. 1 of the Charter, to

which the petitioners referred, determines that the right of free

association is guaranteed, and everybody has the right to associate

together with others in clubs, societies, and other associations.

According to Art. 20 para. 3 of the Charter, the exercise of these

rights may be limited only in cases specified by law, if it involves

measures that are necessary in a democratic society for the security of

the state, the protection of public security and public order, the

prevention of crime, or the protection of the rights and freedoms of

others.

63. Art. 11 para. 1 of the Convention says that everyone

has the right to freedom of peaceful assembly and to freedom of

association with others, including the right to form or join trade

unions for the protection of their interests. According to Art. 11 para.

2 of the Convention, no restrictions shall be placed on the exercise of

these rights other than such as prescribed by law and necessary in a

democratic society in the interests of national security or public

safety, for the prevention of disorder or crime, for the protection of

health or morals or for the protection of rights and freedoms of others.

This article shall not prevent the imposition of lawful restrictions on

the exercise of these rights by members of the armed forces, of the

police or of the administration of the State.

64. The negative

aspect of the freedom of association (‘negative right of freedom of

association’) is then generally understood to be the possibility of

freely deciding not to be a member of a certain association, and a

corresponding prohibition of forcing any person to associate (cf.

Judgment of the Constitutional Court dated 11 June 2003, file Nos. Pl.

ÚS 40/02, N 88/30 SbNU 327, No. 199/2003 Coll.).

65. It is not

questionable that the meaning and extent of the term ‘association’

established in Art. 11 para. 1 of the Convention, and in Art. 20 para. 1

of the Charter, that is in “general norm of the right of association”

(Klíma, K.: Komentář k Ústavě a Listině /Commentary on the Constitution

and the Charter/. Pilsen: Aleš Čeněk Publishing House, 2005, p. 757),

are equivalent. Even the petitioners do not claim any relevant

difference or any reasons therefor.

66. Here, as was mentioned

earlier, the petitioners resorted to the statement that “excluding the

association of public law from the concept of ‘association’ as specified

by Art. 11 of the Convention is intentionally biased”, and that “the

wording of Art. 20 of the Charter of Fundamental Rights and Basic

Freedoms by no means implies any difference for application to private

or public law associations”; they refer (specifically) to differences

between the Czech Medical Chamber and the Belgian Medical Association

evaluated by the European Court of Human Rights in a judgment dated 23

June 1981 in the case of Le Compte, Van Leuven and De Meyere v. Belgium,

Applications Nos. 6878/75; 7238/75, and, furthermore, “more recent case

law of the European Court of Human Rights”.

67. Therefore, it is

necessary to deal with the question whether Art. 11 of the Convention

and Art. 20 para. 1 of the Charter are applicable ratione materiae in

relation to the Czech Medical Chamber.
 


XI. Decision-making practice of the bodies of the Convention
 

68.

According to the decision-making practice of the bodies of the

Convention, the viewpoint that the term ‘association’, normatively

regulated by Art. 11 para. 1 of the Convention, must be given an

autonomous meaning, is determining in terms of interpretation. National

law classification has only a relative value and forms only a starting

point.

69. The issue whether a medical chamber falls within the

effects of Art. 11 of the Convention was dealt with by the European

Court of Human Rights in its judgment dated 23 June 1981 in the case of

Le Compte, Van Leuven and De Meyere v. Belgium, Applications Nos.

6878/75; 7238/75, and in a decision on admissibility dated 6 November

2003 in the case of Popov and others, Vakarelova, Markov and Bankov v.

Bulgaria, Applications Nos. 48047/99, 48961/99, 50786/99, and 50792/99;

and by the European Commission of Human Rights in a decision on

admissibility dated 8 July 1992 in the case of Simón v. Spain,

Application No. 16685/90. In such cases, the bodies of the Convention

established that the institutions under consideration are not

associations as specified by the above-mentioned article, and that is

why an infringement of the negative aspect of the freedom of association

by obligatory membership of the same could not have occurred.

70.

The European Court of Human Rights, in a judgment dated 23 June 1981 in

the case of Le Compte, Van Leuven and De Meyere v. Belgium,

Applications Nos. 6878/75; 7238/75, dealt with the Belgian Medical

Association. The Court stated that the Association is an institution of

public law, it was established not by individuals but by law, it is

integrated within the state structure, and judges nominated by the King

are appointed to the majority of its bodies. The Association pursues an

objective in the public interest, specifically protection of health, and

this by ensuring, in compliance with the relevant law, a form of public

control over the exercise of medical practice. Within this power, it is

especially required to maintain a list of the members of the

Association. In order to carry out the tasks entrusted to it by the

state, this organisation has been endowed with some administrative,

normative, and disciplinary privileges exceeding the sphere of ordinary

law, and thus it utilises legal instruments of public power.

71.

The European Court of Human Rights, in its decision on admissibility

dated 6 November 2003, in the case of Popov and others, Vakarelova,

Markov and Bankov v. Bulgaria, Applications Nos. 48047/99, 48961/99,

50786/99 and 50792/99, evaluated the Bulgarian Medical Association and

Bulgarian Dental Association (hereinafter the “Associations”). The Court

remarked that the bodies of the Convention steadily view the regulatory

bodies of freelance occupations as not being associations as specified

by Art. 11 of the Convention. Generally, the objective of these bodies

established by law is regulation and support of professions, whereby

they exercise significant public law functions aimed at protecting the

public. Thus they cannot be compared to private law associations or

trade unions, and remain integrated within the state structure.

Nevertheless, the Court must resolve in concreto whether both

Associations in the given case, characterised by their functions,

structures, and memberships, are associations falling under Art. 11 of

the Convention, or whether they are effectively public law institutions,

where contested obligatory membership of the same cannot interfere in

the freedom of association. In this connection, the Court noted that the

Associations – similar to the Belgian Medical Association – pursue

objectives in the public interest, specifically protection of health,

this by exercising, in compliance with relevant law, public control over

the exercise of medical practice; in particular they maintain

registries of physicians and dentists, are authorised to create rules,

and bestowed with disciplinary powers. They propose codes of

professional ethics for physicians and dentists, adopt rules of good

practice together with the National Health Insurance Fund in accordance

with the Act on Professional Organisations of Physicians and Dentists,

and impose sanctions for medical malpractice. The Court thus concluded

that the Associations apply procedures of public power. Furthermore, the

Court had to address a specific objection from the petitioners that the

Associations are private law associations, since they are authorised to

negotiate and effect the National Framework Contract with the National

Health Insurance Fund. In their opinion, such a Contract is comparable

with a collective agreement setting up terms and conditions under which

physicians and dentists work and receive remuneration (which is a task

of trade unions, and thus the Associations have features of trade unions

within the scope of Art. 11 of the Convention). However, the Court

stated that the National Framework Contract does not regulate such

issues as wages and working conditions; the Contract applies to payments

which may be required by the providers of medical care from the

National Health Insurance Fund for services provided to insured persons,

as well as quality, quantity, and the manner of provision of such

services. According to the Court, the Contract is thus similar to a

price controlling mechanism rather than to a collective agreement. For

example, if a hospital is effecting an individual contract with the

National Health Insurance Fund on the basis of the National Framework

Contract, it may be hardly stated that the relationship in question is

similar to that of an employee and employer. Even though it is true that

individual contracts effected by (private) physicians and dentists

extensively affect the manner of work and prices that may be charged to

an insured person, they still do not resemble employment contracts,

since they only set up the terms and conditions under which services are

provided to patients, and amounts which may be required by physicians

and dentists from the National Health Insurance Fund for medical

services provided. The Court added that remunerations for medical

services provided to patients holding a different type of health

insurance or no health insurance whatsoever are not regulated by the

Contract. The Court also referred to a “recent” decision by the

Bulgarian Supreme Administrative Court which concluded that the Contract

may be compared with secondary regulations and is subject to judicial

review. Therefore, the Court stated that from negotiations on the

Contract and effecting of the same, it cannot be inferred that the

Associations act as trade unions; the structures of the Associations are

described in detail in the Act on Professional Organisations of

Physicians and Dentists, including the structures and functions of the

central and regional bodies of both Associations, and membership of such

bodies (the statutes of the Associations deal only with subsidiary

issues, such as exact numbers of members of the bodies, and technical

details of procedures of appointing the bodies). The Court also added

that memberships of the Associations were based on a decision by an

individual to practice a profession which requires special legal

regulation, and not on other factors, such as ownership of land (a

contrario report of the Commission dated 30 October 1997 in the case of

Chassagnou and others v. France, Application No. 25088/94, para. 89).

72.

The European Commission of Human Rights in its decision dated 8 July

1992, in the case of Vialas Simón v. Spain, Application No. 16685/90,

stated that medical chambers in Spain are public law institutions

established by law and pursuing the public interest – the protection of

(public) health – by ensuring certain public control over the exercise

of medical practice and compliance with medical ethics. Within the

powers entrusted to the medical chambers by the state, the chambers

enjoy certain administrative as well as disciplinary privileges. Medical

chambers also participate in the process of creating legal norms and

implementary regulations, possibly give their opinions on proposals in

the field of health care services, submitted by bodies of public power.

According to the Commission, with respect to the powers granted to the

medical chamber, it is proper to conclude that this is not an

association as specified under Art. 11 of the Convention. In the given

case, the petitioner claimed that for physicians active in the public

sector, chambers are nothing but associations recognised by this

Article, since typical functions of control over exercising medical

practice and compliance with medical ethics, with respect to such

physicians, are exercised by bodies of administration employing such

physicians. However, the Commission referred to a judgment of the

Spanish Constitutional Court dated 17 July 1989, and concluded that even

the fact that the state ensures compliance with statutory and

contractual obligations by physicians employed by the state, cannot be

equated to (as was required by the petitioner) removing the powers of

medical chambers in relation to physicians employed in the public

sector, so that they would carry out control over exercise of medical

practice and compliance with medical ethics.

73. The bodies of

the Convention inferred that Art. 11 of the Convention is neither

ratione materiae applicable in the case of other professional chambers.

74.

It is proper to refer also to a partial decision by the European

Commission of Human Rights on admissibility dated 12 March 1981 in the

case of Barthold v. Germany, Application No. 8734/79, which related to

obligatory membership of the Council of Veterinary Surgeons.

75.

In a decision on admissibility dated 8 September 1989 in the case of

Revert and Legallais v. France, Applications Nos. 14331/88 and 14332/88,

the Commission concluded, in relation to obligatory membership of the

French Chamber of Architects, that the obligation imposed by law to join

the Chamber of Architects is aimed at protecting the public interest

(an interest which is not specified in closer detail, but, from the

context of the case, identifiable also with protecting recipients of the

services, or the public).

76. In a decision on admissibility

dated 2 July 1990 in the case of A. and others v. Spain, Application No.

13750/88, the Commission made it clear that bar associations in Spain

are institutions of public law regulated by law and pursuing objectives

in the general interest, which is support of free and adequate legal aid

and thus support of justice. The Commission accentuated that

registration with the list maintained by the chamber, such a list

representing a preliminary and indispensable condition for the exercise

of the profession of an attorney at law, is open to anyone who meets the

statutory conditions. The Commission then added that professional

chambers are not, according to the settled decision-making practice of

the bodies of the Convention, associations as specified by Art. 11 of

the Convention.

77. The Court, in a decision on admissibility

dated 3 April 2001, in the case of O. V. R. v. Russia, Application No.

44319/98, in connection with the issue of membership of Archangelsk

Notarial Chamber, realised again that chambers of freelance occupations

are not associations as specified by Art. 11 of the Convention. The

purpose of these bodies established by law is to regulate and support

such occupations and also to fulfil public law tasks for the protection

of the public. Thus they cannot be compared with trade unions – they

remain integrated within a state’s structure.

78. In a decision

on admissibility dated 12 October 2004 in the case of Bota v. Romania,

Application No. 24057/03, the Court also referred to settled case law,

according to which chambers of freelance occupations are institutions of

public law, regulated by law and pursuing objectives in the public

interest, and thus Art. 11 of the Convention does not apply to them. The

Court emphasised again that the Romanian Bar Union under evaluation in

this case was established by law and pursues an objective in the general

interest, which is to support adequate legal aid and, implicitly,

support justice.

79. We may point out other decisions by the

European Commission of Human Rights, where the bodies of the Convention

concluded that the entities under evaluation stand outside the impact of

Art. 11 of the Convention, such as a decision on admissibility dated 6

July 1977 in the case of Association X. v. Sweden, Application No.

6094/73 (Association “A. Studentkar” was under assessment), a decision

on admissibility dated 12 April 1991, in the case of Halfon v. United

Kingdom, Application No. 16501/90 (Exeter College Students' Union), a

decision on admissibility dated 10 July 1991 in the case of Weiss v.

Austria, Application No. 14596/89 (Carinthian Chamber of Commerce), and a

decision on admissibility dated 14 January 1998 in the case of M. A. v.

Sweden, Application No. 32721/96 (Stockholm University's Student

Union). Other decisions from the case law of the European Court of Human

Rights include a decision on admissibility dated 14 September 1999 in

the case of Karakurt v. Austria, Application No. 32441/96 (board of

employees), and a decision on admissibility dated 4 July 2002 in the

case of Köll v. Austria, Application No. 43311/98 (tourism association).

80.

For the sake of completeness, it is proper to note that, on the

contrary, infringement of the negative aspect of the freedom of

association in contravention of Art. 11 of the Convention was proclaimed

by the European Court of Human Rights (as for membership of trade

unions), for example, in a judgment dated 13 August 1981 in the case of

Young, James and Webster v. United Kingdom, Applications Nos. 7601/76,

7806/77, a judgment dated 20 April 1993 in the case of Sibson v. United

Kingdom, Application No. 14327/88, a judgment dated 25 April 1996 in the

case of Gustafsson v. Sweden, Application No. 15573/89, a judgment

dated 11 January 2006 in the case of Sorensen v. Denmark, Applications

Nos. 52562/99 and 52620/99, also in a judgment dated 30 June 1993 in the

case of Sigurdur A. Sigurjónsson v. Iceland, Application No. 16130/90

(Frami Automobile Association), and in a judgment dated 29 April 1999 in

the case of Chassagnou and others v. France, Applications Nos.

25088/94, 28331/95 and 28443/95 (approved municipal hunters’

associations).
 


XII. Case law of the Constitutional Court
 

81.

The Constitutional Court has expressed its opinion on the attributes of

professional chambers in the above-mentioned Judgment dated 16 April

2003, file Nos. I. ÚS 181/01, N 58/30 SbNU 97 (see clause 48). The Court

also identified itself with the doctrinal definition in a Judgment

dated 25 June 2002, file Nos. Pl. ÚS 36/01, N 80/26 SbNU 317, 403/2002

Coll., having based its opinion on aspects defining the term ‘public law

body’; the Court considered these to include factors of public purpose,

method of foundation of the same, and powers entrusted to the same.
 


XIII. Legal characteristics of the Czech Medical Chamber
 

82.

With respect to opinions continually held by the Constitutional Court

concerning the importance of its own previous case law, as well as

decisions by the bodies of the Convention, in particular the European

Court of Human Rights, and their consequences on the assessment of the

specific case, it suffices to say that the Constitutional Court again

proceeds from both types of decisions (as was explained in the previous

Sections X and XII).

83. Attention is thus paid to the issue

whether the opinions declared up to now in these resources regarding

‘professional self-government’, or ‘professional chambers’, in relation

to Art. 11 of the Convention and Art. 20 para. 1 of the Charter, are

applicable in the case of the Czech Medical Chamber. In this it is not

omitted that the aspects determining interpretation as presented are of

informative value particularly when viewed together.

Establishment of the Czech Medical Chamber
84.

The Czech Medical Chamber was established by law (provisions of § 1

para. 1 of Act No. 220/1991 Coll.) and defined as a self-governing

non-political professional organisation endowed with a legal

personality, associating all physicians registered on the list

maintained by the Chamber itself (§ 1 para. 2 and 3 of Act No. 220/1991

Coll.).

85. Therefore, the Chamber is characterised by the same

form of establishment as other professional chambers, which, according

to the decision-making practice of the bodies of the Convention, stand

beyond the effects of Art. 11 of the Convention. In addition, other

professional chambers were established by law within the legal order of

the Czech Republic: the Czech Dental Chamber, the Czech Pharmaceutical

Chamber (§ 1 para. 1 of Act No. 220/1991 Coll.), the Czech Chamber of

Patent Attorneys (§ 22 of Act No. 237/1991 Coll. on Patent Attorneys, or

Act No. 417/2004 Coll. on Patent Attorneys and on Amendments to Act on

Protection of Industrial Property), the Czech Veterinary Chamber (§ 1 of

Act No. 381/1991 Coll. on the Czech Veterinary Chamber), the Notarial

Chamber of the Czech Republic and notarial chambers at seats of regional

courts (§ 35, or § 29 of Act No. 358/1992 Coll. on Notaries and Their

Operations), the Czech Chamber of Architects and Czech Chamber of

Authorised Engineers and Technicians Operating in Building Development

(§ 23 of Act No. 360/1992 Coll. on Execution of Profession of Authorised

Architects and Authorised Engineers and Technicians Operating in

Building Development), the Chamber of Tax Advisers of the Czech Republic

(§ 9 of Act No. 523/1992 Coll. on Tax Advisory Services and the Chamber

of Tax Advisers of the Czech Republic), the Chamber of Auditors of the

Czech Republic (§ 24 para. 2 of Act No. 524/1992 Coll. on Auditors and

the Chamber of Auditors of the Czech Republic, or Act No. 254/2000 Coll.

on Auditors), the Czech Bar Association (§ 40 para. 3 of Act No.

85/1996 Coll. on Advocacy), and the Chamber of Distress Officers of the

Czech Republic [§ 6 and § 109 para. 1 of Act No. 120/2001 Coll. on

Judicial Distress Officers and Their Operations (Rules of Distress) and

on Alterations to Other Acts].

86. Even the manner of

establishment of the Czech Medical Chamber affirms the opinion that it

is an institution identifiable with those treated by the bodies of the

Convention as public law corporations (see clauses 69 to 79 above),

whilst it differentiates from associations as assessed by the European

Court of Human Rights in the judgment referred to by the petitioners,

dated 29 April 1999, in the case of Chassagnou and others v. France,

Applications Nos. 25088/94, 28331/95 and 28443/95. The approved

municipal hunters’ associations under assessment remained “private law

institutions”, while Act No. 64-696 dated 10 July 1964, known as “Loi

Verdeille”, then represented an “invitation to membership of association

established under an Act from 1901”, which applies (para. 32 and para.

99 of the above-quoted judgment) to private law association (thereby the

judgement on the relative informative value of compliance with the

above-specified criterion is not doubted, as it is implied, for example,

in relation to the origination of a “private law” joint stock company

on the basis of Act No. 77/2002 Coll. on the Joint Stock Company ‘České

dráhy’ /Czech Railways/, ‘Správa železniční dopravní cesty’ State

Organisation /Railway Infrastructure Administration/, and on Alterations

to Act No. 266/1994 Coll. on Railways, as amended by later regulations,

and of Act No. 77/1997 Coll. on State Enterprises, as amended by later

regulations; cf. file No. III. ÚS 63/06).

Obligatory membership
87.

Due to “compulsory” membership under § 3 para. 1 of Act No. 220/1991

Coll., the Czech Medical Chamber resembles a public law corporation

according to case law summary in Sections XI and XII, and in such case,

the objection that there is a completely “intentionally biased”

exclusion of “association of public law from the concept of association

as specified by Art. 11 of the Convention”, is purely fanciful. The

consideration of the petitioners that “private law associations can

hardly have the resources for ensuring and enforcing obligatory

membership of the same” then also goes against the ambition to reconcile

obligatory membership with “private law institutions” or associations

as specified by Art. 11 of the Convention, evidenced by cases evaluated

by the European Court of Human Rights and listed in clause 80 above.

Supervision over the exercise of medical profession
88.

When the Czech Medical Chamber, under § 2 para. 1 clauses a) and b) of

Act No. 220/1991 Coll., sees to it that members exercise their

profession expertly, in accordance with its ethics and in a way

determined by law and rules of the Chamber, and guarantees the expertise

of its members and approves compliance with conditions for exercise of

the medical profession under special regulations, then the purpose of

its establishment is to ensure proper practice of the medical profession

as such and, with respect to the nature of the same (see Section VIII

‘Public health protection’), “fulfilment of public law tasks for the

protection of the public”, with this being beyond any doubt.

Normative powers
89.

The provisions of § 2 para. 1 clause a) of Act No. 220/1991 Coll.

anticipate that the Czech Medical Chamber issues “rules of the Chamber”,

and by the provisions of § 15 para. 2, the Chamber is granted powers

“to approve, modify and annul the rules of organisation, procedure,

election, and discipline”. This normative power is exercised by the

convention of delegates to which authority to issue (“approve”) also

other regulations of the Chamber is attributed, as is inferred from a

non-exhaustive enumeration of powers of such a body. Normative power is

typical also of other professional chambers, one of the most

comprehensive examples being the regulation included in Act No. 85/1996

Coll. on Advocacy (§§ 49-53).

90. Autonomous normative powers,

binding upon the members of the Chamber, thus represent “a constitutive

element of public power entrusted to a public law corporation” (Beran,

K.: Právnické osoby veřejného práva /Legal Entities of Public Law/.

Prague: Linde, 2006, p. 63).

91. For this conclusion, decisive in

terms of the issue under consideration, it is no longer relevant to

solve the issue of possibly reviewing this creation of norms

(“professional regulations”). However, it is beyond doubt untrue that

decisions by bodies of the Chamber which interfere with the legal

position of members of the same are not subject to judicial review, or

that obligations imposed on the individual members on the basis of

professional regulations (cf. the above-specified Judgment of the

Constitutional Court dated 16 April 2003, file No. I. ÚS 181/01) are

completely beyond the scope of judicial protection. Besides, the

petitioners’ objection that relevant judicial supervision is lacking is

clearly aimed at another issue than obligatory membership, this being

the matter exclusively under consideration here.

Personnel and disciplinary powers
92.

The Czech Medical Chamber maintains a list of members [§ 2 para. 1

clause e) of Act No. 220/1991 Coll.] and a list of visiting persons [§

6a para. 1 of Act No. 220/1991 Coll.]. The public law nature of

registrations on the lists maintained by the Czech Medical Chamber is

retained even under the very limited conditions applicable to

administrative discretion allowed under the provisions of § 4 and § 6a

para. 2 of Act No. 220/1991 Coll. An applicant wishing to be placed on

the list of members of the Chamber and not subsequently registered by

the Chamber on said list, or whose listing was not processed in due

time, has the right to seek judicial protection (§ 6a para. 11 and § 7

of Act No. 220/1991 Coll.).

93. Even following the date of

effectiveness of Act No. 95/2004 Coll. on Medical Professions of

Physicians, Dentists, and Pharmacists, it remains under the power of the

Czech Medical Chamber to set conditions for the exercise of private

practice of its members and of the function of authorised

representatives under special regulation, as well as of head physicians

and heads of wards in non-governmental medical establishments, and to

issue certificates on complying with such conditions [§ 2 para. 2

clauses c) and d) of Act No. 220/1991 Coll., professional regulation No.

11 - Licensing Rules]. The option of judicial review has been preserved

(§ 2 para. 3 and 4 of Act No. 220/1991 Coll.).

94. In

“personnel” connections, it is also proper to refer to the right of the

Czech Medical Chamber to participate in tenders for staffing management

positions in health care services, to require from its members documents

related to the exercise of the profession, to give opinions concerning

the conditions and methods of the further education of physicians,

stomatologists and pharmacists, to take part in organising

specialisation tests, and to issue opinions binding upon members of the

Chambers relating to professional issues concerning the provision of

medical care and medical research [§ 2 para. 2 clauses b), g), h) and i)

of Act No. 220/1991 Coll.].

95. The Czech Medical Chamber has

been entrusted with disciplinary powers [§ 2 para. 2 clause f) of Act

No. 220/1991 Coll.] exercised by the Honourable Council of a district

association, or the Honourable Council of the Czech Medical Chamber (§

13 para. 1 and § 18 para. 1 of Act No. 220/1991 Coll.). A proposal for

commencing disciplinary proceedings under § 14 para. 2 clause c) of Act

No. 220/1991 Coll. is submitted by an auditing committee of a district

association [cf. also § 2 para. 2 clause e) of Act No. 220/1991 Coll.]

and the resulting decision by the Honourable Council of the district

association, whereby disciplinary measures are imposed, may be contested

by a remedy to be decided on by the Honourable Council of the Chamber.

The decision of the Honourable Council on imposing a disciplinary

measure is, under § l8 para. 5 of Act No. 220/1991 Coll., reviewable by a

court of justice.

96. The nature of summed-up personnel and

disciplinary attributes – as attributes indicative for a public law

corporation – was rendered by the Supreme Administrative Court in its

judgment dated 6 January 2005, file No. 6 As 36/2003-115, according to

which the disciplinary powers (here in relation to attorneys at law)

represent “a part of public administration, since if the same had not

been entrusted to the Chamber, it would have been a part of general

state administration”. There is no reason not to concur with this

conclusion; and as for “personnel and disciplinary” regulation of powers

of the Czech Medical Chamber thus there is, even here, a clear

similarity to those “public law corporations” assessed by bodies of the

Convention in Section XI above.

97. When the petitioners refer

to “more recent case law” of the European Court of Human Rights which,

in their opinion, “deals in particular with the right not to associate

and which does not explicitly exempt from the same public law

corporations”, and to case law “applying to the formal origination of

incorporation, and actual operation of associations and corporations

(§100 of Chassagnou and others v. France, dated 29 April 1999)”, it is

necessary to add that at the level of the powers entrusted, a

considerable difference exists between the Czech Medical Chamber and

approved “municipal hunters’ associations”, which according to the Court

did not enjoy “privileges exceeding the sphere of ordinary law, be they

administrative, normative, or disciplinary”, and thus did not utilise

“procedures of public power” (para. 101 of the above-specified

judgment).

Participation in proceedings under the Act on Public Health Insurance
98.

According to the provisions of § 2 para. 2 clause a) of Act No.

220/1991 Coll., the Chambers are entitled to participate in negotiations

on generating tables of tariffs for medical acts, on generating prices

of medication, pharmaceutical preparations, and tables of tariffs for

other services provided by pharmacies. Together with the regulation

contained in § 17 para. 3, § 17 para. 6, and § 48 para. 1 clause b) of

Act No. 48/1997 Coll. on Public Health Insurance, as amended by later

regulations, this represents a basis for various types of proceedings

featuring the participation of the Czech Medical Chamber in relation to

public health insurance, or the scope and conditions under which medical

care is provided from health insurance.

99. Provisions of § 17

para. 1 of Act No. 48/1997 Coll. specify that, in order to ensure the

material execution of the provision of medical care to insured persons,

the General Health Insurance Company and other health insurance

companies established under special statute (Act No. 280/1992 Coll. on

Departmental, Professional, Employees’ and Other Health Insurance

Companies, as amended by later regulations) effect contracts with

medical establishments concerning the provision of and remuneration for

medical care (‘individual contracts’). Prior to effecting these

individual contracts, a tender must be organised according to § 46 para.

2 of Act No. 48/1997 Coll.; the course of such tenders is regulated by

the provisions of § 46 to § 52; a representative of the relevant

professional organisation, which includes the Czech Medical Chamber, is a

member of the committee established by the organiser (Regional Council

or Prague City Hall) for each tender. However, the health insurance

company is not bound by the results of the tender – they “take the same

into account”, as well as they “take into account” the opinion of the

organiser, when effecting individual contracts (§ 52 para. 2 of Act No.

48/1997 Coll.) which are governed by the ‘Framework Contract’. This,

according to § 17 para. 3 of Act No. 48/1997 Coll., is a result of

negotiation procedure between representatives of health insurance

companies unions (representatives of the General Health Insurance

Company of the Czech Republic and employees’ health insurance companies)

and representatives of various group contractual medical establishments

represented by their own special-interest associations (including the

Czech Medical Chamber).

100. A Framework Contract should contain

provisions governing the time period of effectiveness, manner of and

reason for termination of an ‘individual contract’, should regulate the

manner of provision of remuneration for the medical care provided, the

rights and obligations of parties to the individual contract unless the

same are specified by law, general conditions for the quality and

effectiveness of medical care provision, conditions indispensable for

the discharge of the individual contract, a control mechanism relating

to the quality of care provided and accuracy of amounts charged, as well

as an obligation for mutual notification as regards relevant inspection

of the necessary data (§ 17 para. 3 of Act No. 48/1997 Coll.).

Framework Contracts agreed upon in individual segments of the medical

care provided are, following their acceptance, submitted to the Ministry

of Health which then evaluates their compliance with legal regulations

and the public interest, and subsequently issues the same as a decree

(at present, Decree No. 618/2006 Coll. whereby Framework Contracts are

issued, is effective). If no new contract is concluded prior the expiry

of the contract, the validity of the contract is prolonged until the

time a new Framework Contract is concluded. If the parties to the

negotiation procedure fail to agree on the contents of the Framework

Contract within a period of six months, or if the submitted Framework

Contract is in conflict with legal regulations or the public interest,

the Ministry of Health is then called upon to make the relevant

arrangements.

101. § 17 para. 6 of Act No. 48/1997 Coll. then

defines the procedure resulting in the determination of the ‘point

value’, the amount of reimbursement for medical care covered by health

insurance, and regulatory limits for the following calendar year.

Negotiation procedure is participated in by representatives of the

General Health Insurance Company of the Czech Republic, other health

insurance companies, and relevant professional associations of providers

as representatives of contractual medical establishments.

102.

When an agreement on ‘point value’, the amount of remuneration for

medical care covered by health insurance and regulatory limits is

arrived at, the contents of such an agreement is evaluated by the

Ministry of Health from the viewpoint of its compliance with legal

regulations and the public interest. If the result of the agreement is

found to be in compliance with the above, the Ministry of Health issues

the same as a decree. Should negotiation procedure bring about no such

result within 90 days prior to the termination of the given calendar

year, or when the Ministry of Health ascertains that the result of the

negotiation procedure does not comply with legal regulations or the

public interest, the Ministry establishes such parameters for the

following calendar year by a decree (Decree No. 383/2007 Coll. on

establishment of ‘point values’, the amount of remuneration for medical

care covered by health insurance and regulatory limits on the volume of

the provided medical care covered by public health insurance for 2008,

is currently effective). A list of medical acts with their ‘point

values’ is issued by the Ministry of Health as a decree (§ 17 para. 5 of

Act No. 48/1997 Coll.); prior to effectiveness of Act No. 267/2007

Coll. on Stabilisation of Public Budgets, negotiation procedure was also

applied in this process.

103. Upon evaluation of the powers of

participation in tenders and negotiation procedures so summarised, it is

proper to conclude that – in the context of the above-mentioned (clause

71) decision by the European Court of Human Rights on admissibility

dated 6 November 2003 in the case of Popov and others, Vakarelova,

Markov and Bankov v. Bulgaria, Applications Nos. 48047/99, 48961/99,

50786/99 and 50792/99 – even in this instance, it is not true that the

Czech Medical Chamber would thereby “resemble” a trade union (Art. 11

para. 1 of the Convention, Art. 27 para. 1 of the Charter). A clear

conclusion is inferred from the above-specified particulars of Framework

Contracts (and, subsequently, ‘individual’ contracts), this being that

regulation of relationships between health insurance companies and

medical establishments cannot be identified, in terms of their contents,

with an equivalent of collective agreements (principally specifying

relationships between employers and employees, and potentially their

rights and obligations in relationships of labour law). The same is true

for the regulation of the position of the Czech Medical Chamber to the

arrangement of determining the ‘point value’, the amount of

reimbursement for medical care covered by health insurance and

regulatory limits, where, in the words of the European Court of Human

Rights (ibid), it is “a price controlling mechanism” which, by the very

nature of the matter, is characterised not by private law attributes but

“public law” attributes.

 


XIV. Assessment of the petition for annulment of § 3 para. 1 of Act No. 220/1991 Coll.
 

104.

It is easy to identify with the fact that “non-local” public law

corporations of professional self-government show (similarly to local

self-government) the following attributes, they: 1/ are established by

law; 2/ are entrusted with the exercise of public power in relation to a

certain group of inhabitants; 3/ have a legal personality; 4/ have a

personal basis (a special reason for membership); 5/ are independent of

the state in terms of financing and budget; 6/ bear responsibility for

their actions; 7/ act in their own interest as well as in the general or

public interest; 8/ are, along with their activities, supervised by the

state; 9/ make authoritative decisions which may be contested at court

(see Filip, J.: Ústavní právo České republiky. 1, Základní pojmy a

instituty. Ústavní základy České republiky /Constitutional Law of the

Czech Republic. 1, Basic Terms and Institutes. Constitutional Basis of

the Czech Republic/; Brno: Masaryk University, published by Doplněk,

2003, pp. 500-501).

105. Similarly, it is possible to accept

reasoning that the statutory definition of the Czech Medical Chamber, as

presented in Section XIII, adequately reflects these attributes. The

Czech Medical Chamber completely fulfils attributes 1 to 5 above. (With

respect to attribute 5, it is proper to quote § 20 of Act No. 220/1991

Coll., according to which the Chambers independently manage their assets

and administer resources in accordance with their annual budgets. The

revenues of the Chamber are composed of members’ fees, grants,

donations, and other income. Revenue from fines is allocated to the

social fund of the Chamber.) The responsibility of the Chamber at the

level of civil and administrative law is also discernable. Acts passed

by the Czech Medical Chamber do not stand, as was stated above, beyond

the reach of judicial control (however problematic the arrangement of

normative powers and its judicial control seems to be – much like with

other chambers, with certain exceptions, such as with the Czech Bar

Association or the Czech Chamber of Patent Attorneys). Acting in the

public or general interest is indubitably correlated to the protection

of public health.

106. Case law description provided by the

Constitutional Court in its Judgment dated 16 April 2003, file No. I. ÚS

181/01 (clause 48), concerning the Czech Veterinary Chamber established

by Act No. 381/1991 Coll., corresponds with that mentioned above. It is

also proper to relate to the Czech Medical Chamber the conclusion that

it is one of several professional chambers “with obligatory membership,

associating self-employed natural persons exercising certain

professions, where there is a strong public interest in the proper

exercise thereof. These chambers are legal entities of public law,

founded by law, endowed with the competence of adopting various internal

regulations for the chamber and members thereof, who must, with respect

to obligatory membership, subject themselves to the same. The Chamber

thus exercises certain authoritative powers over such members – people

belonging to a certain professional class. These powers typically

include … disciplinary powers”.

107. It has already been

emphasised in particular points in Section XIII, in relation to “legal

characteristics” of the Czech Medical Chamber summarised there, that

these attributes as “public law” factors separate the Czech Medical

Chamber from such “private law” associations which enjoy natural

protection under Art. 11 of the Convention, or Art. 20 para. 1, and

possibly Art. 27 para. 1, 2 of the Charter.

108. It is crucial

that these legal attributes also make it possible to identify the Czech

Medical Chamber with such institutions evaluated by the bodies of the

Convention (in particular the European Court of Human Rights) in

decisions enumerated in Section XI. It is evident that there indeed

exists no relevant difference between the Czech Medical Chamber and –

for example – the Belgian Medical Association evaluated by the European

Court of Human Rights in the case of Le Compte, Van Leuven and De Meyere

v. Belgium as an “institution of public law”, established not by

individuals but by law, integrated in the state structure, pursuing an

objective in the public interest, specifically as regards protection of

health, by ensuring, in accordance with the relevant law, a form of

public control over the exercise of medical practice; for the execution

of tasks entrusted… by the state, it enjoys some administrative,

normative and disciplinary privileges outside the sphere of ordinary

law, “and thus it utilises legal instruments of public power” (see

clauses 69 and 70). On the contrary, the argument of the petitioners

that the Belgian Medical Association is “very strongly controlled

directly by the state” then does not imply absolutely clearly a need for

decisive differentiation (in relation to the Czech Medical Chamber),

and the same is also true with respect to the statement that the Czech

Medical Chamber, in its actual operation, “at present effectively

resembles a trade union”, i.e. “an association of private law”, since

decisive characteristics of, to the contrary, an “institution of public

law” have been retained by the Chamber in any case, and the lack of

“private law” elements is also demonstrable (see clause 103) in relation

to its participation in tenders and negotiation procedures, possibly in

the arrangement of determining the ‘point value’, the amount of

reimbursement for medical care covered by health insurance, and

regulatory limits. As for the thoughts of the petitioners on the

“intentionally biased” exclusion of the “association of public law from

the concept of association as specified by Art. 11 of the Convention”,

it suffices to refer to clause 87 above, from which it is implied that,

in the cases of ‘professional chambers’ mentioned in Sections XI and XII

(“institutions of public law”), differentiation is objective, resting

on a legal basis which also applies – with respect to similar legal

definition – to the Czech Medical Chamber. The degree of their autonomy

in relation to the state, accentuated by the petitioners, does not

itself prevent such “differentiation”.

109. It is then of key

significance that when the bodies of the Convention inferred that

(these) institutions under evaluation are not associations as specified

by Art. 11 of the Convention and, therefore “an infringement of the

negative aspect of the freedom of association by obligatory membership

of the same could not have occurred”, it is also reasonable to apply

this conclusion to the institution comparable with them, this being – as

has been inferred – the Czech Medical Chamber. If then, as implied by

the conclusions stated under clause 65, there are no doubts that the

sense and scope of the term ‘association’ established in Art. 11 para. 1

of the Convention, and in Art. 20 para. 1 of the Charter are identical,

then it is logically true that the summary on exclusion of interference

in freedom of association also applies in relation to the negative

aspect of the same (the right “not to associate”), which is based on

Art. 20 para. 1 (possibly Art. 27 para. 1, 2) of the Charter to which

the petitioners referred.

110. When the freedom of association

(in its negative aspect) cannot be at all objectively affected by

obligatory membership of the Czech Medical Chamber, there is also no

room for continuing evaluation of the petitioners’ petition by the test

of proportionality, so as to verify whether it is not limited in a way

impermissible from the viewpoint of constitutional law, or whether there

existed or not any means “more sparing” to the given freedom.

111.

It is not improper to note here that the institute of obligatory

membership under § 3 para. 1 of Act No. 220/1991 Coll. is, under

comparable (European) circumstances, nothing exceptional (see Section IX

above); and that this institute is “logical” by organically ensuring

the competence of the Czech Medical Chamber towards the persons directly

addressed (physicians) by the very fact that the same are members of

the Chamber. The binding nature of norms, acts, and other measures by

the Chamber would be possible to achieve by means other than exclusively

through obligatory membership (see, for example, clause 59), but it is

essential that its establishment within the decisive conditions cannot

be at all linked to arbitrariness or capriciousness of the legislature.

112.

Obligatory membership of the Czech Medical Chamber under § 3 para. 1 of

Act No. 220/1991 Coll. is, therefore, not in conflict with Art. 20

para. 1 (Art. 27 para. 1, 2) of the Charter.
 


XV. On other objections of the petitioners
 

113.

Therefore, the dispute on the “suitability” of using the categories

‘member’ or ‘membership’ in Act No. 220/1991 Coll., administered on the

basis of comparison with Act No. 85/1996 Coll. on Advocacy, which uses

the term “registration on the list of attorneys at law maintained by the

Czech Bar Association” (§ 4), remains only theoretical (within a

necessary reflection on the result of the proceedings). It is not clear

which kind of a real (a contr. symbolic, formal, semantic,

psychological, etc.) change would be brought about by the corresponding

modification to Act No. 220/1991 Coll. For the purpose of a

constitutional law review (when obligatory “membership“ of the

professional chamber is not an expression of limits imposed on the

freedom of association) it is possible to state only that the comparison

of both legal arrangements does not imply the position of attorneys at

law towards the Czech Bar Association is contentually (at the level of

rights and obligations) different from that of physicians in their

relationship towards the Czech Medical Chamber. This conclusion cannot

be questioned even by the reference made by the petitioners to the

“actual operation” of the Czech Medical Chamber, or the objection that

“each member of the organisation is logically identified with the same,

and as such is displeased that they are associated with activities with

which they fundamentally disagree”, since there is apparently no

constitutional-law reflection included in the same.

114. The

thoughts of the petitioners that the same may be ensured (and more

suitably) not by way of the Czech Medical Chamber but via direct

exercise of administration by the state are unimportant, with respect to

the inferred non-existence of infringement of the constitutionally

guaranteed freedom of association, because they only reflect political

issues (the election of this or that concept of administration), the

evaluation of which is, due to the nature of the matter, not appropriate

for the Constitutional Court. It is merely noted here that in clause

52, in accordance with the petitioners, it is acknowledged that direct

constitutional law support for professional self-government “is faint”,

however, that “favourable evaluative tendencies, in particular in

relation to the state administration confronted by the petitioners”, are

perceivable.

115. The need for differentiating between “private”

physicians and “physicians as employees” (in the form of consent to the

opinion of the Czech Medical and Social Service Workers Union), as was

stated by the petitioners, was commented on by the European Commission

of Human Rights in a decision dated 8 July 1992 in the case of Vialas

Simón v. Spain (clause 72 above), and there is no reason to oppose the

opinion pronounced by the Commission (that the difference is not crucial

when it comes to the relations under consideration).

116.

References by the petitioners to “more recent case law” of the European

Court of Human Rights have been – as for the judgment in the case of

Chassagnou and others v. France, dated 29 April 1999 – taken into

account in clauses 86 and 97 above, with the result that it is not

possible to infer any effective support for their opinions therefrom. In

a judgment dated 13 August 1981 in the case of Young, James and

Webster, Applications Nos. 7601/76, 7806/77, para. 57, the Court stated

that the protection of personal belief provided by Art. 9 and 10 of the

Convention in the form of (guaranteeing) freedom of thought, conscience,

and religion, and freedom of expression, is one of the purposes of the

freedom of association under Art. 11 of the Convention, and an

enforcement of a person against their will to be a member of an

association thus assaults the very nature of Art. 11 of the Convention.

However, the point in this instance was membership of trade unions, i.e.

associations as specified by Art. 11 of the Convention. Similarly, the

European Court of Human Rights in its judgment dated 30 June 1993, in

the case of Sigurdur A. Sigurjónsson v. Iceland, Application No.

16130/90, evaluated in this way opinions presented by representatives of

the Frami association (para. 37), but also only after they had declared

that the association in question falls under Art. 11 of the Convention

(para. 32). The criticised regulation of Act No. 220/1991 Coll. does not

limit in any way the possibility of establishing “true” associations as

specified by Art. 20 para. 1, Art. 27 para. 1, 2 of the Charter.

117.

The statement that obligatory membership of the Czech Medical Chamber

is also an infringement of the right established by Art. 26 para. 1 of

the Charter, according to which everyone has the right to free choice of

profession, is also invalid. When it was inferred that freedom of

association as specified by Art. 20 of the Charter (in its “negative

aspect”) is not aggrieved by obligatory membership, then logically the

statement, which is contrarily based on “aggrieving” such freedom,

necessarily cannot stand. Therefore, it is not true, as the petitioners

state, that the right to free exercise of medical profession is

aggrieved due to the fact that those wishing to exercise such a

profession must surrender the freedom of association, since there is no

such right. Constitutional law conformity of other statutory

preconditions for the exercise of the medical profession (§ 4 of Act No.

220/1991 Coll.) apparently cannot be doubted by referring to Art. 26 of

the Charter, something even the petitioners did not do.

118. In

the cases when membership of associations as specified by Art. 11 of

the Convention is not under evaluation, there is no scope for

deliberating on the infringement of the negative aspect of the freedom

of association. This is documented by the decision-making practice of

the bodies of the Convention, for example, in a decision on

admissibility dated 8 September 1989 in the case of Revert and

Legallais, Applications Nos. 14331/88 and 14332/88, in which the

European Commission of Human Rights declared that the petitioners may

freely express their personal opinions in “another manner”. In a

decision dated 12 April 1991 in the case of Halfon v. United Kingdom,

Application No. 16501/90, the Commission did not accept as relevant

objections relating to political activities of the Exeter College

Students’ Union associated with the National Union of Students.

119.

Similar aspects can also be applied in relation to an apparently

determining motive that led the petitioners to disapprove of obligatory

membership, which they identify with resolute antagonism towards the

public and political activities of the Czech Medical Chamber, as they

described in detail (see clauses 10 and 40 above) and documented,

amongst other items, by the issues of the Tempus medicorum journal

submitted. Furthermore, here the petitioners must be reminded of the

fact that when freedom of association as specified by Art. 20 of the

Charter is not “the issue”, an effective framework of constitutional law

is missing for favourable evaluation of their criticism. The activities

of a professional chamber, as a bearer of public power, may objectively

give rise to an infringement of such fundamental rights and basic

freedoms which are protected by sources of the constitutional order, but

the response to this may be only the establishment of an adequate legal

(judicial) framework for such necessary protection, not exclusion of

persons endangered by such an infringement from the competency of such a

body. Besides, the petitioners – in addition to an inapplicable

reference to Art. 20 of the Charter – did not claim any infringement of

fundamental rights and basic freedoms; the statement that (some) members

of the Chamber “are displeased” with being associated with activities

with which they “fundamentally” disagree and consider them “an assault

on their own interests”, naturally does not imply such an infringement.

The petitioners also disregarded that the outwardly presented “will”

(including “political opinions”) of the Czech Medical Chamber against

which they protest are a manifestation of established institutional

mechanisms, in particular the bodies of the Chamber and their

representatives, the constitutionality (democratic nature) of which they

did not doubt, and whose functioning and socio-political actions are,

therefore, objectively participated in by all “obligatory” members

(physicians); thus necessarily also those who at present do not agree

with the public expressions of the Chamber. It is then possible to

proceed from the fact that the current public image of the Czech Medical

Chamber reflects the will of their members, or (all) physicians,

dominant at the given moment, which may also be expressed in such a way

that the Chamber exists in such a form that the physicians wish, or

possibly such a form as they “permitted”. The fact that the situation

against which the petitioners protest is not a direct manifestation of a

legal regulation of the Czech Medical Chamber is obvious (including

regulation of obligatory membership), which the petitioners themselves

also demonstrate by not proposing that obligatory membership of the

Czech Dental Chamber and the Czech Pharmaceutical Chamber (governed by

the same provisions of § 3 of Act No. 220/1991 Coll.) be annulled. These

arguments are definitely not relevant from the viewpoint of

constitutional law.
 


XVI.
Conclusion
 

120.

On the basis of the above, the Constitutional Court has concluded that

the petition for annulment of the contested provisions of § 3 para. 1 of

Act No. 220/1991 Coll. is not justified and, therefore, under § 70

para. 2 of the Act on the Constitutional Court, the petition was denied.

Note: Decisions of the Constitutional Court cannot be appealed.
 
 




Dissenting Opinion of Justice Eliška Wagnerová

I

do not agree with the verdict of the Judgment whereby the petition for

annulment of § 3 para. 1 of Act No. 220/1991 Coll. was denied; I also do

not agree with the reasoning of the Judgment.

From the Judgment

it is clear that the contested provisions were examined merely from the

viewpoint of whether or not the same were in conflict with the

constitutional expression of professional self-government, which the

Judgment, in accordance with doctrine, identified with Art. 21 para. 1

of the Charter and with the Preamble of the Charter (clause 21).

Additionally,

the Judgment (Section VIII) infers that the determining aspect for the

organisation of supervision over the exercise of medical profession is

the protection of public health. Within the limits outlined, the

legislature has allegedly a host of options for creating a system which

would ensure accomplishment of a constitutionally established objective

(Art. 6 para. 1 of the Charter – right to life, and Art. 31 of the

Charter – right to protection of health). The Judgment, on the contrary,

does not mention the fact that the legislature, in creating any system,

must respect additional fundamental rights, and if the same must be

restricted in order to achieve the objective pursued, then the

restriction of the fundamental rights adopted by the legislature must

succeed in the test of proportionality. The Judgment errs when it

evaluates the institute of obligatory membership of professional

self-government only in such an isolated manner and outside other

conjunctions.

Furthermore, the Judgment wordily and repeatedly

argues that membership of the Czech Medical Chamber is not subject to

conditions resulting from the freedom of association, since the Chamber

is a public law corporation, or a professional self-governing body, to

which the state passed the power the state otherwise should and would

have to exercise itself. This aspect of the matter is naturally very

clear and was probably neglected only a result of tardiness or a lack of

information on the part of the petitioners.

On the other hand,

this very aspect (i. e. the fact that transfer of state power is

involved) went unnoticed by the Judgment. The Constitutional Court has

not dealt exhaustively with the issue to which extent the state may

transfer its power to other entities, or at least the Constitutional

Court has not presented its opinion whether or not such a transfer

requires constitutional authorisation and why. Moreover, the

Constitutional Court has not determined limits for such a transfer of

state power, even though it is obvious that the state cannot be

completely deplenished. It is certain that in the case of the ordinary

course of events, the exercise of state power is subject not only to

judicial control, to which some decisions of the Chamber are subject,

but also – and especially – the exercise of state power is subject to

control within the scope of constitutional responsibilities of the

mutual individual powers, in which the acts of the executive are granted

legitimacy through an elected parliament, from which the executive, and

actually its very existence, is derived. Thus, the exercise of state

power is subject to multiplied control within the scope of

constitutional processes, and such control is complemented by another

executed by judicial power. The transfer of the exercise of state power

also means “de-parliamentarisation”, this meaning that the process of a

clash of interests is devolved exclusively to the field of the

executive, with parliament being left aside. Should this tendency

advance, a transmission could gradually take place from a

constitutionally ordered parliamentary political system which is

associated with the requirement of the democratic legitimacy of bodies

of the state endowed with certain power, to another, constitutionally

not defined political system, i.e. neo-corportism (in the given case)

governed by other principles (see also Judgment Pl. ÚS 52/03, N 152/35

SbNU 117).

Additionally, I believe that the contested provisions

should have been examined from the viewpoint of whether it

improportionally limits the fundamental right to the general freedom of

persons exercising the medical profession or, at least, a part of the

same. Generally speaking, this right forms the basis and a fixed point

to which the entire remaining order of explicitly enumerated additional

fundamental rights and basic freedoms is related. This right may be

derived from the requirement of a law-based state, based on respect for

the rights and freedoms of a person (Art. 1 para. 1 of the Constitution

of the Czech Republic), i.e. a state built on the idea of prevalence of a

free individual over the state (such as I. ÚS 643/06, I. ÚS 2254/07,

IV. ÚS 359/05, I. ÚS 557/05). Naturally, this freedom has social bonds

and is exercised by responsible persons. This concept of an individual

and the state is also shared by other European democratic states (e.g.

P. Unruh Der Verfassungsbegriff des Grundgesetzes, Mohr Siebeck,

Tübingen, 2002, pp. 532-541).

In the case under consideration,

the specific issue is that the requirement for obligatory membership of

the Chamber is not limited only to physicians exercising their

profession as freelance occupation, but is required also of those

physicians who exercise their profession as employees. The latter group

of physicians is controlled, and in the case of a lapse also punished,

by an employer which is also liable for the exercise of their work, as

well as by the Chamber. Therefore, this group of physicians faces an

imbalance in position in contrast with their professional colleagues who

exercise a profession as a “freelance occupation” and is, in my

opinion, improportionally restricted in the exercise of their general

freedom. The legitimate objective attempted by obligatory membership of

the Chamber, may be, with respect to this group, attained through

labour-law regulation. Any other regulation, in my opinion,

improportionally lessens the breadth of freedom of this group of

physicians. When the Judgment refers to the decision of the European

Commission of Human Rights in the case of Vialas Simón v. Spain, it

cannot be neglected that this European body had no reason to deal with

the case beyond and above the review of possible violation merely of the

right of association, i.e. the right which is acknowledged by and

contained in the Convention, but the Court did not review a possible

infringement of other fundamental rights which the Convention (unlike

national constitutions) does not acknowledge and contain. In addition to

this, it is clear that in order to evaluate the relevance of this

decision for its utilisation as a comparative argument, it would be

necessary to be familiar with Spanish labour-law regulation, with which

most of those who voted in favour of the Judgment have not acquainted

themselves.

Besides, historically speaking, it was the very

nature of a profession as a “free occupation” which gave rise to

chambers. It was not desirable that the issues supremely expert be dealt

with by the state, which could pollute its decisions with ideas other

than expert ones. However, the exercise of certain professions was

nevertheless necessary to control since it was related to a potential

detriment to or infringement of the rights of third persons. Thus also

the Judgment with which I do not agree contains a reference to Judgment

I. ÚS 181/01 that states: “this is an issue relating to the

‘special-interest self-government’, specifically professional chambers

with obligatory membership, associating self-employed natural persons

exercising certain professions, where there is a strong public interest

in the proper exercise thereof.” The above-quoted Judgment thus, in the

issue of evaluation of ‘special-interest self-government’, also allowed

for the free exercise of profession, not the exercise of profession

under labour-law conditions as an employee.

The legitimate

objective of the Chamber outlined above is made problematic by

obligatory membership of all physicians of the same, in addition to the

combination with broad and varied obligations and authorisations of the

Chamber (§ 2 para. 1, 2 of the contested Act) which partly overlap, in

terms of purpose, with the functions of trade unions. The Chamber thus

represents, in fact, a socio-liberal corporation which acts (or may act)

on behalf of the “medical class” or a “guild” in negotiations with the

state, concerning its interests in the area of economic, social, fiscal

(and other) policies. Therefore, the Chamber is a political body from

the very nature of the matter, representing the whole medical class, and

additionally endowed with considerable power. The concentration of

power in the form of broad authorities and obligations in the hands of a

so conceived Chamber does not provide, be it only from the viewpoint of

the selected model itself, a sufficient guarantee for protection of and

respect to the interests and the fundamental rights of patients. By

approving the constitutionality of obligatory membership of all

physicians of the Chamber, the Constitutional Court implicitly made its

position even stronger.