2008/09/23 - Pl. ÚS 1/08: Stabilization of Public Budget - Health Care Fees

23 September 2008

HEADNOTES

In

deciding, the Constitutional Court could not overlook the fact that the

part of the contested Act that is adjudicated in this proceeding is an

integral content component of the stabilization of public budgets. In

this regard it focused its attention on the principle of restraint and

minimizing interference and on the question of the Constitutional

Court’s authority to make a cassation decision. Similarly as in

judgments file no. Pl. ÚS 24/07 and file no. Pl. ÚS 2/08 (promulgated as

no. 166/2008 Coll.), the Court believes that, even if it finds

sufficient grounds to deny the petition after merely finding the answers

to this circle of questions, it is appropriate not to decide, citing

grounds of procedural economy, without performing a rationality test,

i.e., considering – even if in terms of the optical viewpoint and the

structure of the judgment’s reasoning – the seemingly closing, but from a

juristic viewpoint undoubtedly primary substantive question  – whether

the contested legal framework violates any provision of the Constitution

or of the Charter, or whether it interfered in any right protected by

the Charter. Thus, this means restraint and minimization of

interference, the rationality test, or the consistency of the contested

legal regulation with the provisions of the Constitution or of the

Charter.

The

Constitutional Court of course also took into consideration that reform

of the health care system in this phase has not yet been finished, and

that Minister of Health Tomáš Julínek, as a witness, testified that

other related bills will be prepared in the near future. The

Constitutional Court now adds that if it acted in too activist a manner

in relation to any reform, including reform of health care, it would

certainly create case law that would a priori close the door on any

reform attempts. The Constitutional Court also takes into account the

fact that the effects of reform cannot be evaluated until after the

mechanisms created can begin to function, and adds that, in terms of

evaluating the constitutionality of the contested provisions, it has

authority only to decide on the fundamental principles, not on a

particular factual situation.

It

will be the obligation of the legislature, after analyzing the effect

of regulatory fees, to evaluate for every individual fee whether it does

not affect the existence or exercise of a right arising from Art. 31 of

the Charter, whether it pursues a legitimate aim, and whether a

particular fee is a reasonable means to achieving that aim, also

together with evaluating the effects on the ability [to pay] of various

groups of payers of regulatory fees in connection with rights to

financial or other material profits established by statues from other

areas of law than statutes implementing Art. 31 of the Charter. The

legislature must then make decisions based on this evaluation, including

possibly derogatory (or amending) ones. However, the existing review of

a statutory regulation permits the Court to base its reasoning only on

abstract constitutional law arguments, not on the actual effects of a

statute, which it is not possible to determine individually in

proceedings before the Constitutional Court.
If the petitioners, as

representatives of the legislative branch, believe that the legal

regulation they contest is inappropriate or has negative consequences,

they can seek change within political competition, not within judicial

review of constitutionality, which, by definition, must be limited only

to questions of a constitutional law nature. If the Constitutional Court

were to grant the petition and decide itself, instead of the

legislature, it would violate not only the cited provisions of the

Constitution of the CR, but it would make the competition of political

parties unnecessary (see Judgment Pl. ÚS 2/08).

Realizing

that “in contrast to legal science … or practical dogmatics, other

fields that concern themselves with law, without considering practical

aims, such as legal history, comparative law, and legal philosophy, are

of a supporting nature” (cf. L. Heyrovský, Dějiny a systém soukromého

práva římského [History and System of Private Roman Law], VI. edition ,

Bratislava 1927, pp. 9-10), the Constitutional Court, first looked from

the perspective of these disciplines at the circumstances in which the

right to protection of health and provision of health care were

formulated, under which it is, was, or was not introduced in the

constitutional order in the developed European States, and finally how

it was in reality applied in the practice of the Czech lands, and how

the organization of health care developed. These are substantial grounds

which give rise to what the unique features of social rights will be,

as summarized in the judgment.

Before

proceeding to the reasonableness test, the Constitutional Court

considered the nature of social rights and their different nature, given

by Article 41 par. 1 of the Charter. Analogously as in judgment file

no. Pl. ÚS 2/08, it states that these rights “are not unconditional in

nature, and they can be claimed only within the confines of the laws

(Art. 41 par. 1 of the Charter) …. Within these bounds the legislature

has a relatively wide ability to regulate the implementation of

individual social rights, including the possibility to amend them.”

For

the foregoing reason, the Constitutional Court concluded that the

reasonableness test in the case of social law is methodically different

from a test that evaluates proportionality with fundamental rights,

“because social-economic aspects play a much greater role here.” The

rationality test, especially in a situation where the Constitutional

Court concluded that a judgment [sic – petition?] could be denied for

reasons of maintaining restraint, has a more orientational and

supportive role here.

In

combination with the requirements arising from Art. 4 par. 4 of the

Charter we can describe 4 steps leading to a conclusion that a statute

implementing constitutionally guaranteed social rights is or is not

constitutional:
1) defining the significance and essence of the

social right, that is a certain essential content. In the presently

adjudicated matter, this core of a social right arises from Art. 31 of

the Charter in the context of Art. 4 par. 4 of the Charter.
2)

evaluating whether the statute does not affect the very existence of the

social right or its actual implementation (essential content). If it

does not affect the essential content of the social right, then
3)

evaluating whether the statutory framework pursues a legitimate aim;

i.e. whether it does not arbitrarily fundamentally lower the overall

standard of fundamental rights, and, finally
4) weighing the question

of whether the statutory means used to achieve it is reasonable

(rational), even if not necessarily the best, most suitable, most

effective, or wisest.

Only

if it is determined in step 2) that the content of the statute

interferes in the essential content of a fundamental right should the

proportionality test be applied; it would evaluate whether the

interference in the essential content of the right is based on the

absolutely exceptional current situation, which would justify such

interference .

Thus,

it follows from the nature of social rights that the legislature cannot

deny their existence and implementation, although it otherwise has wide

scope for discretion.

The

essential content (core) of Art. 31, second sentence of the Charter is

the constitutional establishment of an obligatory system of public

health insurance, which collects and cumulates funds from individual

subjects (payers) in order to reallocate them based on the solidarity

principle and permit them to be drawn by the needy, the ill, and the

chronically ill. The constitutional guarantee based on which

payment-free health care is provided applies solely to the sum of thus

collected funds.

The

Constitutional Court considers it determined that the purpose of the

legislature’s original intentions concerning regulation was an emphasis

on such organization of the health care system as would ensure higher

quality actual implementation of Art. 31, first sentence of the Charter,

that is, the provision of health care at an adequate place and time and

of better quality.

As

indicated by the evidence presented, the fees introduced by the Act

regulate access to health care that is paid from public insurance,

whereby they limit excessive use of it; the consequence is to increase

the probability that health care will reach those who are really ill.

Thus, through the fees, the legitimate aim of the legislature is met,

without the means used appearing unreasonable.

Abstract

review of a statute cannot theoretically review and reliably rule out

all its imaginable effects in the personal sphere of the addressees of

norms. However, such possible individual interference can, of course,

still be corrected using standard procedures, including a constitutional

complaint.

According

to the contested Act, a “regulatory fee” is the income of a health care

facility. However, this provision cannot be interpreted out of the

context formed by the synallagmatically connected system of rights and

obligations of the three participating subjects, i.e. the patient, the

health care facility, and the health insurance company. Hypothetically

we can certainly imagine the alternative that the “regulatory fee” in

the same amount would be conceived as part of the insurance premium for

health insurance, and the place of payment would be the health insurance

company, which would subsequently, contractually or by law, increase

the payment to the relevant health care facility by the amount of this

insurance premium, which, incidentally, would not even have to be

collected as a collection debt. This model, which would not conflict

with linguistic interpretation of Art. 31 of the Charter, would,

however, have the same consequences for the patient as the existing

model, which is based on the principle that the payment is made directly

to the final recipient.

The

Constitutional Court did not find that regulatory fees have a generally

“strangling effect” and realistically make health care or health care

aids inaccessible for anybody. In concrete individual cases one can

proceed under § 16a par. 2 let. d) of the Act on Public Health

Insurance, under which the regulatory fee is not paid by an insured

person who presents a decision, notice, or confirmation, no more than 30

days old, issued by a body providing assistance in material need, about

the benefit payment that is provided to him under a special regulation.

We also cannot overlook the limit of CZK 5,000 specified by § 16a par. 1

of the Act on Public Health Insurance. In the context of relationships

based on internal solidarity, we cannot neglect to mention the

institutions of the mutual support obligation between parents and

children, the support obligation between other relatives, the support

obligation between spouses, alimony for a divorced spouse, a

contribution for the support and payment of certain expenses for an

unmarried mother under Part Three of Act no. 94/1963 Coll., on the

Family, as amended (the “Act on the Family”). Nor can we overlook the

provision of the Act on the Family on parental responsibility, or, 

e.g., the obligations of a child living in a common household with its

parents under § 31 par. 3 and 4 of the Act on the Family.

The

Constitutional Court is aware of the multi-functionality of a

regulatory fee, because, in addition to the regulatory element, there is

a utilitarian viewpoint, consisting of the fact that regulatory fees

help a health care facility, in addition to providing payment-free

health care, to function better, provide related services, or improve

personnel aspects and the level of the environment in which health care

is provided, and so on.

As

part of the reasonableness test, the Constitutional Court weighted

whether the principle expressed in Art. 4 of the Declaration of the

Rights of Man and of the Citizen in 1789, that “liberty consists in the

power to do anything that does not injure others,” applies to the area

of social rights, and concluded that formalistic insistence on

payment-free medicine for individuals using an expansive concept could

actually lead to lowering the level of payment-free medical care paid

out of public insurance, in the real sense of the word, for all members

of society.   

A

health care facility does not have a right under Art. 31 of the

Charter, that is held by the citizen, or the patient. A health care

facility is a health care provider, and a subject in the health care

system, which also fulfills organizational, economic, financial,

employer, scientific-research, educational, etc. functions. The fact

that a health care facility does not collect regulatory fees is a

transgression, the object of [making it one ] is the interest in the

functioning and protection of the health care system. A certain analogy

can be found, e.g. in the penalties imposed for violating the rules of

economic competition or in the regulation of consumer protection. In

these areas as well, a public law penalty is imposed for violation of

obligations that consist of unfair distortion of a private law

relationship. The consequences of not fulfilling the obligation to

collect regulatory fees can appear, e.g., in distortion of access to

health care facilities or a reduction in quality where a health care

facility that does not collect fees exceeds its patient capacity. The

Constitutional Court adds that it is up to the legislature, to choose

which subject it will give the power to impose a public law penalty, if

the penalty is imposed as the result of a proper administrative

proceeding and the imposition of a penalty is subject to judicial

review, which the contested legal regulation meets.

If

the Ministry of Health acted thus ultra vires and issued an

individualized decree that was not a generally binding legal regulation,

but a hidden individual administrative act, it would certainly be

appropriate to object to such a decree; however, the Constitutional

Court did not find the statutory authorization to be unconstitutional.

Of

course, in order to deny the petition it would have been independently

sufficient for the Constitutional Court to conclude either that, for

reasons of restraint and minimizing interference, there is no room for a

derogatory judgment, or that the contested legal regulation is not

unconstitutional, because in its opinion the contested legal regulation

was adopted within the framework set froth by Art. 4 par. 4 of the

Charter and it met the rationality test. Thus, theoretically the

Constitutional Court basically had to choose whether to choose for the

reasoning of its decision only one of the groups of reasons, or all of

them. After deciding, in the specific matter, which concerns the very

serious issues of life and health, for a more comprehensive approach,

and thus weighing reasons from all spheres, it adds that, among them, it

gives hierarchical priority, including within the intent of the

judgment in the matter file no. Pl. ÚS 24/07 and file no. Pl. ÚS 2/08 –

having in mind the interconnected content and unifying context of the

Act on Stabilization of Public Budgets and noting that the decision to

separate this matter and the matter conducted under file no. Pl. ÚS 2/08

was of a purely procedural nature – grounds that led it to restraint

and minimization of interference. The fact that the contested legal

regulation was not found to be unconstitutional and that it me the

reasonableness test leads to the conclusion that interference by the

Constitutional Court in analogous matters could come into consideration

only in case of flagrant caprice, arbitrariness and unreasonableness by

the legislature, which – as was repeatedly said and indicated – was not

found in this matter.



CZECH RWEPUBLIC

CONSTITUTIONAL COURT

JUDGMENT


IN THE NAME OF THE CZECH REPUIBLIC


The

Constitutional Court, consisting of Stanislav Balík (judge rapporteur),

František Duchoň, Vlasta Formánková, Vojen Güttler, Pavel Holländer,

Ivana Janů, Vladimír Kůrka, Dagmar Lastovecká, Jiří Mucha, Jan Musil,

Jiří Nykodým, Pavel Rychetský, Miloslav Výborný, Eliška Wagnerová and

Michaela Židlická, ruled on 20 May 2008 on a petition from 1) a group of

67 deputies of the Parliament of the Czech Republic, represented by

Deputy Mgr. Michal Hašek, and from 2) a group of 43 deputies of the

Parliament of the Czech Republic, represented by Deputy JUDr. Vojtěch

Filip, and from 3) a group of 19 senators of the Parliament of the Czech

Republic, represented by JUDr. Kateřina Šimáčková, attorney, with her

registered address at Mojžíšova 17, 612 00 Brno, seeking the annulment

of:
- points 3 and 4 in Article XVII in Part Ten (amending the Act on

Administrative Fees), Part Forty (amending the Act on Public Health

Insurance), Part Forty One (amending the Act on Premiums for General

Health Insurance), Part Forty Two (amending the Act on the General

Health Insurance Company of the Czech Republic), Part Forty Three

(amending the Act on Ministry, Department, Company, and Other Health

Insurance Companies), Part Forty Eight (amending the Act on Jurisdiction

of Bodies of the Czech Republic in the Area of Prices) and Party Forty

Nine (amending the Act on Prices) of Act no. 261/2007 Coll., or

individual provisions of the cited parts of Act no. 261/2007 Coll., on

Stabilization of Public Budgets,
- § 11 par. 1 let. g) to i), § 12

let. m), § 16a, § 16b, § 17 par. 5, in § 43 par. 2 in the first

sentence, the words “and paid regulatory fees under § 16a and

supplemental payments for partially reimbursed medical preparations and

foods for special medical purposes, which are included in the limit

under § 16b par. 1,” and in the second sentence, the words “including

paid regulatory fees under § 16a and supplemental payments for partially

reimbursed medical preparations and foods for special medical purposes

during that time,” § 53 par. 1 second sentence and at the end of the

text of the third sentence, the words “with the exception of deciding on

a refund of overpayment of insurance premiums, reducing deposits for

premiums, and reimbursing amounts under § 16b” of Act no. 48/1997 Coll.,

on Public Health Insurance, as amended by Act no. 261/2007 Coll.,
- §

5 let. f), in § 7 par. 1 let. a), the words “and for payment of amounts

exceeding the limit for regulatory fees and supplemental payments for

medical preparations and foods for special medical purposes, partly

reimbursed by public health insurance, or for payment of a portion of

those amounts in the event the insured party changes health insurance

companies, under conditions provided by a special regulation 1b)” of Act

no. 551/1991 Coll., on the General Health Insurance Company of the

Czech Republic, as amended by of Act no. 261/2007 Coll.,
- § 13 let.

f) and in § 17 par. 1 in the first sentence the words “and for payment

of amounts exceeding the limit for regulatory fees and supplemental

payments for medical preparations and foods for special medical

purposes, partly reimbursed by public health insurance, or for payment

of portions of those amounts in the event the insured party changes

health insurance companies, under conditions provided by a special

regulation 1b)” of Czech National Council Act no. 280/1992 Coll., on

Ministry, Department, Company, and Other Health Insurance Companies, as

amended by of Act no. 261/2007 Coll.,
with the participation of A)

the Chamber of Deputies of the Parliament of the Czech Republic and B)

the Senate of the Parliament of the Czech Republic, as parties to the

proceeding, and C) the group of 43 deputies of the Parliament of the

Czech Republic, represented by Deputy JUDr. Vojtěch Filip and D) the

group of 19 senators of the Parliament of the Czech Republic,

represented by JUDr. Kateřina Šimáčková, attorney, with her registered

address at Mojžíšova 17, 612 00 Brno, as secondary parties to the

proceeding, as follows:
 

The petition is denied.
 


REASONING


I.
Subject Matter of This Proceeding
 

1.

The group of 67 deputies of the Chamber of Deputies of the Parliament

of the Czech Republic, represented by Deputy Mgr. Michal Hašek, in its

petition, submitted to the Constitutional Court on 22 October 2007,

under Art. 87 par. 1 let. a) of the Constitution of the Czech Republic

(the “Constitution”), and under § 64 par. 1 let. b) of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations,

seeks the annulment of the entire Act no. 261/2007 Coll., on

Stabilization of Public Budgets, or of individual provisions specified

in the petition.
 

2. In

addition, the group of 67 deputies, in the same petition, sought the

annulment of certain provisions of these statutes, specified in the

petition, amended by Act no. 261/2007 Coll.:
- of Act no. 48/1997 Coll., on Public Health Insurance, as amended by later regulations,
- of Act no. 551/1991 Coll., on the General Health Insurance Company of the Czech Republic,    as amended by later regulations,
-

Czech National Council Act no. 280/1992 Coll., on Ministry, Department,

Company, and Other Health Insurance Companies, as amended by later

regulations,
- of Act no. 586/1992 Coll., on Income Taxes, as amended by later regulations.
 

3. The matter was initially conducted under file no. Pl. ÚS 24/07.
 

4.

The resolution of the plenum of the Constitutional Court of 8 January

2008 ref. no. Pl. ÚS 24/07-147 separated out for independent proceedings

the petitions for annulling those parts of Act no. 261/2007 Coll. and

possible related petitions that concern the independent issues of

financing health care from public health insurance and petitions for

annulling those parts of Act no. 261/2007 Coll., that concern the

independent issue of social security. Separate proceedings are being

conducted on these parts of the petitions under file nos. Pl. ÚS 1/08

and Pl. ÚS 2/08.
 

5. Thus an

independent proceeding is being conducted under file no Pl. ÚS 1/08 on

one of the separate sections, namely the petition to annul:
- points

3 and 4 in Article XVII in Part Ten (amending the Act on Administrative

Fees),  Part Forty (amending the ACT on Public Health Insurance), Part

Forty One (amending the Act on Insurance Premiums for General Health

Insurance), Part Forty Two (amending the Act on the General Health

Insurance Company of the Czech Republic), Part Forty Three (amending the

Act on Ministry, Department, Company, and Other Health Insurance

Companies), Party Forty Eight (amending the Act on Jurisdiction of

Bodies of the Czech Republic in the Area of Prices) and Party Forty Nine

(amending the Act on Prices) of Act no. 261/2007 Coll., or individual

provisions of the cited parts of Act no. 261/2007 Coll., on

Stabilization of Public Budgets,
- § 11 par. 1 let. g) to i), § 12

let. m), § 16a, § 16b, § 17 par. 5, in § 43 par. 2 in the first

sentence, the words “and paid regulatory fees under § 16a and

supplemental payments for partially reimbursed medical preparations and

foods for special medical purposes that are included in the limit under §

16b par. 1” and in the second sentence the words “including paid

regulatory fees under § 16a and supplemental payments for partially

reimbursed medical preparations and foods for special medical purposes

for that period,” § 53 par. 1 second sentence and at the end of the text

of the third sentence the words “with the exception of deciding on

refunding an overpayment of insurance premiums, reducing deposits for

insurance premiums, and paying amounts under § 16b” of Act no. 48/1997

Coll., on Public Health Insurance, as amended by of Act no. 261/2007

Coll.,
- § 5 let. f), in § 7 par. 1 let. a) the words “and for

payment of amounts exceeding the limit for regulatory fees and

supplemental payments for medical preparations and foods for special

medical purposes, partly reimbursed by public health insurance, or for

payment of a portion of those amounts in the event the insured party

changes health insurance companies, under conditions provided by a

special regulation 1b)” of Act no. 551/1991 Coll., on the General Health

Insurance Company of the Czech Republic, as amended by of Act no.

261/2007 Coll.,
- § 13 let. f) and in § 17 par. 1 in the first

sentence the words “and for payment of amounts exceeding the limit for

regulatory fees and supplemental payments for medical preparations and

foods for special medical purposes, partly reimbursed by public health

insurance, or for payment of portions of those amounts in the event the

insured party changes health insurance companies, under conditions

provided by a special regulation 1b)” of Czech National Council Act no.

280/1992 Coll., on Ministry, Department, Company, and Other Health

Insurance Companies, as amended by of Act no. 261/2007 Coll.
 


II.
Party and Secondary Party Status
 

6.

The party to this proceeding – the petitioner – is a group of 67

deputies of the Chamber of Deputies of the Parliament of the Czech

Republic, represented by Deputy Mgr. Michal Hašek. The Constitutional

Court found that the petition meets all statutory procedural

requirements and prerequisites, and thus nothing prevents reviewing and

ruling on the merits of the matter. Under § 69 par. 1 of the Act on the

Constitutional Court, 1) the Chamber of Deputies and 2) the Senate of

the Parliament of the Czech Republic are also parties to the proceeding.
 

7.

In the petition delivered to the Constitutional Court on 19 November

2007, a group of 43 deputies, represented by Deputy JUDr. Vojtěch Filip,

also sought annulment of Act no. 261/2007 Coll., or individual

provisions in it, specified in the petition. By its resolution of 23

November 2007, file no. Pl. ÚS 28/07, the Constitutional Court denied

that petition under § 43 par. 2 let. b) in connection with § 43 par. 1

let. e) of the Act on the Constitutional Court, on the grounds of the

obstacle of lis pendens. The Constitutional Court, under § 35 par. 2 of

the Act on the Constitutional Court, added this group of deputies as a

secondary party of the present, earlier proceeding on the petition from

the group of 67 deputies. The secondary party has the same rights and

obligations in the proceedings as the parties (§ 28 par. 2 of the Act on

the Constitutional Court).
 

8.

In a petition delivered to the Constitutional Court on 7 December 2007,

a group of 19 Senators of the Parliament of the Czech Republic,

represented by attorney JUDr. Kateřina Šimáčková, also sought annulment

of parts of Act no. 261/2007 Coll., specified in the petition. By its

resolution of 12 December 2007, file no. Pl. ÚS 29/07, the

Constitutional Court denied this petition under § 43 par. 2 let. b), in

connection with § 43 par. 1 let. e) of the Act on the Constitutional

Court on the grounds of the obstacle of lis pendens. The Constitutional

Court, under § 35 par. 2 of the Act on the Constitutional Court, added

this group of 19 Senators as a secondary party to the present, earlier

proceeding on the petition from the group of 67 deputies. The secondary

party has the same rights and obligations in the proceedings as the

parties (§ 28 par. 2 of the Act on the Constitutional Court).
 

9.

In a filing of 21 November 2007, titled “Announcement of the Municipal

Court in Brno of Entry into an Already Opened Proceeding as a Secondary

Party,” the Municipal Court in Brno sought to be treated as a secondary

party under § 35 par. 2 of the Act on the Constitutional Court, because

its previous petition, of 12 November 2007, had been denied by

Constitutional Court resolution file no. Pl. ÚS 27/07, of 21 November

2007, on the grounds of the obstacle of lis pendens.
 

10.

In its judgment file no. Pl. ÚS 24/07 of 31 January 2008 (promulgated

as no. 88/2008 Coll.), the Constitutional Court explained the reasons

why, after the plenum of the Constitutional Court issued its resolution

of 8 January 2008, ref. no. Pl. ÚS 24/07-147, the Municipal Court in

Brno could not be treated as a secondary party in the proceeding now

conducted under file no. Pl. ÚS 24/07. In the proceedings under file no.

Pl. ÚS 1/08, in addition to the grounds stated in the petition of 31

January 2008, file no. Pl. ÚS 24/07, there was the fact that the

petition from the Municipal Court in Brno concerns provisions of Art.

XLVIII, Party Thirty of Act no. 261/2007 Coll., which are not part of

the subject matter of this proceeding.



III.
Arguments

of the Petitioners and Secondary Parties Disputing Whether Act no.

261/2007 Coll. Was Passed and Issued in a Constitutionally Prescribed

Manner

III/a
Arguments of the Group of 67 Deputies of the

Parliament of the Czech Republic Disputing Whether Act no. 261/2007

Coll. Was Passed and Issued in a Constitutionally Prescribed Manner
 

11.

The group of 67 deputies of the Parliament of the Czech Republic,

represented by Deputy Mgr. Michal Hašek, seeks the annulment of the

entire Act no. 261/2007 Coll., on Stabilization of Public Budgets (“Act

no. 261/2007 Coll.”). The petitioners claim that the contested Act no.

261/2007 Coll. was passed in an unconstitutional manner and was thus

inconsistent with the constitutional order. They consider the grounds

for unconstitutionality to be violation of the principle of harmonious,

understandable and foreseeable law, violation of the principle of

separation of powers, and violation of the principle of democracy,

principles which are the attributes of a democratic, law-based state

under Art. 1 par. 1 of the Constitution. They point to the case law of

the Constitutional Court, which has already considered the

constitutional requirements on the legislative process in a number of

its decisions, in particular in judgments file no. Pl. ÚS 21/01

(promulgated as no. 95/2002 Coll.), Pl. ÚS 5/02 (promulgated as no.

476/2002 Coll.) and Pl. ÚS 77/06 (promulgated as no. 37/2007 Coll.), and

they emphasize that these requirements were violated when Act no.

261/2007 Coll. was passed.
 

12.

The petitioners’ specific criticisms, asserting that the constitutional

rules of the legislative process have been violated (setting aside for

now the arguments aimed against the conflict in content between specific

provisions of the Act with the constitutional order), can briefly be

summarized in the following claims:
1) The fundamental flaw in the

Act is the fact that one amending statute connected many amendments to

various law that are not directly related to each other, which violates

the principles of creating harmonious, foreseeable, and understandable

law, principles that are to be used to measure not only amending

proposals, but also draft statutes.
2) The link between the set of

norms – stabilization of public budgets – is too uncertain, comparable

to, e.g. an “Act on Changes in the Legal Order.”
3) The regulations

contained in many of the statutes in question do not concern the

stabilization of public budgets at all – e.g. establishing the bodies of

the General Health Insurance Company or a network of contractual health

care facilities. Therefore, for several reasons, on the formal side the

petitioners would accept only Parts One, Two, Three, Four, Five, Six,

Eight, partially Ten, Eleven, Thirteen, Fourteen, Twenty Three, and

Twenty Four of the contested Act.
4) The Act, in addition to

amendments of existing statutes, also contains three new statutes on

ecological taxes, which, among other things, violates the Legislative

Rules of the Government.
5) Through amending proposals, the so-called

“add-ons” became part of the Act, but they will not withstand

evaluation of the content and purpose of the original bill and the

amending proposals: a new system of prices for regulation of

medications, an Act on Accounting, and an Act on Prices. The amending

proposals can be criticized for allowing too little time for the

deputies to study them and for the public to be informed. This also

limited parliamentary discussion as a form of transparent government,

kept in check by the opposition and the public. The following are also

expressly considered “add-ons”: 1. in Part Four (Amendment of the Act on

Value Added Tax) in Art. VIII – points 1, 3, 4, 5, and 15 to 21; 2. in

Part Ten (Amendment of the Act on Administrative Fees) in Art. XVII –

points 3 and 4; 3. in Part Twenty Two (Amendment of the Act on

Organization and Administration of Social Security) in Art. XXXV –

points 1, 2, and 12; 4. in Part Twenty Four (Amendment of the Act on

Pension Insurance) in Art. XXXVIII – points 1, 2, 3, and 5; 5. in Part

Forty (Amendment of the Act on Public Health Insurance) in Art. LXIV –

points 1 to 9, 14 to 17, 24 to 26, 29, 30 and Art. LXV (Transitional

Provisions); 6. in Part Forty Eight (Amendment of the Jurisdiction of

Bodies of the Czech Republic in the Area of Prices) – Art. LXXV and

LXXVI; 7. in Party Forty Nine (Amendment of the Act on Prices) - Art.

LXXVII; 8. in Part Fifty (Amendment of the Act on Accounting) - Art.

LXXVIII. The petitioners point, in particular, to the requirement stated

by the Constitutional Court “… in order for an amending proposal to

really only amend the legal regulation being presented, i.e., in

accordance with the requirements of the rule of a close relationship,

according to which an amending proposal must concern the same subject

matter as the bill going through the legislative process, a given

amending proposal should not deviate from the limited space reserved to

amending proposals in the form of extensively exceeding the subject

matter of the bill being discussed.” The petitioners point to the

Constitutional Court’s opinion that failure to meet this requirement

leads “… to violation of the separation of powers, with consequences for

the principles of creating harmonious, understandable and foreseeable

law, which the Constitutional Court already connected to the attributes

of a democratic, law-based state; it also leads to circumventing the

institution of a legislative initiative under Art. 41 of the

Constitution of the CR and violation of the government’s right to

express its opinion on a bill under Art. 44 of the Constitution.”

(Judgment of the Constitutional Court, file no. Pl. ÚS 77/06,

promulgated as no. 37/2007 Coll., point 73).
6) The amending

proposals were not discussed in committees of the Chamber of Deputies,

and they have no justification. The Prime Minister, Mirek Topolánek,

submitted them, as a Deputy, based on coalition discussions, which,

however, cannot replace a decision by the government, as the bill’s

sponsor.
7) In the Senate, when a resolution was passed that expressed the will not to discuss the bill, the opposition was silenced.
8)

The legislative process failed to meet not only the requirements for

creating harmonious, foreseeable, and understandable law, but also the

requirement of being democratic. Art. 6 of the Constitution indicates

that the will of the majority should be behind every fundamental

political decision. As the Act in question is a collection of numerous

decisions, but intended for one final vote, the existence of a majority

could not be tested in a relevant manner.
9) The legislative power,

as the power to set forth the content of a statute, which belongs to

Parliament under Art. 15 of the Constitution, could not manifest itself,

and shifted to the government, or the prime minister. However, the

government could be strengthened legitimately only by a decision of

framers of the constitution, which did not take place.
10) The Act

became valid on the day it was promulgated; some provisions also went

into effect at that time. In view of the manner in which parts of the

Collection of Laws are distributed, persons affected by the statute were

thus meant to act in the newly-specified manner, but for at least two

days had no opportunity to familiarize themselves with it. This raises

the problem of actual retroactivity of the statute.
11) On the

technical side, this created gaps in the legal order, because if several

points set forth a regulation, with various dates when they go into

effect, the last point applies, under the principle lex posterior

derogat legi priori. However, that cancelled the rates of income tax for

the period beginning 1 January 2008.
12) The aim of the government

was to put Parliament under pressure, and in addition there is a short

period between the time between the new Act becoming valid and going

into effect.

13. The petitioners describe in detail the

legislative procedure followed in passing the contested Act, and

criticize many errors. They allege that, as early as the preparation

stage of the Act – at the latest at the point when the bill was approved

by the government – the bill was inconsistent in content, so even for

the legislators themselves, the bill was unforeseeable, surprising,

inaccessible, incomprehensible, and difficult to orient oneself in. The

time devoted to preparing such a complicated and extensive norm was too

short, and did not allow sufficient room for familiarizing oneself with

its content, thinking through all the connections, or for democratic

discussion.
 

14. Allegedly,

many unrelated amending proposals were raised in the legislative

process, some of them not until the closing phases of discussion in the

Chamber of Deputies, without proper justification. All that is claimed

to have had a negative effect on the opportunity for and quality of

parliamentary debate, and thus also on the opportunity for, and quality

of public discussion, the right of interest groups to have their opinion

heard, and ultimately also on keeping the public informed about

on-going political decisions.
 

15.

According to the petitioners, the violation of the principles of

separation of powers and democracy was reinforced by the fact that the

unrelated amending proposals came from government circles. The prime

minister (in the role of a deputy) substantially changed the government

bill several days before the final vote, without giving the deputies the

reasons for the new legal regulation, or time to study and discuss it,

let alone a realistic opportunity to submit further amending proposals.

The prime minister, or the government, with its extensive bureaucratic

apparatus, thus absolutely dominated the legislative assembly, which

does not even have sufficient expert resources to be able to present

effective counter-arguments to the surprising government proposal, under

the time pressure that was created. Thus, the influence of members of

the legislative assembly (both opposition and majority) on the exact

from of the Act was effectively minimized.
 

16.

The Senate of the Parliament of the Czech Republic, which is controlled

by the same political majority as the Chamber of Deputies, by

expressing its intent not to discuss the bill (Art. 48 of the

Constitution), made impossible debate in a plenary session of the

Senate; opposing views could then not be effectively heard either in the

Chamber of Deputies of in the Senate.
 

17.

The petitioners summarize that the proposing and passing of a de facto

governmental (more precisely, “prim ministerial”) amending proposal that

was not related in content to the proposed bill is inconsistent with

Art. 1 par. 1, Art. 2 par. 1, Art. 6 and Art. 15 par. 1 of the

Constitution, circumvents the institution of a legislative initiative

under Art. 41 of the Constitution, and also conflicts with Art. 44 par. 1

and Art. 76 of the Constitution. The fact that the Parliament did not

take into account the existing case law of the Constitutional Court,

which, moreover, was decided not long before the passage of Act no.

261/2007 Coll., also violated Art. 89 par. 2 of the Constitution.
 

18.

The petitioner states the opinion that the procedure chosen by the

government when discussing the contested Act, if it were accepted, could

lead to absurd consequences: “in the extreme case, the government

could, once a year, collect all is legislative aims into a draft Act ‘on

Amending Legal Relationships in the Czech Republic,’ or even an Act ‘on

Improving the Fate of the Citizens of the Czech Republic,’ and use

political pressure to force the governing majority to approve a bill in

that form. This would completely marginalize any actual influence the

deputies might have on the content of laws, and Parliament would become

virtually useless. The government would basically need Parliament only

to formally confirm the blanket statement of its will, and could make

any public parliamentary discussion impossible by having the majority in

the Chamber of Deputies refuse to allow other points on the agenda. A

parliament like that would be merely a façade, completely rejecting the

principles of democracy and the separation of powers.”
 

19.

Thus, the petitioners conclude that submitting and passing a government

bill that is extensive, inconsistent in content, and poorly organized

unclear is inconsistent with the preamble of the Constitution (which

expresses the intent of the citizens to be guided by all the time-tested

principles of a law-based state), as well as with Art. 1 par. 1, Art. 2

par. 1, Art. 6 and Art. 15 par. 1 of the Constitution.
 

20.

For these reasons, the proposed judgment in the petition from the group

of 67 deputies asks, first of all, that the Constitutional Court annul

Act no. 261/2007 Coll. in its entirety.
 

21.

If the Constitutional Court does not annul Act no. 261/2007 Coll. in

its entirety, then the group of 67 deputies proposes in its alternative

proposed judgment under point E) to annul those parts of this Act that

are not related to its basic subject matter, or to its purpose. In the

present proceeding, conducted under file no. Pl. ÚS 1/08, the following

parts of Act no. 261/2007 Coll. are proposed to be annulled:
- points 3 and 4 in Article XVIII in Part Ten (amending the Act on Administrative Fees),
- Part Forty (amending the Act on Public Health Insurance) – Articles LXIV and LXV,
- Part Forty One (amending the Act on Insurance for General Health Insurance),
- Part Forty Two (amending the Act on the General Health Insurance Company of the Czech Republic) – Article LXVIII,
- Part Forty Three (amending the Act on Ministry, Department, Company, and Other Health Insurance Companies) – Article LXIX
-

Part Forty Eight (amending the Act on Jurisdiction of Bodies of the

Czech Republic in the Area of Prices) – Articles LXXV and LXXVI, and
- Party Forty nine (amending the Act on Prices) – Article LXXVII
 

22.

The petitioner allege that all these parts of the Act are not related

to the subject matter and purpose of the Act, and passing them would

require the form of a special statute. The current legislative solution

is unclear and legislatively defective.
 

23.

If the Constitutional Court does not annul Act no. 261/2007 Coll. in

its entirety, or those parts of it that are proposed to be annulled in

the alternative proposed judgment under point E), then the group of 67

deputies proposes in an alternative proposed judgment, under point F),

to annul those parts of this Act that were introduced into it through

amending proposals and are in the nature of so-called “add-ons,” i.e.

they do not meet the criterion of a close relationship to the subject

matter of the statute, but are de facto an entirely different statute,

not related to the legislative proposal. In the present proceeding,

conducted under file no. Pl. ÚS 1/08, the following parts of Act no.

261/2007 Coll. are proposed to be annulled:
- in Part Ten (amending the Act on Administrative Fees), in Article XVII points 3 and 4
-

in Part Forty (amending the Act on Public Health Insurance) in Article

LXIV points 1 to 9, 14 to 17, 24 to 26, 29, 30 a and Article LXV

(Transitional Provisions)
- Part Forty Nine (amending the Act on Prices) – Article LXXVII.

III/b
Arguments

of the Group of 43 Deputies of the Parliament of the Czech Republic

Disputing Whether Act no. 261/2007 Coll. was Passed and Issued in a

Constitutionally Prescribed Manner
24. One of the alternatives in the

proposed judgment in the petition from the group of 43 deputies also

contains (like the petition from the group of 69 deputies) a request to

annul the entire Act no. 261/2007 Coll. due to constitutional law

defects in the legislative process. The arguments of the group of 43

deputies, in the part of the petition that alleges that Act no. 261/2007

Coll. was passed and issued in an unconstitutional manner, is in large

part the same as the arguments in the petition from the group of 67

deputies.
25. The petitioners criticize the passed Act for serious

legislative errors. They emphasize that the Act is not a standard

amendment or legal norm, but a collection of partial regulations that

are, on the one hand, amendments to dozens of statutes, and, on the

other, regulations that could be independent statutes. They are, for

example, changes in the area of tax regulation, including introduction

of “ecological” taxes, the legal framework for virtually all the social

systems, especially the system of state social support, minimum living

and subsistence standards, the health insurance system, the framework of

the pay structure for setting the salaries of constitutional officials

and state representatives, employment, and the legal framework of public

health insurance, premiums for that insurance, changes in the

jurisdiction of ministries, etc.
26. According to the petitioners,

the Act is unclear because, e.g., so many provisions of the amending

statute were annulled without any prior connection to the Act being

amended; for example, there was an amendment to Act no. 218/2007 Coll.

(amending the Act on Injury Insurance and amending other Acts) despite

the fact that Act no. 218/2007 Coll. had not yet gone into effect at the

time that Act no. 261/2007 Coll. was being discussed.
27. According

to the petitioners, discussion of the Act in the Chamber of Deputies was

affected by time pressure, and the deputies did not have enough time to

study such an extensive bill, which amended 46 legal norms. Moreover,

discussion was complicated by the many amending proposals, especially

that of Prime Minister Topolánek, which concerned eighteen existing

sections of the government bill and, in addition, expanded the

government bill by changes to another three statutes. The repeated

proposals from several opposition deputies to extend the deadline for

discussing the Act or returning it for further work were always denied.

The Senate, despite objections from the opposition, did not discuss the

bill.
28. The petitioners objected that the legislative process when

passing this Act was inconsistent with the Legislative Rules of the

Government (e.g., with Art. 2 par. 2, which requires taking care that a

legal regulation is in accordance with legal regulations of a higher

legal force and with judgments of the Constitutional Court, and becomes

an organic component of the entire legal order, and that it be conceived

in a well-organized manner and formulated unambiguously, understandably

and linguistically and stylistically correctly).
 

29.

In this case, the legislative process did not respect Constitutional

Court judgment file no. Pl. ÚS 77/06. The petitioners consider the

provisions on the management of the General Health Insurance Company,

supplementing regulation to the system of setting compensation and the

prices of medical preparations and foods for special medical purposes,

on regulation of medicine prices, introduction of so-called “ecological”

taxes, as well as the change of the legal regulation of virtually all

social systems, etc., to be “add-ons.”
 

30.

The petitioner concludes that the manner in which the Act was passed

and promulgated was unconstitutional, based on violation of the

prohibition on arbitrariness in the legislative process arising from

Art. 1 par. 1 and from Art. 2 par. 3 of the Constitution. It also

alleges violation of Art. 23 par. 3 of the Constitution, on a deputy’s

oath, and Art. 44 of the Constitution, on the powers of the government

in the discussion of bills.
 


III/c
Arguments

of the Group of 19 Senators of the Parliament of the Czech Republic,

Disputing Whether Certain Parts of Act no. 261/2007 Coll. Were Passed

and Issued in a Constitutionally Prescribed Manner
 

31.

The petitioners emphasize that their petition does not question whether

the content of the contested Act is consistent with the constitutional

order, but only the manner in which it was passed, which they consider

to be unconstitutional.
 

32.

The part of the petition which is concerned in this proceeding,

conducted under file no. Pl. ÚS 1/08, seeks the annulment of points 1 to

9, points 14 to 17, and points 24 to 30 of Article LXIV, and the entire

Article LXV of Party Forty (amending the Act on Public Health

Insurance) of Act no. 261/2007 Coll. and Party Forty Eight of Act no.

261/2007 Coll. (amending the Act on Jurisdiction of Bodies of the Czech

Republic in the Area of Prices), consisting of Art. LXXV and LXXVI, and

Party Forty Nine of Act no. 261/2007 Coll. (amending the Act on Prices),

consisting of Art. LXXVII.
 

33.

The objections are aimed, first of all, against the Senate’s decision

not to discuss the bill. In the petitioners’ opinion, this decision is

inconsistent with the Senate’s constitutional role and with § 63, § 101

and § 102 of the Act on the Rules of Procedure of the Senate. It is also

inconsistent with the current parliamentary practice and with the

purpose of that institution.
 

34.

The arguments of this group of 19 senators matches the arguments of the

group of 67 senators and of the group of 43 senators in those parts of

the petition where the legislative process is criticized for defects

consisting of “add-ons” contained in the supplemental proposals from

deputy Mirek Topolánek.
 

35.

Those parts of the Act that the group of senators proposes to be

annulled were, in the petitioners’ opinion, passed inconsistently with

the Constitution and with the statutorily prescribed legislative

procedure. Specific criticisms are violation of the principle of

understandability, good organization, and clarity of the legal order,

and the principle of respecting democratic principles in the legislative

process, violation of the prohibition of arbitrariness in the

legislative process, and violation of the principle of protecting

political minorities – i.e., violation of Art. 1, Art. 2 par. 3, Art. 6,

Art. 37 par. 2, Art. 41 and 44 of the Constitution, and Art. 2 par. 2

of the Charter of Fundamental Rights and Freedoms (the “Charter”).

Allegedly the institution of a legislative initiative under Art. 41 of

the Constitution was also circumvented, and the rights of senators under

Art. 46 and 48 of the Constitution were violated. Further, it is

claimed that several provisions of the Act on the Rules of Procedure of

the Chamber of Deputies and the Act on the Rules of Procedure of the

Senate were violated.
 

36.

The petitioners refer to several judgments of the Constitutional Court

that emphasize the importance of observing the constitutionally

prescribed manner of passing statutes, e.g., judgments file no. Pl. ÚS

33/97, Pl. ÚS 5/02, Pl. ÚS 21/01, and especially judgment Pl. ÚS 77/06.

The principles expressed in these judgments of the Constitutional Court

were allegedly not observed during the enacting of Act no. 261/2007

Coll. In the petitioners’ opinion, the last cited judgment of the

Constitutional Court also opened important questions before the Senate,

which is supposed to function, among other things, to insure

constitutionality and the quality of legislative activity.
 

37.

In the petitioners’ opinion, the process of enacting Act no. 261/2007

Coll. against accentuates the need to observe the principle “that the

parliamentary majority cannot do everything that the rules of procedure

do not expressly prohibit.” The petitioners express their hope that the

Constitutional Court’s decision will help cultivate the parliamentary

legislative process, and will set the limits of what is merely a

violation of the legal culture, and where violation of the rules of the

legislative process takes a form that is subject to constitutional

sanctions.
 


IV.
Arguments

of the Petitioners Disputing whether the Content of the Act is

Consistent with Constitutional Acts (as regards the Subject Matter of

the Proceeding in file no. Pl. ÚS 1/08)
 


IV./a
Arguments of the Group of 67 Deputies of the Parliament of the Czech Republic against the Content of the Act
 

38.

One of the alternative proposed judgments of the group of 67 senators

seeks, on the grounds of constitutional defects in content, the

annulment of:
- § 11 par. 1 let. g) to i), § 12 let. m), § 16a, §

16b, § 17 par. 5, in § 43 par. 2 in the first sentence, the words “and

paid regulatory fees under § 16a and supplemental payments for partially

reimbursed medical preparations and foods for special medical purposes,

which are included in the limit under § 16b par. 1,” and in the second

sentence, the words “including paid regulatory fees under § 16a and

supplemental payments for partially reimbursed medical preparations and

foods for special medical purposes for that period,” § 53 par. 1 second

sentence and at the end of the text of the third sentence, the words

“with the exception of deciding on a refund of overpayment of insurance

premiums, reducing deposits for premiums, and reimbursing amounts under §

16b” of Act no. 48/1997 Coll., on Public Health Insurance, as amended

by Act no. 261/2007 Coll.,
- § 5 let. f), in § 7 par. 1 let. a) the

words “and for payment of amounts exceeding the limit for regulatory

fees and supplemental payments for medical preparations and foods for

special medical purposes, partly reimbursed by public health insurance,

or for payment of a portion of those amounts in the event the insured

party changes health insurance companies, under conditions provided by a

special regulation 1b)” of Act no. 551/1991 Coll., on the General

Health Insurance Company of the Czech Republic, as amended by of Act no.

261/2007 Coll.,
- § 13 let. f) and in § 17 par. 1 in the first

sentence the words “and for payment of amounts exceeding the limit for

regulatory fees and supplemental payments for medical preparations and

foods for special medical purposes, partly reimbursed by public health

insurance, or for payment of portions of those amounts in the event the

insured party changes health insurance companies, under conditions

provided by a special regulation 1b)” of Czech National Council Act no.

280/1992 Coll., on Ministry, Department, Company, and Other Health

Insurance Companies, as amended by of Act no. 261/2007 Coll.,
 

39.

The petitioners analyze the unconstitutionality of the contested

provisions of the Act in detail in part IV. of the petition (Proposals

for the Annulment of Individual Provisions of the Act Due to

Inconsistency with Constitutionally Guaranteed Rights and Freedoms.)
 

40.

As regards regulatory fees in connection with the provision of health

care, the petitioners point primarily to Art. 31 of the Charter, Art. 12

of the International Covenant on Economic, Social and Cultural Rights

(no. 120/1976 Coll.) and Art. 11 of the European Social Charter (no.

14/2000) Coll.). They also point to the International Labour

Organisation Convention concerning Minimum Standards of Social Security

(no. 461/1991 Coll.).
 

41.

The petitioners emphasize that the contested provisions are sharply

inconsistent with Art. 31, second sentence of the Charter, because they

are based on the principle that all, even the most basic care, including

emergency care, should be paid directly by the citizen (insured party);

in contrast, the Charter assumes that payment-free health care paid

through public insurance must be insured for all citizens of the Czech

Republic (Art. 42 par. 1).
 

42.

The right to protection of health and the right to payment-free health

care under Art. 31 of the Charter, which are affected by the contested

provisions, are among the social rights that, according to the

petitioners, are binding on the legislature, although in a special

manner. The petitioners point out that social rights are enshrined in a

number of constitutions of European states in various extents, and that

they are also recognized by the German Federal Constitutional Court,

although they are not expressly enshrined in the Basic Law of Germany.

They point to the opinions of the constitutional scholar Robert Alexi,

particularly the argument concerning competencies, according to which

the parliament, which is the institution with primary democratic

authority, should decide on political matters with a massive impact on

the state budget. The petitioners conclude that the Charter guarantees a

minimum standard of social rights, and, pointing to Constitutional

Court judgment file no. Pl. ÚS 35/93 (no. 49/1994 Coll.), they

analogously state the belief that the core of the citizens’ right to

payment-free health care and to medical aids on the basis of public

insurance under Art. 31, second sentence, of the Charter is part of the

untouchable minimum standard of social rights which the legislature may

not reduce or violate.
 

43.

The petitioners express the opinion that the level of statutory

fulfillment of social rights above that minimal standard depends on the

specific context in time and place in which they are guaranteed. In

their opinion, the legislature is required to pursue a trend to

fulfillment of these rights in an ever greater degree, and regression is

justified only in the event of a credible and substantiated worsening

of these conditions. The petitioners conclude that, although, at least

in the last 10 years, the Czech Republic has demonstrated a consistently

increasing growth of well-being, this increasing wealth of the society

as a whole is allegedly accompanied by a retreat from the principles of

solidarity, between generations and between people. Thus, the

petitioners are not surprised that some citizens glorify the

totalitarian regime as a better guarantor of their social rights than

the present democratic, law-based state.
 

44.

In terms of linguistic analysis, the petitioners point to the meaning

of the terms “payment-free” “without payment,” “without paying”

“unpaid,” “to pay” and “to cover,” and emphasize that a systematic

interpretative method plays an important role in analyzing Art. 31,

second sentence, of the Charter. The petitioners emphatically claim

that, if basic health care is allowed to be burdened by fees, the

constitutional imperative for payment-free health care on the basis of

public insurance would become completely meaningless. Although Art. 31

of the Charter contains the phrase “under conditions provided for by

law” and the petitioners concede that this fact could, for example,

exclude above-standard health care from the payment-free regime (e.g.,

on the line between medical and cosmetic treatment) or “hotel services”

in a hospital stay, or, e.g., tie payment-free care to proper payment of

health insurance by the citizen, etc., health care that is basically

payment-free must be preserved. Certainly the phrase does not permit

setting up the health care system so that citizens who duly participate

in public insurance cannot receive even basic health care without having

to pay additional fees. The petitioners reject a conception under which

the Charter prevents imposing fees on health care stricto sensu, i.e.

only for health-restoring services and medical aids.
 

45.

Finally, the petitioners conclude that the amounts of the regulatory

fees introduced are intended to deter one from access to health care,

and point to Constitutional Court judgment file no. Pl. ÚS 35/95

(promulgated as no. 206/1996 Coll.).
 

46.

The petitioners find the contested provisions unconstitutional because

of the evident lack of clarity in regulatory fees, i.e. the question of

whether this is an institution of public or private law. They claim that

§ 16a par. 6 of Act 48/1997 Coll., as amended by of Act no. 261/2007

Coll., is inconsistent Art. 26 par. 1 of the Charter. According to the

petitioners, imposing penalties consisting of a fine of up to CZK 50,000

means that performance under private law receives a public law penalty.


 

47. The petitioners point

to the conflict of the contested provisions with medical ethics and the

Hippocratic oath, and conclude that the charitable activities of people

such as Albert Schweitzer, or the organization Doctors Without Borders

[Médecins sans frontières] would not be possible in the Czech Republic

without the risk of financial sanctions. With reference to the principle

ultra esse nemo tenetur, the petitioners question the possibility of

applying § 207 par. 2 of the Criminal Code. The petitioners also point

to conflict with Art. 3 par. 1 of the Charter, in connection with Art.

31 of the Charter, in the property context.
 

48.

Finally, the petitioners address the justification of a judgment of the

Constitutional Court of the Slovak Republic, file no. Pl. ÚS 38/03, of

17 May 2004, no. 396/2004 Coll., and point out that the Czech

Constitutional Court is not bound by this judgment.
 

49.

The petitioners then, expressly conceding that imposing fees on “hotel

services,” that is setting fees for accommodation and food in a

hospital, need not exceed the bounds of constitutionality, seek

annulment of the entire system of regulatory fees that the Act

introduces.
 

50. In part IV.

2. of the petition the petitioners protest against the manner of

payment for health care through a list of services assigned point

values, pointing to the fact that, as of 1 January 2008, negotiation

proceedings have been removed. They object to the fact that the legal

regulation mixes the forms of an individual and normative legal act will

decide and issue a decree). With reference to Constitutional Court

judgment file no. Pl. ÚS 36/05 (promulgated as no. 57/2007 Coll.) the

petitioners conclude that the factual situation is analogous.
 


IV./b
Arguments

of the Group of 43 Deputies of the Parliament of the Czech Republic and

the Group of 19 Senators of the Parliament of the Czech Republic

against the Content of the Act
 

51.

The group of 43 deputies of the Parliament of the Czech Republic,

basically in agreement with the petitioner, in the position of a

secondary party, does not raise significantly different arguments. This

group stresses that “these asocial proposals are raising the twelve

percent patient co-participation, which is already intolerably high for

many people, points to the UN Covenant on Economic, Social and Cultural

Rights of 1966, in force in the Czech Republic since 1976, and presumes

an increased administrative burden and the fact that, because of it,

doctors will have less time for their patients. The deputies in this

group also state that part of the population will experience a marked

decrease in living standards and health, that there will be deep

differentiation based on property, and increased poverty.
 

52. The group of 19 senators of the Parliament of the Czech Republic has no content-based objections to the Act.
 


V.
Briefs from the Parties to the Proceeding
 

53.

The Constitutional Court, pursuant to § 42 par. 4 and § 69 of the Act

on the Constitutional Court, sent the petition seeking annulment of the

contested provisions to the Chamber of Deputies and the Senate of the

Parliament of the Czech Republic.
 


V./a
Brief of the Chamber of Deputies of the Parliament of the Czech Republic
 

54. 

In its brief of 30 November 2007, signed by Chairman Miloslav Vlček,

the Chamber of Deputies of the Parliament of the Czech Republic

recapitulates the petitioners’ objections and disagrees with them.
 

55.

The petitioners allegedly incorrectly argue on the basis of

Constitutional Court judgment file no. Pl. ÚS 77/06 (concerning

so-called “add-ons”), chose an incorrect interpretation that expands it,

and applied the legal conclusions expressed by the Constitutional

Court, not only to the manner of submitting and adopting amending

proposals in Parliament, but also to the manner of drafting the bill

itself. The petitioners allegedly took advantage of the fact that the

reasoning of the cited Constitutional Court judgment “is so rich in

arguments that it offers fundamentally different interpretations of what

the Constitutional Court wanted to express.” The brief is of the

opinion that the cited Constitutional Court judgment must be interpreted

narrowly in the sense that it concerns “primarily the issue of amending

a submitted bill during the course of the legislative process, i.e. in

the chambers of Parliament.”
 

56.

The brief also disputes some other conclusions stated in Constitutional

Court judgment file no. Pl. ÚS 77/06 concerning the requirement that

law must be foreseeable, harmonious, and understandable, to which the

petitioners refer. Allegedly, if the Constitutional Court consistently

applied the opinions stated by it, “… then it would have to annul

statues until the legal order of the Czech Republic became accessible

even without the help of the legal information system, which, in the

current legislative situation, would not only be unrealistic, but would

seriously exceed the competence of the Constitutional Court. … If the

unforeseeability, internal conflict, and lack of clarity in a statute,

broadly understood, were to be grounds for the Constitutional Court to

annul it (as the violation of an imaginary, abstract “right to good

laws”), this would mean that we would conclude that the Constitutional

Court was competent to annul any law, without having to limit itself to

the text of specific provisions of the Constitution when seeking grounds

for the annulment. The Constitutional Court would thus at the same time

formulate the legislative policy of the state. However, setting policy

is a matter for a representative body elected by the people in

democratic elections, and answerable to the people for its activities.”

The Constitutional Court allegedly cannot be a “guarantor of the quality

of legal regulations” evaluated according to the criteria of

foreseeability, harmony and clear organization because that allegedly “…

conflicts with the constitutional definition of the court’s position.”
 

57.

The brief expresses disagreement with the petitioners’ claim that the

government bill and the Act itself are inconsistent in content. The

subject of the bill was determined “… by the government’s unifying aim

which, according to the explanatory report, was to optimize income for

the state budget which, at the same time, was supposed to support

economic growth and protection of the environment.” Allegedly, even the

amending proposals adopted in the third reading did not deviate from the

framework defined by the subject matter of the bill.
 

58.

The brief’s position also disagrees with the petition to annul

individual provisions of the contested Act or the amended Acts due to

their inconsistency with constitutional regulations. The subject matter

of this proceeding is touched on in the disagreement with the objections

about regulatory fees and setting coverage for health care through a

List of Services with Point Values. According to the brief, as regards

regulatory fees, “it is clear from the name of these fees that they are

not fees for health care, but ‘regulatory’ fees, the purpose of which is

to regulate and limit the misuse and purposeless consumption of medical

care. The aim is to improve this care as a result. Thus, medical care

remains payment-free under conditions provided by a special statute.”

The new legal regulation for the manner of setting health care fees

through the List of Services with Point Values, in accordance with

European Union law, assumes that payment for medical preparations will

come under the regime of individual decision through an administrative

proceeding. According to the brief, “the Act now logically also expects

that decision making will be analogously individualized in the area of

price regulation when deciding on the maximum prices for medical

preparations that are regulated by setting maximum prices. Thus, the

decision of an administrative body will be fully reviewable. The regime

of setting maximum prices is based on foreseeable and verifiable

criteria set forth in the Act.”
 

59.

In conclusion, the brief sets forth the summary position that the

Chamber of Deputies acted in the belief that the Act is consistent with

the Constitution, the constitutional order, and the legal order.
 


V./b
Brief from the Senate of the Parliament of the Czech Republic
 

60.

The Senate of the Parliament of the Czech Republic, represented by its

chairman, Přemysl Sobotka, in its brief of 28 November 2007, described

the process in which the Senate evaluated Act no. 261/2007 Coll.
 

61.

It stated that the bill approved by the Chamber of Deputies, after

being passed to the Senate was assigned to three committees for

discussion – the Committee for the Economy, Agriculture, and

Transportation (which acted as the guarantee committee), the Committee

for Local Development, Public Administration, and the Environment, and

the Committee for Health Care and Social Policy. All three committees

recommended approving the bill in the version passed on by the Chamber

of Deputies. The Senate discussed the bill at its 8th session on 19

September 2007. The brief states that the plenum of the Senate did not

conduct “classic” debate according to the Rules of Procedure of the

Senate. However, before a vote was held on a proposal that the Senate

not discuss the bill, several officials of the Senate and chairmen of

the party clubs exercised their right to priority in taking the floor (§

69 of the Act on the Rules of Procedure of the Senate).
 

62.

In the brief, the Chairman of the Senate states that at the Senate

session, just as before, in the Senate committees, there were opinions

that the bill represents and extensive, poorly organized legal norm that

is unique in our legal order. There was criticism of the procedure

whereby certain new parts were introduced into the bill during

discussion in the Chamber of Deputies; other objections were also

raised.
 

63. When, by

resolution no. 192 of 19 September 2007, a majority of the Senate

approved a motion expressing the intent not to discuss the bill, the

Senate allegedly acted in the belief that this norm is consistent with

the Constitution and with the Charter. Although the Act allegedly “at

first glance may seem like a set of unrelated, independent partial

amendments collected into one comprehensive statute,” nevertheless “it

contains the essential unifying idea … of stabilization of the public

budgets.” Such a procedure is allegedly not new in the Czech legislative

process; the same was done e.g., when establishing the regions (Act no.

132/2000 Coll.) or when terminating the activities of district offices

(Act no. 320/2002 Coll.). Through the prism of the bill’s unifying idea

the Senate also adopted a set of amending proposals (from deputies

Topolánek, Tluchoř and Rovan) adopted by the Chamber of Deputies.
 

64.

In relation to the amendment of the Act on Public Health Insurance and

the new legal framework regulating the prices and reimbursement of

medical preparations and foods for special medical purposes, the brief

stresses the interest in quickly establishing the new legal regulation,

also in view of the fact that the existing regulation was annulled by

Constitutional Court judgment Pl. ÚS 36/05, effective as of 31 December

2007. In the matter of regulatory fees “the majority of the Senate

stressed the idea that regulatory fees “are not of a public law

character” and the importance of their expected regulatory and financial

effect on stabilizing the health care sector.”  
 

65. The Senate leaves it to the Constitutional Court to evaluate the constitutionality of the adopted Act and make a decision.
 


V./c
Brief from the Ministry of Health, including Supplement
 

66.

On 27 December 2007 the Constitutional Court received (without having

requested it) a brief from the Ministry of Health of 19 December 2007,

signed by the Minister of Health, Tomáš Julínek. In it the Ministry of

Health states that, as the central state administrative body for health

care, required to respect the public interest, it is presenting an

amicus curiae brief concerning the petition from the group of deputies

and senators.
 

67. In its

brief, the Ministry of Health expresses the opinion that the legislative

process of adopting Act no. 261/2007 Coll. was in accordance with

constitutional regulations. The Ministry describes as off-base the

petitioners objections to Part Forty of Act no. 261/2007 Coll. (amending

the Act on Public Health Insurance), which consist of the fact that the

content of the new regulation contained in Part Forty are not related

to the basic topic, or the purpose of the Act, which is supposed to be

“stabilization of the public budgets.” On the contrary, the Ministry

claims that the new regulation for setting reimbursements and prices of

medical preparations has the same subject matter as the entire Act,

which supposedly has a clear “unifying idea,” i.e. “optimization of the

income to the state budget.” The Ministry of Health also claims that

objects raised to the procedure of submitting and adopting the amending

proposals of deputy Tluchoř (concerning the setting of reimbursements

and prices of medical preparations) also will not stand, because these

amending proposals were also related to the subject matter of the entire

Act.
 

68. The brief from the

Ministry of Health sharply disagrees with the submitted petition. The

Ministry is of the opinion that the petitioners are trying to use their

petition to implement their own political program, which did not find

sufficient support in Parliament. As regards the part of the petition

that proposes annulling regulatory fees for health care provided, the

Ministry of Health takes as its starting point the opinion that modern

legal science no longer sees the public law and private law spheres as

strictly and clearly separate; a number of legal relationships combine

private law and public law elements. In the system of public health

insurance and care provided on the basis of that insurance we can

distinguish four basic legal relationships. According to the Ministry of

Health, the legal relationship between the person paying premiums for

health insurance and the health insurance company, as the recipient of

the paid amounts for public health care, is a public law relationship.

As regards the relationship between the insured party and the health

insurance company, the Ministry takes the legal opinion that this is a

private law relationship with significant public law elements. The

Ministry of Health points out that the legal relationship between the

health insurance company and the health care provider was already

recognized by the Constitutional Court as clearly a private law

relationship, though with a higher degree of legal regulation, which is

usual in commercial law. In the opinion of the Ministry of Health, the

legal relationship between the patient and the health care provider is

prima facie a private law relationship, even though the public interest

is projected into it through not inconsiderable regulation by legal

regulations … Overall one can say, simplifying slightly, that public

health funds are funds of a public character until the moment of

reallocation, and therefore public law regulations (e.g., the

Administrative Procedure Code) also apply to them. From the moment of

reallocation, when the health insurance company receives in its account,

not the amount paid by the insured person, but the actual premium for

the insured person (allocation), the amount of which is determined

according to a reallocation key based on age and sex, they are funds of a

private law character.” Regulatory fees have a private law aspect, but

there is undoubtedly also a public law aspect, i.e., the purpose for

introducing them (optimizing the use of public health insurance funds)

and certain related institutions, e.g., a fine for not collecting

regulatory fees. This is an instrument whose primary purpose is to

optimize the allocation of funds within the system. According to the

brief from the Ministry of the Health, “the introduction of regulatory

fees is the first small step in a comprehensive reform of health care,

the aim of which is not to deny citizens’ rights under Art. 31 of the

Charter, but to ensure that it will be better implemented and fulfilled

in the long term. At present the seven substantive aims of the statutes

that are the pillars of this reform are in the stage of legislative

comment proceedings.
 

69.

The set of changes in health care implemented by the Act on

Stabilization of Public Finances is sufficiently complicated and

interconnected with other changes (e.g., ion the tax system), that no

single part of it can be annulled without the government getting an

opportunity to adopt changes in a different manner, pursuant to the

requirements of the Constitutional Court. The changes are so extensive

that many parties involved in health care (in particular, individual

health care service providers) have taken steps to implement particular

provisions (e.g., technical equipment for collecting regulatory fees).

It would not correspond to the principle of good administration (as

recognized by the Constitutional Court and legal science – cf. Principy

dobré správy, sborník příspěvků z konference [Principles of Good

Administration, Collection of Conference Papers, Masaryk University Brno

2006), if such steps were de facto penalized by subsequently being made

obsolete. The Ministry of Health also points to the particular danger

that “potential annulment of regulatory fees with immediate effect would

bring. The introduction of regulatory fees, as implemented by Part

Forty of Act no. 261/2007 Coll., “not only does not in any way restrict

the availability of essential care (the amount of fees is de facto

marginal, in terms of the consumption basket of a family with average,

but also considerably below average income), but, on the contrary,

removing certain inefficient expenses in the treatment process will

optimize allocation of the limited financial means from public health

insurance, which will unavoidably improve, not lower the availability of

health care.” Another important aspect that contributes to making the

institution of regulatory fees constitutionally consistent with Art. 31

of the Charter is the introduction of a limit on regulatory fees of CZK

5,000 per year. In view of the fact that this will include supplemental

payments for medical preparations, the introduction of this limit will

have markedly positive consequences for the not negligible group of

chronically ill patients who now pay supplemental fees often totaling

over CZK 10,000 per year, by increasing the availability and lowering

the financial burden of essential health care. The new regulations de

facto expands the material scope of health insurance by certain

regulatory fees and supplemental fees for medications paid over the

amount of CZK 5,000 per year. The limit thus strengthens solidarity

between the healthy and the ill in the Czech environment, which has

previously been insufficiently emphasized.” The Ministry of Health also

argues in favor of the opinion that making health care payment-free is

only one of the attributes of its availability and points out that the

European Social Security Code (no. 90/2001 Coll.) and other

international conventions clearly make it a the priority to ensure

material availability [of health care] for citizens regardless of social

status, not that it be formally payment-free. The evidentiary function

of regulatory fees, and especially of the limit/cap, is to support

ensuring the availability of health care for all citizens of the Czech

Republic. The Ministry of Health then recapitulates and evaluates the

development thus far of setting payments for health care through the

List of Services with Point Values. It point to the need to regulate the

setting of payments for medical preparations out of public health care

beginning 1 January 2008, because the existing legal framework was

annulled as of 1 [sic, 31?] December 2007 by Constitutional Court

judgment Pl. ÚS 36/05. The Ministry of Health concludes that the new

legal framework is fully consistent with the requirement of the European

Council’s Transparency Directive, no. 89/105/EHS, and of the

Constitutional Court, to set payments and prices for medical

preparations on the basis of clearly specified criteria, in a

transparent and predictable manner, with a possibility for judicial

review of the entire proceeding.
 

70.

On 19 February 2008 the Constitutional Court received a “Brief from the

Ministry of Health Regarding the Petition to Annul a Statute –

Supplement.[”] In this supplement the Ministry of Health recapitulates

the historical developments before the fees were introduced, and points

out that “since 1990 basically all governments tried to create a method

to introduce fees.” Beginning with the steps taken by ministers Pavel

Klener, Martin Bojar, Petr Lom, Luděk Rubáš, Jan Stráský, Josef Kubinyi,

Marie Součková, Milada Emmerová and David Rath. According to the

Ministry of Health, “the previous Minister of Health, David Rath, before

taking the office of minister, as president of the Medical Association,

he proposed introducing patient fees, at the same or higher level as is

provided now – 20 % of the price of outpatient services, CZK 50 for

emergency care, CZK 200 for a doctor’s house call, etc.”
 

71.

The Ministry of Health also presents a geographic comparison, including

tables of regulatory fees in Europe, specifically Austria, Ireland,

France, Germany, Switzerland, Norway, Sweden, Great Britain, Portugal,

Slovakia (previously and today), Hungary, Croatia, Bulgaria, Latvia and

Estonia. The table indicates that fees are zero in Spain, Italy (except

for hospitalization and specialist visits), Poland, Lithuania and

Romania.

72. The Ministry of Health also conducts “a comparison

with the entire system of law in health care,” points to the case law of

the Constitutional Court, in particular judgments file no. Pl. ÚS

35/95, Pl. ÚS 23/98 and Pl. ÚS 14/02 (promulgated as no. 207/2003

Coll.), and presents its interpretation of legal regulations and the

Constitutional Court’s case law in relation to Art. 31 of the Charter.

Finally, the Ministry analyzes the contested legal regulation provided

by § 16 and § 166 of Act no. 48/1997 Sb., as amended by later

regulations, with emphasis on the purpose of the regulation, presents

“the consideration de lege lata and the consideration de lege ferenda”

and concludes that “fundamental changes in the system can be introduced

progressively, both while respecting rights guaranteed by the

Constitution, and also in times of abundance.” If these changes were

conducted at a time of crisis, which insisting on the current framework

would undoubtedly lead to, it would cause instability. The present

regulation, and any regulation under consideration, does not cause any

instability. It proceeds from nervousness in the system and the

environment, through stability, to a particular development. Based on

conceptual studies, and respecting the considerations of de lege

ferenda, the reform tries to optimize the health care system within the

bounds of what is possible. The entrance gate to this optimization is

introducing fees.”
 


VI.
Petitioners; Responses to the Briefs
 

73.

On 18 December 2007, the petitioners – the group of 67 deputies – sent

their response, disagreeing with the briefs from the chairman of the

Chamber of Deputies and the chairman of the Senate. They point above all

to the fact that parties to proceedings before the Constitutional Court

are the chambers of Parliament, not their chairmen – they only

represent the chambers externally. According to the response, the

chairmen are not entitled to themselves create the will of the chamber

that they preside over, but they can only convey and express that will –

created according to the rules set forth by the Constitution and by

statute – to the outside. If the chairman of a chamber of Parliament

does not submit a draft brief of the party to the proceeding to the

house for approval, he can disclose to the Constitutional Court, by

virtue of his office, only factual and undisputed circumstances

concerning discussion of the bill. Evaluation of the approved statute

and the petition for the Constitutional Court to annul it beyond that

limit is not a relevant statement by the chamber, but only the personal

opinion of its chairman.
 

74.

The petitioners criticize the brief provided by the Chairman of the

Senate, Přemysl Sobotka, because in it the chairman interprets the

Senate’s position on the contested Act, although the Senate did not even

debate discuss it in a plenary session, because the Senate voted not to

discuss the bill.
 

75. The

petitioners also question the relevance of the brief from the chairman

of the House of Representatives, Miloslav Vlček, on the grounds that he

is one of the group of deputies that submitted the petition to annul Act

no. 261/2007 Coll. Thus, one and the same person is appearing on the

sides of two parties to the proceeding – the petitioner, and at the same

time, the body that issued the contested regulation. Thus, Miloslav

Vlček, as a deputy, claims that Act no. 261/2007 Coll. is

unconstitutional, whereas, as the chairman of the Chamber of Deputies,

he finds no procedural or content-based defects in the adopted Act.
 

76.

In their response, the petitioners dispute the brief from the chairman

of the Chamber of Deputies, which criticizes the petition to annul the

Act for “vague application of the principle of predictability of law.”

On the contrary, the petitioners claim that they raise objections of

violation of specific provisions of the Constitution, namely Art. 41 of

the Constitution (circumventing the legislative initiative), Art. 6 of

the Constitution (political decisions emerge from the will of the

majority manifested in free voting), Art. 15 of the Constitution (the

legislative power of the Parliament) and Art. 89 par. 2 of the

Constitution (enforceable decisions of the Constitutional Court are

generally binding).
 

77. The

petitioners do not agree with the fact that the brief from the chairman

of the Chamber of Deputies trivializes the technical legislative

principles contained in the Legislative Rules of the Government. They

note that this is highly surprising when it is the government, which

itself made the legislative rules, that is the proponent of the bill.

The petitioners are convinced that gross violation of these very

tradition and time-tested principles for the creation of laws can have

devastating effects on the level of legal certainty and thereby on the

constitutionally protected foundations of a law-based state.
 

78.

The petitioners also dispute the brief from the chairman of the Chamber

of Deputies as regards the nature of regulatory fees, and point to the

public information brochure in which the Ministry of Health advises

citizens “how to plan their ‘health budget’ and their expenses.”
 

79.

As regards Senate chairman’s brief, which defended the practice of

adopting comprehensive statues that collect a set of unrelated partial

legal regulations connected by an essential unifying idea by pointing to

similar statutes that were adopted in connection with the establishment

of regions (Acts no. 132/2000 Coll. and no. 320/2002 Coll.), the

response objects that these statutes differ by their markedly more

intensive thematic and teleological tightness, and are much more limited

in scope than Act no. 261/2007 Coll.
 

80.

On 17 January 2008, the petitioners – the group of 67 deputies – sent

the Constitutional Court their position on the brief from the Ministry

of Health of 19 December 2007, with which they fundamentally disagree.

The main part of this petitioners’ position disputes the arguments of

the Ministry of Health concerning regulatory fees in health care and

concerning the new regulation for setting coverage and prices of

medications. The petitioners dispute the opinion of the Ministry of

Health that “through their petition, the petitioners are trying to

implement their own political program, which did not find sufficient

support,” and assert that the petitioner does not seek implementation of

a political program before the Constitutional Court. The petitioners

disagree with the opinion that this is “a private law relationship with

significant public law elements”; in their opinion, the relationship is

of a public law character. The petitioners also disagree with the

opinions of the Ministry of Health concerning “optimization of

allocation of funds within the system,” they dispute the arguments on

the trend of aging of the population and its effect on the system and

scope of health care, disagree with the statement of the Ministry of

Health as regards interpretation of the provision on a penalty of CZK

50,000, the limit of CZK 5,000, interpretation of the relationship

between health care being payment-free and its availability, and,

finally, disagree with the arguments concerning the new regulation of

reimbursements and prices of medical preparations, formally and in terms

of content. The petitioners conclude that “if the government continues

to present its reform aims in such huge and incongruous bills, in the

opinion of the petitioners, the consequences will be fatal for the

harmony, good organization, and predictability of the law and legal

certainty in the Czech Republic.”
 

81.

Finally, on 7 March 2008, the petitioners sent a filing in which they

conclude that the resolution of 8 January 2008, file no. Pl. ÚS 24/07,

not only separated out this matter for independent treatment, but also

granted their “request for priority treatment of the matter on the

grounds of urgency.” They also address the so-called “add-ons” in

relation to the parts of the contested Act that are being discussed in

this proceeding. As regards their objections concerning legislative

procedure, according to the petitioners the judgment in the matter file

no. Pl. ÚS 24/07 does not present the obstacle of rei iudicatae for this

proceeding. Further, in relation to registration fees, the petitioners

conclude that calling the payment a “fee” is deceptive, and they

describe as “the height of absurdity” the legal regulation of the fine

that a health insurance company can impose on a health care facility

that did not collect the regulatory fee.
 


VII.
Evidentiary Material Obtained by the Constitutional Court from Public Sources
 

82.

As supporting documentation for its decision, the Constitutional Court

obtained stenographic records from sessions of the Chamber of Deputies,

the Senate, and their committees, as well as their resolutions and the

Chamber of Deputies publications freely available in the digital library

on the websites of the Chamber of Deputies and the Senate of the

Parliament of the Czech Republic, at www.psp.cz and www.senat.cz.
 


VIII.
Description of the Legislative Process of Adopting Act no. 261/2007 Coll.
 

83.

From the statements of both chambers of the Parliament of the Czech

Republic, attached annexes, and from documents available electronically,

the Constitutional Court determined the following:
- The government

presented the government bill to the Chamber of Deputies on 24 May 2007

(publication 222/0). The bill was distributed to the deputies on 25 May

2007. The organization committee of the Chamber of Deputies recommended

discussing the bill on 24 May 2007. It appointed Mgr. Bohuslav Sobotka

as reporter and proposed assigning the bill for discussion to three

committees: 1. the health care committee, 2. the social policy

committee, 3. the budget committee.
- The first reading took place on

6 and 7 June 2007 at the 15th session of the Chamber of Deputies. The

bill was assigned for discussion to the above-mentioned committees

(resolution no. 335).
- The Chamber of Deputies health care

committee discussed the bill on 20 June 2007, and adopted no resolution.

The social policy committee discussed the bill on 2 July 2007, and its

resolution recommended rejecting the bill. The budget committee

discussed the bill on 8 August 2007, and its resolution recommended

rejecting the bill.
- The bill went through the second reading in the

Chamber of Deputies in general and detailed discussion on 14 and 15

August 2007 at its 18th session. The amending proposals were processed

as publication 222/3, which was distributed on 16 August 2007.
- The

third reading in the Chamber of Deputies took place on 21 August 2007 at

the 18th session. The bill was adopted; out of 200 deputies present,

101 deputies voted to adopt it, and 99 votes were against.
- On 31

August 2007, the Chamber of Deputies passed the bill to the Senate as

publication 106/0. The Senate scheduled the publication for its 8th

session, and discussed it on 19 September 2007. In resolution no. 192

the Senate expressed its will not to discuss the bill.
- The Act was

delivered to the President of the Republic for signature on 25 September

2007, and the President signed it on 5 October 2007.
- The Act was promulgated on 16 October 2007 in the Collection of Laws, part 85, as number 261/2007 Coll.
 


IX.
Hearing before the Constitutional Court
 

84.

In the hearing before the Constitutional Court, held on 1 April 2008

and 16 April 2008, the parties to the proceeding and the secondary

parties maintained their positions, contained in their filing to the

Constitutional Court. The Constitutional Court heard as witnesses the

Prime Minister and Deputy ing. Mirek Topolánek, and the Minister of

Health, MUDr. Tomáš Julínek. In his testimony, Prime Minister and Deputy

ing. Mirek Topolánek spoke about the course of discussion of the

contested legal regulations in the Chamber of Deputies of the Parliament

of the CR and the amending proposal made to it, as well as the purpose

and aim with which the government approached the discussed part of

stabilization of the public budgets. Minister of Health MUDr. Tomáš

Julínek gave the same testimony as in the written amicus curiae brief

that he sent to the Constitutional Court, and explained the aims and

goals of the reform, the regulatory purpose of the regulatory fees, and

the financial effects of collecting these regulatory fees on the

financing of the health care system.
 


X.
Constitutionality of Competence and the Legislative Process
 

85.

The Constitutional Court already dealt with evaluating the

constitutionality of competence and the legislative process, in relation

to the objection that the statute was inconsistent, the Senate’s

decision not to discuss the bill was unconstitutional, and the objection

that the legislative rules of the government were violated, in a

proceeding which resulted in Constitutional Court judgment of 31 January

2008, file no. Pl. ÚS 24/07 (promulgated as no. 88/2008 Coll.).

Therefore, for the sake of brevity, as regards that proceeding and the

reasoning of that judgment, we can refer in full to parts X, X/a, X/b

and X/d of Constitutional Court judgment of 31 January 2008, file no.

Pl. ÚS 24/07.
 

86. The

Constitutional Court had the same starting points and reached the same

conclusion as in judgment file no. Pl. ÚS 24/07 of 31 January 2008, in

relation to the objections of “lack of a close relationship between the

amending proposals and the subject matter of the statute and the

exceeding of the statutory framework for submitting technical

legislative proposals in the third reading of a bill” (for more detail

see X/c of the reasoning in judgment file no. Pl. ÚS 24/07 of 31 January

2008). The Constitutional Court is of the opinion that this is not a

case of exceeding the framework outlined by the original draft of the

statute and including a circle of norms that are not related to reform

of public finances and the financing of health care. In judgment file

no. Pl. ÚS 56/05 of 27 March 2008 (at: usoud.judikatura.cz) the

Constitutional Court considered the issue of the “formal wording of a

legal regulation,” which would “mean the danger that the same regulation

would be adopted again, only with the difference that all requirements

of the legislative process would be observed.” In judgment file no. Pl.

ÚS 56/05 the Constitutional Court reached the conclusion that “in the

adjudicated matter the formal procedural aspects of review recede from

the point of view of the principle of proportionality to the

requirements of the principles of the material law-based state, legal

certainty, and effective protection of constitutionality.” In the

presently adjudicated matter the situation is similar; we cannot

overlook the fact that the petitioners and the secondary parties have no

reservations about the content of the contested statutory provisions,

the so-called “add-ons,” as a whole, and that their adoption was also

motivated by fear of periculi in mora beginning 1 January 2008.
 


XI.
Consistency of the Content of the Contested Statutory Provisions with the Constitutional Order
 

87.

As regards evaluation of whether the content of the contested statutory

provisions is consistent with the constitutional order, the petitioners

placed the Constitutional Court in a situation that is characterized by

the petitioners’ claim that although “requiring payment for ‘hotel

services,” i.e. setting fees for accommodation and food in a hospital

need not go beyond the bounds of constitutionality,” they nevertheless

seek “annulment” of the entire, newly-introduced system of regulatory

fees. Thus conceived, the filing leads to the fact that it contests both

provisions against which the petition presents constitutional law

arguments, and provisions against whose constitutionality, as presented

in the above-mentioned manner, not material or constitutional law

arguments are made. By arguing against the “newly introduced system or

regulatory fees as a whole,” the petitioners also contest provisions

whose application cannot interfere in rights guaranteed by the Charter,

because they do not impose any obligations on the bearers of those

rights, like, e.g., the contested § 16a par. 2 and 3 of the Act on

Public Health Insurance. These circumstances led the Constitutional

Court to review whether the content was consistent with the

constitutional order only of those contested provisions concerning “the

entire, newly-introduced system of regulatory fees” that, in terms of

content, logically and systematically come into consideration for

evaluation of constitutionality and regarding the unconstitutionality of

which the petitioners or secondary parties raise constitutional law

arguments in this regard. The merit of the matter is in the question of

whether – in the words of the petitioners – “requiring payment for

virtually all health care” is or is not constitutional.
 

88.

In deciding, the Constitutional Court could not overlook the fact that

the part of the contested Act that is adjudicated in this proceeding is

an integral content component of the stabilization of public budgets. In

this regard it focused its attention on the principle of restraint and

minimizing interference and on the question of the Constitutional

Court’s authority to make a cassation decision. Similarly as in

judgments file no. Pl. ÚS 24/07 and file no. Pl. ÚS 2/08 (promulgated as

no. 166/2008 Coll.), the Court believes that, even if it finds

sufficient grounds to deny the petition after merely finding the answers

to this circle of questions, it is appropriate not to decide, citing

grounds of procedural economy, without performing a rationality test,

i.e., considering – even if in terms of the optical viewpoint and the

structure of the judgment’s reasoning – the seemingly closing, but from a

juristic viewpoint undoubtedly primary substantive question  – whether

the contested legal framework violates any provision of the Constitution

or of the Charter, or whether it interfered in any right protected by

the Charter. Thus, this means restraint and minimization of

interference, the rationality test, or the consistency of the contested

legal regulation with the provisions of the Constitution or of the

Charter.
 

89. The

Constitutional Court points out that in judgment file no. Pl. ÚS 14/02

(promulgated as no. 207/2003 Coll.) it expressed a certain restraint in

relation to evaluation of the entire regulation of health care, pointing

out, among other things, that it “is aware that these questions are

part of the entire complex of public health care issues, which is based

on from the applied constitutional principles and which should, in its

overall framework, react to the solutions that are standard in developed

democratic countries and internationally agreed or recommended

positions.” In judgment file no. Pl. ÚS 12/94 (promulgated as no.

92/1995 Coll.) – although it concerned the sphere of social security –

the Constitutional Court stated that the decision whether to prefer the

viewpoint of solidarity or give priority to the principle of equivalence

is “reserved to the legislature, which cannot act arbitrarily, but in

setting preferences must take into account the public values being

pursued.”
 

90. The

Constitutional Court, aware of the interconnection of all parts of the

contested legal regulation and the unifying element provided precisely

by the intent to stabilize the public budgets, could not do otherwise in

this matter than to pick up on the conclusions stated in judgments file

no. Pl. ÚS 24/07 and file no. Pl. ÚS 2/08, in particular as regards the

“wide space for the legislature to decide on the subject, measure and

scope of taxes, fees and financial penalties ‘and on the political

responsibility’ of the legislature.” In judgment file no. Pl. ÚS 2/08,

the Constitutional Court stated, for the sphere of social rights, that

“under Art. 5 of the Constitution the political system of the Czech

Republic is founded on the free and voluntary formation of and free

competition among those political parties which respect the fundamental

democratic principles. Political decisions emerge from the will of the

majority manifested in free voting. The decision-making of the majority

shall take into consideration the interests of minorities (Art. 6 of the

Constitution of the CR). Therefore, the Constitutional Court concludes

that if the petitioners, as representatives of the legislative branch,

believe that the legal regulation they contest is inappropriate or has

negative consequences, they can seek change within political

competition, not within judicial review of constitutionality, which, by

definition, must be limited only to questions of a constitutional law

nature. If the Constitutional Court were to grant the petition and

decide itself, instead of the legislature, it would violate not only the

cited provisions of the Constitution of the CR, but it would make the

competition of political parties unnecessary. It is primarily their

task, based on the mandate they receive from the voters and the

political priorities set accordingly, to present the most suitable

methods for implementing the social rights enshrined in Chapter Four of

the Charter. Of course, this is always in terms of the possibilities of

the state budget, supported by the results of state management, for

which they also bear political responsibility, and within the limits

provided by the relevant articles of the Charter of Fundamental Rights

and Freedoms. “Evaluating the question of purposefulness, suitability,

and social justice of a legal regulation in this area is solely in the

power of the legislature, in whose activities the Constitutional Court

cannot interfere, except in cases where unconstitutionality is

determined. These are questions that are essentially political, where

the entire sphere of so-called social rights falls.”
 

91.

The Constitutional Court of course also took into consideration that

reform of the health care system in this phase has not yet been

finished, and that Minister of Health Tomáš Julínek, as a witness,

testified that other related bills will be prepared in the near future.

The Constitutional Court now adds that if it acted in too activist a

manner in relation to any reform, including reform of health care, it

would certainly create case law that would a priori close the door on

any reform attempts. The Constitutional Court also takes into account

the fact that the effects of reform cannot be evaluated until after the

mechanisms created can begin to function, and adds that, in terms of

evaluating the constitutionality of the contested provisions, it has

authority only to decide on the fundamental principles, not on a

particular factual situation.
 

92.

After grounds were found for maintaining the maximum degree of

restraint generally in relation to the contested legal regulation as a

whole, the Constitutional Court, for the reasons analyzed above, moved

on to the reasonableness test. It chose the version of the test outlined

in the part of judgment file no. Pl. ÚS 83/06 (promulgated as no.

116/2008 Coll.) adopted by the plenum without a dissenting opinion,

according to which the principle of proportionality “need not always be

the main criterion for deliberation about the constitutionality of a

statutory provision. This is because the principle of proportionality is

applied especially in the area of human rights and fundamental freedoms

(Chapter Two of the Charter); however, in the area of economic, social,

and cultural rights, we must take into account Art. 41 par. 1 of the

Charter, which opens wide space for the legislature in choosing various

solutions. In view of Art. 41 par. 1 of the Charter, a statutory

regulation need not be in a strict proportionality relationship to the

aim which regulation pursues, i.e. it need not be a measure which is

essential in a democratic society, as is the case, for instance, with

other rights, which one can claim directly from the Charter (but cf.,

e.g., Art. 27 par. 1, 2, and 3 of the Charter and the rights set forth

there, which are not limited by Article 41 par. 1). In this regard, a

statutory regulation will pass the test of constitutionality if it can

be determined to pursue some legitimate aim, and that does so in a

manner that can be seen as a reasonable means to achieving it, although

it need not be the best, most suitable, most effective, or wisest means

(reasonableness test – cf. also judgment file no. Pl. ÚS 61/04,

promulgated as no. 16/2007 Coll.).” In any case, such a procedure is not

unique. “American theory speaks of the rational-basis test, according

to which a norm will always be valid if it is in a reasonable

relationship to some public aim, and is not obviously the result of

arbitrary distinctions” (cf. M. Bobek, P. Boučková, Z. Kühn (eds.),

Rovnost a diskriminace [Equality and Discrimination], Praha 2007, pp.

47-48).
 

93. Before

proceeding to the reasonableness test, the Constitutional Court

considered the nature of social rights and their different nature, given

by Article 41 par. 1 of the Charter. Analogously as in judgment file

no. Pl. ÚS 2/08, it states that these rights “are not unconditional in

nature, and they can be claimed only within the confines of the laws

(Art. 41 par. 1 of the Charter) …. Within these bounds the legislature

has a relatively wide ability to regulate the implementation of

individual social rights, including the possibility to amend them.”
 

94.

The Constitutional Court also considered other unique aspects of the

nature of social rights. In judgment Pl. ÚS 2/08, it stated that social

rights “depend, in particular, on the state’s economic situation. The

level at which they are provided reflects not only the state’s economic

and social development, but also the relationship between the state and

the citizen, based on mutual responsibility and recognition of the

principle of solidarity.”
 

95.

Realizing that “in contrast to legal science … or practical dogmatics,

other fields that concern themselves with law, without considering

practical aims, such as legal history, comparative law, and legal

philosophy, are of a supporting nature” (cf. L. Heyrovský, Dějiny a

systém soukromého práva římského [History and System of Private Roman

Law], VI. edition , Bratislava 1927, pp. 9-10), the Constitutional

Court, first looked from the perspective of these disciplines at the

circumstances in which the right to protection of health and provision

of health care were formulated, under which it is, was, or was not

introduced in the constitutional order in the developed European States,

and finally how it was in reality applied in the practice of the Czech

lands, and how the organization of health care developed. These are

substantial grounds which give rise to what the unique features of

social rights will be, as summarized in the judgment.
 

96.

In terms of legal history, the Constitutional Court considered the

question of the development and relationship between patient and doctor,

the formation of the institution of social rights, and both its

constitutionally guaranteed and factual fulfillment. In the times of the

oldest legal documents, a doctor’s assistance, without any guarantee on

the care provided, was paid by the patient. This is testified to by,

e.g., in the modern renumbering, § 215 of the code of the ancient

Babylonian ruler Hammurabi from the 18th century B.C., under which “if a

doctor performed a difficult operation using a bronze knife on a full

citizen and heals the full citizen, or, with a bronze knife, opens the

orbital arch of a full citizen and heals the eye of a full citizen, he

shall take ten shekels of silver,” or § 216, which provides that a

doctor’s compensation in the case of a member of the full citizen class

shall be five shekels of silver. The Code of Hammurabi also contains

other casuistic provisions of the “doctor’s tariff” and regulates a

doctor’s criminal liability for a flawed medical procedure (cf. J.

Klíma, Nejstarší zákony lidstva. Chammurapi a jeho předchůdci [The

Oldest Laws of Humanity. Hammurabi and his Predecessors], Academia,

Praha 1979, p. 139). Similarly, for the Czech lands, there are sources,

beginning with the Middle Ages, testifying to the fact that medical care

and medications were also paid by a patient without any guarantee of

protection of health. This situation continued to the end of the first

half of the 20th century (further, see, e.g., P. Svobodný, L.

Hlaváčková, Dějiny lékařství v českých zemích [History of Medicine in

the Czech Lands], Triton Praha 2004, pp. 31, 46, 50).
 

97.

Social rights, or rights connected with the provision of medical care,

were not introduced in European constitutions until the 20th century. It

first happened in the so-called Stalinist Constitution of the Unions of

Soviet Socialist Republics, adopted by the 8th Extraordinary Congress

of Soviets of the USSR on 5 December 1936, or in Chapter X, Art. 120.

Under that article, “Citizens of the USSR have the right to material

security in old age, as well as in case of illness and invalidity. This

right is secured by the extensive development of social insurance of

workers and employees on the state account, payment free doctor’s help

for workers, and an extensive network of spas that are available for use

by the working people.” (Cf. the translation in K. Malý, Prameny ke

studiu dějin státu a práva socialistických zemí I. SSSR 1917-1945

[Sources for the Study of the History of the State and Law in Socialist

Countries I. USSR 1917-1945], Praha 1987, p. 128) The cited Stalinist

Constitution from 1936 also enshrined the principle that “In the USSR,

work is the obligation and honor of every citizen capable of work, on

the principle: ‘He who doesn’t work, let him not eat!’” Legal history

judges the provisions of the Constitution on Social Rights from 1936 to

the effect that “it was an expression of the endless insolence of

communist propaganda, which successfully confused the world’s democratic

and, especially, anti-fascist public (including through this

constitution, promoted as a true picture of the Soviet environment).

None of these provisions had an appropriate real effect; everything was

cruelly inconsistent, not only with the reality of practice, but mostly

also with the relevant statutory or sub-statutory regulations” (cf. D.

Pelikán, Dějiny ruského práva [History of Russian Law], C.K. Beck [sic,

should be C.H.] , Praha 2000, p. 77). In the Czech lands the right to

protection of health was first enshrined in § 29 par. 13 of the

Constitution of the Czechoslovak Republic no. 150/1948 Coll. (the “1948

Constitution”). The cited § 29 of the 1948 Constitution read: (1)

Everyone has a right to protection of health. All citizens have a right

to medical care and for security in old age as well as during incapacity

to work and inability to support themselves. (3) These rights are

ensured by laws on national insurance, as well as by public health and

social care. The adoption of this provision was preceded by formulation

of the principles of health care policy in the Košice government program

and the program of the government created in the 1946 elections. “The

health care policy of the most influential party (the Communist Party)

was in large part based on projects developed during the war by

communist doctors. It vehemently promoted Soviet models, although in a

form modified in the spirit of central European traditions of social

medicine (cf. Svobodný, Hlaváčková, Dějiny lékařství v českých zemích

[History of Medicine in the Czech Lands], p. 219). Finally, from the

regulations preceding the current legal framework we must mention Art.

23 of the Constitution no. 100/1960 Coll., under which: (1) All workers

have the right to protection of health and to medical care, as well as

the right to material security in old age and during incapacity to work .

(2) These rights are ensured by the care taken by the state and social

organizations to prevent illness, the entire organization of health

care, the network of medical and social facilities, the continually

expanding payment-free medical care, as well as organize care for safety

at work, sickness insurance, and retirement security.” However, in the

year when Act no. 20/1966 Coll., on Care for the Health of the People,

was adopted “the proclamation that “the right to health care is one of

the fundamental civil rights” expressed, more than the real situation,

only the wishes “of the party and the government.” In further balancing

in 1970 the leading figures in our health care recognized a number of

problems that, according to them, arose from long-term neglect of

investment, the “inheritance” from the capitalist economy, surviving

features in the relationship between doctor and patient. It is

characteristic that most of the problems in the new health care system

were seen in the sphere of economics, not politics (cf. Svobodný,

Hlaváčková, Dějiny lékařství v českých zemích [History of Medicine in

the Czech Lands], p. 221). Expert medical literature considers the

situation in health care in the 1980s to have been critical, with

reference to the fact that this was know by official representatives and

critics outside and inside the regime, including the speakers of

Charter 77, in documents on health care from the years 1983-1985.
 

98.

The Constitutional Court also considered the petitioners’ argument,

presented at the hearing on 1 April 2008, that the framers of the

Constitution, before adopting the Charter, weighed whether to expressly

include “payment-free” in Art. 31 of the Charter or not. According to

the petitioners, because the “payment-free” alternative was chosen, Art.

31 cannot be interpreted against its meaning, in the spirit of the

alternative that was, in the end, not chosen by the framers of the

Constitution.. The Constitutional Court notes that, especially in the

area of social rights, under certain conditions a conflict could arise

between the will of the framers of the Constitution and the political

reality of the time. “If, in certain countries, a constitution does not

correspond to political reality, it is not because one or another

institution or one or another form are not viable, but because the

spirit of that constitution is (temporarily) foreign to the political

conditions of a given country.” (B. Mirkine-Guetzevitch, Les

Constitutions de ľ Europe nouvelle, II. édition [The Constitutions of

Modern Europe, 2nd edition], Paris 1930, p. 53).
 

99.

The Constitutional Court cannot fully agree with the petitioners’ claim

that a number of constitutions from European states enshrine the right

to …health care in various degrees. A comparative study shows that this

right tends to be constitutionally guaranteed in various degrees in the

constitutions of states that joined the European Union in 2004. The

right is not guaranteed, e.g., in the Netherlands or Sweden; in other

countries, e.g., France or Belgium, only a right to a doctor’s

assistance is guaranteed, but not a right to payment-free doctor’s

assistance. In this regard, mention is often made of the Italian

Constitution of 1947, which, in Art. 32 “guarantees free medical

treatment to the poor” (cf. the translation in: V. Klokočka, E.

Wagnerová, Ústavy států Evropské unie [The Constitutions of European

Union States], LINDE Praha 1997, p. 191). From a comparative standpoint,

the closest example to this matter is undoubtedly the Slovak one,

which, of course, the petitioners themselves point to, though with the

emphasis on the dissenting opinions of Judges Ludmila Gajdošíková and

Eduard Bárány. In the cited judgment, file no. Pl. ÚS 38/03 of 17 May

2004, no. 396/2004 Coll. with an analogous version of Art. 40 of the

Slovak Constitution and Art. 31 of the Czech Charter, the Constitutional

Court of the Slovak Republic ruled on an analogous petition concerning

“requiring payment for a certain part of the provision of health care

provided on the basis of health insurance, such as services and

activities which are closely related to health care provided on the

basis of health insurance, but are not an immediate component of it.”

The Constitutional Court notes that in the comparative law part the

cited judgment of the Constitutional Court of the Slovak Republic also

considered the arguments in the judgment of the Constitutional Court of

the Czech Republic no. Pl. ÚS 14/02. The Constitutional Court of the

Slovak Republic finally, in the statement of law of its judgment Pl. ÚS

no. 14/94 (promulgated as no. 396/2004 Coll.) stated the assumption that

“payment free care under Art. 40 of the Constitution has its “scope,”

i.e. that not everything is provided payment-free.”
 

100.

For legal philosophy considerations, the Constitutional Court turned

primarily to the field of medical ethics. Here it first states that the

Hippocratic oath addresses the ethical aspects of the exercise of the

medical profession, and the oath does not contain an obligation to

provide medical care payment-free. The Constitutional Court is aware of

the difference between ideal medicine, i.e. medical procedures in

accordance with the newest developments in science and technology and

available medicine, i.e., the situation in practical medicine. The

specialized literature states that in centuries of science and

technology the distance between ideal and available medicine has

increased. It concludes “we cannot assume that the mathematics of mercy

could permanently solve the conflict between ideal and available

medicine. This is because the initial weighing exchanged economic

problems for ethical ones …. The state’s economy is a limiting factor on

available medicine, not the only one, but unquestionably a significant

one. A wealthy state simply has the resources to reduce the conflict

between ideal and available medicine to the lowest possible level …. The

problem of ideal and available medicine really does not affect ‘only’

patients on dialysis, but in various forms and levels of urgency affects

absolutely everyone …. The society-wide permeation of this issue and

the required level of information are prerequisites for the purposeful

and effective engagement of healthy citizens to the benefit of the

needy” (cf. H. Haškovcová, Lékařská etika [Medical Ethics], Galén Praha

1994, pp. 81-89).
 

101. The

Swiss essayist Jürgen Thorwald wrote on this topic that “doctors must

give politicians the correct numbers” (see J. Thorwald, Pacienti

[Patients], Osveta, Bratislava 1975). “The fundamental contradiction of

health care in the Czech Republic today is the ability to provide a

patient care at an international standard, but strongly limited by

financial possibilities” (see Svobodný, Hlaváčková, Dějiny lékařství v

českých zemích [The History of Medicine in the Czech Lands], p. 222).

The report “Economic Survey of the Czech Republic 2008” published by the

Organization for Economic Cooperation and Development (OECD) states

that “in the first phase of reform, small regulatory fees were

introduced, a step that the OECD recommended in its previous evaluation,

and which should help limit the need for health care” (see Policy

Brief, OECD, April 2008).
 

102.

For the foregoing reason, the Constitutional Court concluded that the

reasonableness test in the case of social law is methodically different

from a test that evaluates proportionality with fundamental rights,

“because social-economic aspects play a much greater role here.” The

rationality test, especially in a situation where the Constitutional

Court concluded that a judgment [sic – petition?] could be denied for

reasons of maintaining restraint, has a more orientational and

supportive role here.
 

103.

In combination with the requirements arising from Art. 4 par. 4 of the

Charter we can describe 4 steps leading to a conclusion that a statute

implementing constitutionally guaranteed social rights is or is not

constitutional:
1) defining the significance and essence of the

social right, that is a certain essential content. In the presently

adjudicated matter, this core of a social right arises from Art. 31 of

the Charter in the context of Art. 4 par. 4 of the Charter.
2)

evaluating whether the statute does not affect the very existence of the

social right or its actual implementation (essential content). If it

does not affect the essential content of the social right, then
3)

evaluating whether the statutory framework pursues a legitimate aim;

i.e. whether it does not arbitrarily fundamentally lower the overall

standard of fundamental rights, and, finally
4) weighing the question

of whether the statutory means used to achieve it is reasonable

(rational), even if not necessarily the best, most suitable, most

effective, or wisest.
 

104.

Only if it is determined in step 2) that the content of the statute

interferes in the essential content of a fundamental right should the

proportionality test be applied; it would evaluate whether the

interference in the essential content of the right is based on the

absolutely exceptional current situation, which would justify such

interference .
 

105. Thus, it

follows from the nature of social rights that the legislature cannot

deny their existence and implementation, although it otherwise has wide

scope for discretion.
 

106.

The essential content (core) of Art. 31, second sentence of the Charter

is the constitutional establishment of an obligatory system of public

health insurance, which collects and cumulates funds from individual

subjects (payers) in order to reallocate them based on the solidarity

principle and permit them to be drawn by the needy, the ill, and the

chronically ill. The constitutional guarantee based on which

payment-free health care is provided applies solely to the sum of thus

collected funds.
 

107. As

indicated by the evidence presented, the fees introduced by the Act

regulate access to health care that is paid from public insurance,

whereby they limit excessive use of it; the consequence is to increase

the probability that health care will reach those who are really ill.

Thus, through the fees, the legitimate aim of the legislature is met,

without the means used appearing unreasonable.
 

108.

Therefore, the contested legal framework did not deny the essential

content of the constitutionally guaranteed fundamental right, as it was

described above, and the statutory framework did not deviate from

pursuing a legitimate aim, and is not obviously unreasonable. Therefore,

we can conclude that the contested legal framework did not exceed the

given criteria.
 

109. The

Constitutional Court, applying the rationality test, evaluated the

relationship between Art. 31, which includes the right to protection of

health and payment-free health care, with the aims and purposes that the

legislature held up for itself by adopting the contested legal

framework. In evaluating the suitability of the chosen institutions “one

must conclude that the state has an obligation to provide citizens

sufficient protection from factors that endanger their health and public

health care“ (see K. Klíma and collective of authors, Komentář k Ústavě

a Listině [Commentary on the Constitution and the Charter], March 2005,

p. 861). “The state’s obligation to protect health and everyone’s right

to protection of health also corresponds to everyone’s obligation to

respect measures adopted to protect health” (see V. Pavlíček and

collective of authors., Ústava a ústavní řád České republiky II. Práva a

povinnosti, [The Constitution and Constitutional Order of the Czech

Republic II. Rights and Obligations] 2nd ed., Praha 1999, p. 251). The

rationality test evaluates whether the contested legal framework does

not bring disproportionate, even if – as will be explained below –

constitutional interference in the relationships between the patient,

the health care facility, and the health insurance company, to which

these parties became accustomed in the period before the present legal

framework went into effect.
 

110.

The Constitutional Court considers it determined that the purpose of

the legislature’s original intentions concerning regulation was an

emphasis on such organization of the health care system as would ensure

higher quality actual implementation of Art. 31, first sentence of the

Charter, that is, the provision of health care at an adequate place and

time and of better quality. This aim is also to be achieved by the

contested legal framework leading citizens to behave with greater

solidarity with others, that is, with those who need greater health

care. The Constitutional Court points out that it said, in judgment Pl.

ÚS 2/08, that “the degree in which the principle of responsibility and

solidarity manifests itself in the legal order of a particular state is

also determined by the nature of that state (e.g., as a social state).

The degree to which the solidarity principle is recognized depends on

the level of ethical understanding of cohabitation in society, its

cultural level, but also the individual’s sense of justice and belonging

with others, and sharing their fate at a particular time and place.

From the individual’s viewpoint, solidarity can be seen as internal or

external. Internal solidarity is given by the emotional closeness of the

relationship to others; it is spontaneous, and appears primarily in the

family and other partnerships. As a rule the state does not interfere

in this relationship, or in only a very limited manner (see family legal

relationships governed by the Act on the Family). External solidarity

lacks this emotional closeness, and therefore the individual’s consent

to apply it is more reluctant. This is, for example, solidarity between

rich and poor, between capable and less capable, between healthy and

ill. In this area the state exercises its sovereign power role very

actively. The solidarity principle is used for reallocation, i.e. the

transfer of resources from some to others – the needy.”
 

111.

As part of the reasonableness test, the Constitutional Court weighted

whether the principle expressed in Art. 4 of the Declaration of the

Rights of Man and of the Citizen in 1789, that “liberty consists in the

power to do anything that does not injure others,” applies to the area

of social rights, and concluded that formalistic insistence on

payment-free medicine for individuals using an expansive concept could

actually lead to lowering the level of payment-free medical care paid

out of public insurance, in the real sense of the word, for all members

of society. At the time of this decision, the Constitutional Court does

not consider it proven that introducing regulatory fees would clearly

make it impossible to reach the aim pursued; moreover, witness testimony

indicates the contrary. Minister of Health Tomáš Julínek thus stated,

e.g., that “unused medications worth four billion are being returned to

pharmacies” and that, after the contested Act went into effect, “the

number of prescriptions in the Czech Republic declined by forty percent …

including the regulatory fees, both in outpatient care and in the

provision of medicines, CZK 1.75 billion was saved in the first

quarter.” An a priori condemnation that presumed, without a certain

amount of respect for the work of experts who prepared the reform plan,

that achieving the aim pursued is impossible, would be – as discussed

further below – to deny the possibility of any empirical arguments pro

futuro.
 

112. It will be the

obligation of the legislature, after analyzing the effect of regulatory

fees, to evaluate for every individual fee whether it does not affect

the existence or exercise of a right arising from Art. 31 of the

Charter, whether it pursues a legitimate aim, and whether a particular

fee is a reasonable means to achieving that aim, also together with

evaluating the effects on the ability [to pay] of various groups of

payers of regulatory fees in connection with rights to financial or

other material profits established by statues from other areas of law

than statutes implementing Art. 31 of the Charter. The legislature must

then make decisions based on this evaluation, including possibly

derogatory (or amending) ones. However, the existing review of a

statutory regulation permits the Court to base its reasoning only on

abstract constitutional law arguments, not on the actual effects of a

statute, which it is not possible to determine individually in

proceedings before the Constitutional Court.
 

113.

It is not appropriate for the Constitutional Court to draw derogatory

consequences already at this point and in a blanket manner (i.e. in

relation to all regulatory fees), because this analysis does not (yet)

exist. It would be equally inappropriate for the Constitutional Court to

now conduct this analysis itself, as part of the presentation of

evidence in a proceeding on abstract review of a norm. In consequence,

the Constitutional Court would thereby pro futuro (despite the principle

of restraint) concede that it would, in every individual case of a

petition filed shortly after a particular statute went into effect,

analyze what effects it has (or its individual provisions have), from

various imaginable points of view. However, the Constitutional Court

would thereby get into a dangerous trap, not only because it would have

to rely on the executive (or legislative) branch when obtaining

documentation for such an analysis, but primarily because it would

thereby (when implementing the analyses immediately after a new legal

regulation of anything is adopted) clearly step into the political ring,

and, would become a mere reviewer or analyzer of the effects of legal

regulations. Thus, it is the primary obligation of the legislature to

adapt a reform legal situation (even if transitional) to factual

findings that will be made in the process of applying statutory

provisions. All the more so, if specific impermissible effects of reform

of public finances were found to exist for certain groups of residents

definable by common elements, not just for random individuals.
 

114.

It is evident from the foregoing that abstract review of a statute

cannot theoretically review and reliably rule out all its imaginable

effects in the personal sphere of the addressees of norms. However, such

possible individual interference can, of course, still be corrected

using standard procedures, including a constitutional complaint.
 

115.

If – on the basis of analysis of a legal framework conducted by the

legislature or presented to it by the executive branch for evaluation –

it became evident that that framework – even if only component parts

thereof – deviated from the criteria raised above, the Constitutional

Court would not hesitate to intervene if the legislature did not act;

its intervention would then be true protection of constitutionality, and

not the disclosure of a political position.
 

116.

The Constitutional Court also weighed whether the statutory means used

to achieve a legitimate aim are reasonable. As the Constitutional Court

already stated in its judgment file no. Pl. ÚS 2/08, “with social rights

we can say that their common limitation is precisely the fact that they

are not, unlike the fundamental rights and freedoms, directly

enforceable based on the Charter. Their limitation lies precisely in the

need for statutory implementation, which, of course, is also a

condition for concrete implementation of individual rights.” Under Art.

31, second sentence, the Charter gives the right to payment-free health

care and health care aids on the basis of public insurance, under

conditions specified by statute. We can conclude from linguistic

analysis of Art. 31 par. 2 of the Charter that its conditions would be

fulfilled by, e.g., a statute that would increase every citizen’s

payments of health insurance premiums by, e.g., an amount of CZK 416.66

per month, with the simultaneous establishment of a bonus ranging from

CZK 30 to CZK 5,000 per month, graduated according to whether and how

often an insured person visited a doctor, was hospitalized, or presented

a prescription to a pharmacist. In evaluating the implemented model,

the Constitutional Court weighted and compared primarily whether the

resulting effect for the expenses of the theoretical budget of a citizen

of the Czech Republic, who is protected by Art. 31, second sentence, is

different in the case of the contested legal framework and the

hypothetical model described above, and concluded that there would be no

difference in economic consequences.
 

117.

According to the contested Act, a “regulatory fee” is the income of a

health care facility. However, this provision cannot be interpreted out

of the context formed by the synallagmatically connected system of

rights and obligations of the three participating subjects, i.e. the

patient, the health care facility, and the health insurance company.

Hypothetically we can certainly imagine the alternative that the

“regulatory fee” in the same amount would be conceived as part of the

insurance premium for health insurance, and the place of payment would

be the health insurance company, which would subsequently, contractually

or by law, increase the payment to the relevant health care facility by

the amount of this insurance premium, which, incidentally, would not

even have to be collected as a collection debt. This model, which would

not conflict with linguistic interpretation of Art. 31 of the Charter,

would, however, have the same consequences for the patient as the

existing model, which is based on the principle that the payment is made

directly to the final recipient. As the regulatory fee is part of the

financing of the health care system, it will thus also be reflected in

the relationship between the health care facility and the health

insurance company, i.e. it will affect not only the management of the

health care facility, but also of the health insurance company.
 

118.

Finally, the Constitutional Court evaluated the relationship between

the aim of the reform and the social right, with emphasis also on

whether, if the contested legal regulation gives priority to the

interest in protecting health under Art. 31, first sentence, of the

Charter, possible interference in the social right and the purpose of

Art. 31, second sentence, of the Charter is minimized. The

Constitutional Court did not find that regulatory fees have a generally

“strangling effect” and realistically make health care or health care

aids inaccessible for anybody. In concrete individual cases one can

proceed under § 16a par. 2 let. d) of the Act on Public Health

Insurance, under which the regulatory fee is not paid by an insured

person who presents a decision, notice, or confirmation, no more than 30

days old, issued by a body providing assistance in material need, about

the benefit payment that is provided to him under a special regulation.

We also cannot overlook the limit of CZK 5,000 specified by § 16a par. 1

of the Act on Public Health Insurance. In the context of relationships

based on internal solidarity, we cannot neglect to mention the

institutions of the mutual support obligation between parents and

children, the support obligation between other relatives, the support

obligation between spouses, alimony for a divorced spouse, a

contribution for the support and payment of certain expenses for an

unmarried mother under Part Three of Act no. 94/1963 Coll., on the

Family, as amended (the “Act on the Family”). Nor can we overlook the

provision of the Act on the Family on parental responsibility, or, 

e.g., the obligations of a child living in a common household with its

parents under § 31 par. 3 and 4 of the Act on the Family.
 

119.

Here the Constitutional Court – although it is deciding on the petition

to annul the contested Act for procedural reasons, i.e. after

separating out two parts of the petition to be treated separately, in

three scheduled proceedings – is aware, as already state above, of the

existence of the mutual ties and interconnectedness of individual

provisions of the contested Act, or the legal regulations and norms

amended or supplemented by the Act or newly adopted (see Art. 88 of this

judgment). The Constitutional Court also specifically took this

interconnectedness into account in, e.g. judgment file no. Pl.ÚS 2/08,

where, when deciding on the annulment of providing sickness insurance

benefits for the first three days of incapacity to work by the contested

statute, it stated that, in contrast to this annulment, “of course, the

obligation to pay so-called regulatory fees remained unaffected.” The

proceeding did not rule out the possibility that stabilization of the

public budgets, besides potentially adding to the expense side of the

theoretical budget of a citizen of the Czech Republic, on the contrary,

in various alternatives, would increase the income side, e.g., in the

form of reducing taxes, increasing pensions, changing the level or

conditions for allocation of social benefit payments, in a number of

cases also by the limit of CZK 5,000, etc. Thus, we can summarize that,

generally, from the point of view of Art. 31 and Art. 4 par. 4 of the

Charter, the regulatory fees provided by the Act are within the limit

that preserves the essence and significance approach to dignified health

care paid from public health insurance, and these payments do not

create a barrier that limits this access (they do not have a “strangling

effect”), also in context with benefits provided from the social

security system.
 

120. We

must point out, that the basis for possible interference by the

Constitutional Court into such a complex issue cannot be a formal

conclusion without regard to the material and factual side of the

matter. That material aspect is the criterion of the intensity of the

effects that the evaluated legal regulation can have on the exercise of

the right to payment-free health care on the basis of public health

insurance. Thus, evaluation of the principal permissibility of the

institution of regulatory fees takes place at the level of evaluating

the factual nature of the obligations that the evaluated regulation

imposes on individuals. In this regard the most important deliberation

is whether the obligation imposed, in this case financial payment, is,

in its intensity, i.e. its amount, independently, or in the aggregate, a

consequence for the right of the individual that goes against the

meaning of the guarantees provided by the Charter. Such a fact was not

determined from the presentation of evidence before the Constitutional

Court.
 

121. The

Constitutional Court thus concluded that the contested legal framework

of regulatory fees will stand up to the test of rationality, or in terms

of conditions provided by law. In this regard, and now especially in

relation to reform of the health care system, or the area of social

rights, the Constitutional Court – although it is addressing this issue,

thus defined, for the first time – points out, among other things pro

futuro, that within the intentions of judgment file no. /l. ÚS 11/02

(promulgated as no. 198/2003 Coll.) a reason for which “the

Constitutional Court can reverse its own case law is a change in the

social and economic situation in the country, or a change in its

structure, or a change in the society’s cultural expectations. Another

possibility is a change or shift in the legal environment created by

sub-constitutional legal norms that, in the aggregate, influence the

approach to constitutional principles, without, of course, exceeding

them, and, above all, do not limit the principle of democratic statehood

(Art. 1 par. 1 of the Constitution of the CR). Another possibility for

changing the case law of the Constitutional Court is an amendment or

supplement to those legal norms and principles that form binding points

of reference for the Constitutional Court, i.e. those that are contained

in the constitutional order of the Czech Republic, except, of course,

in the case of amendments that violate the limits provided by Art. 9

par. 2 of the Constitution, i.e. changes to the essential requirements

of a democratic, law-based state.” For the adjudicated matter that means

that the Constitutional Court does not approach evaluation of questions

related to social rights in a static manner, but with exceptional

emphasis on what the situation is at the time of its decision.
 

122.

In connection with the abovementioned wider context, the Constitutional

Court began with the fact that Art. 31, par. 2 of the Charter

guarantees citizens, on the basis of public insurance, the right to

payment-free health care, and to health care aids, under conditions

provided by statute, and, under Art. 4 par. 4 of the Charter, was aware

that – as already indicated above – that the statutory conditions cannot

go so far as to affect the very essence and significance of the right

to payment-free health care.
 

123.

Therefore, the Constitutional Court considered the purpose of

introducing regulatory fees and the use of the income from collected

regulatory fees, keeping in mind the question of whether introducing

regulatory fees could have been a fundamental step that would transform

payment-free health care under Art. 31 of the Charter into paid health

care.
 

124. First of all, we

must emphasize that the purpose of introducing the regulatory fees was

regulation of patient behavior in relation to health care facilities and

obtaining medications in pharmacies, as well as the behavior of

patients vis-à-vis each other. As already state, the aim of this

regulation is to allow quality health care and medicines to be provided

to those who really need it, and at the same time to strengthen

solidarity among patients, or potential patients. A regulatory element

can have different forms and effects in practice. Certainly there is a

marked attempt, in the context of the Act on Stabilization of Public

Budgets to optimize the drawing of public funds, and thereby, through

regulation, to limit overuse of medical care or waste and inefficiency

in obtaining medicines. However, the subjective aspect of regulation is

also a substantial factor. Besides the fact that it should lead to the

cited change in behavior in relation to use of health care services and

supplies, it reflects the fact that, although there is a right to

payment-free health care, a health care facility is paid for health

care, similarly as a pharmacist for medicine, by a third party – the

health insurance company. The solidarity principle is reflected in a

bilateral relationship, both as regards the person who shows solidarity

with another, and as regards the person with whom solidarity is shown.

On one side is someone who should not request unlimited health care that

he does not need in the extent requested, and on the other side someone

who should realize that the provision of health care precisely to him,

funds from public health insurance are reallocated so that he draws more

from them than someone to whom health care was not provided.
 

125.

As regards the second question, i.e. whether payment-free health care

was transformed into paid health care, the Constitutional Court

primarily points out that it interpreted the terms “health care” and

“payment-free health care” in the past. In its judgment of 4 June 2003

file no. Pl. ÚS 14/02, it said that “the prohibition of direct payment

thus primarily concerns the actual performance of payment-free health

care.” In the matter under file no. Pl. ÚS 14/02 the Constitutional

Court denied a petition from a group of deputies of the Chamber of

Deputies of the Parliament of the Czech Republic seeking annulment of

part of the second sentence in § 11 par. 1 let. d) of Act no. 48/1997

Coll., on Public Health Insurance, in the version then in effect, the

words “or in connection with provision of that care.” It also concluded

that “nothing prevents direct payment from the insured parties being

collected for health care provided beyond the framework of conditions

for payment-free health care.” The dissenting opinion of Judges Vojtěch

Cepl, Vladimír Čermák, Vojen Gűttler, Pavel Holländer, Jiří Malenovský,

Jiří Mucha, and Antonín Procházka indicates that, according to the

dissenting judges, “Art. 31 authorizes the law to determine the

conditions for provision of payment-free “health” care, not of care that

is not health care but is part of meeting a person’s essential needs

independently of protecting health. In this regard the Act exceeded the

framework of the constitutional order because it make it impossible to

collect direct payments from insured persons for care that is not health

care, and which, by itself, does not serve to protect the health of the

insured person. It thus creates non-objective and unreasonable

differences between insured persons to whom such payment-free health

care is provided, and those insured persons to whom it is not provided,

although both categories are forced to satisfy the corresponding needs

independently of health care that may be simultaneously provided.”
 

126.

The Constitutional Court already considered “payment-free” status in

the past in connection with interpretation of Art. 33 of the Charter. In

its judgment of 13 June 1995 file no. Pl. ÚS 25/94 (promulgated as no.

165/1995 Coll.) it stated that “payment-free education undoubtedly means

that the state bears the expense of establishing schools and school

facilities, but it does not require so-called tuition for their

maintenance, i.e. provision of education at the elementary and secondary

level for payment … According to the interpretation of the concepts of

the right to payment-free education that the petitioners submitted, the

state should ensure payment free provision of everything that is

directly connected to attendance at elementary and secondary schools,

i.e., e.g., provision of indoor shoes, a satchel, pencil case, writing

supplies, gym uniform, etc. It is obvious that payment-free education

cannot mean that the state will bear all expenses that citizens incur in

connection with exercising the right to education. Thus, the state can

require payment of some expenses in connection with exercising the right

to education, and the government is undoubtedly entitled to such steps.

This does not, under any circumstances, cast doubt on the principles of

payment-free education at elementary and secondary schools” (cf.

Collection of Decisions of the Constitutional Court of the CR, vol. 3,

1995, no. 31, p. 238). In this judgment the Constitutional Court

distinguished between payment-free education and related activities that

also require expenditures but are not directly a teaching or

educational process. Analogously, the Constitutional Court now adds that

health care and financing of it is only an important subset of the

financing of the health care system, and that without a functioning

health care system it would certainly not be possible to provide quality

health care.
 

127. The

Constitutional Court is aware of the multi-functionality of a regulatory

fee, because, in addition to the regulatory element, there is a

utilitarian viewpoint, consisting of the fact that regulatory fees help a

health care facility, in addition to providing payment-free health

care, to function better, provide related services, or improve personnel

aspects and the level of the environment in which health care is

provided, and so on. In view of the multi-functionality of a regulatory

fee, we cannot always with certainty clearly answer the question how the

regulatory fee collected from a particular patient was applied, because

the combined funds from regulatory fees paid may be used differently,

case by case, for the cited purposes, or possibly other alternatives.

From the evidence presented, the Constitutional Court does not find it

proven that by paying a regulatory fee a patient would pay health care

or health care aids directly and exclusively .
 

128.

From this viewpoint, the Constitutional Court first addressed the

regulatory fee provided in § 16a par. 1 let. f) of the Act on Public

Health Insurance. It also took into account that the petitioners

themselves acknowledge that requiring payment for “hotel services,” i.e.

setting fees for accommodation and food in a hospital, need not exceed

the bounds of constitutionality.” In the case of performance under § 16a

par. 1 let. f) of the Act on Public Health Insurance it is quite

obvious that this cannot concern payment-free health care or health care

aids under Art. 31 of the Charter, but other, concurrently provided,

related services. Here we can fully accept the abovementioned arguments

of the dissenting judges, also because the majority opinion, in

discussing the petition conducted under Pl. ÚS 14/02 did not accept it

as part of the reasoning of the judgment because it considered it to

“deviate from the task that the Constitutional Court faces in connection

with the petition from the group of deputies.” In the opposite case –

taken ad absurdum – Art. 31 of the Charter would also establish an

entitlement for payment-free accommodation or hospitality services

outside medical facilities, regardless of whether they were provided in

connection with health care. In this part, on the assumption that § 16

par. 1 let. f) of the Act on Public Health Insurance is not also

contested on other grounds (conformity of the legislative process) this

would be an obviously unjustified petition.
 

129.

Within the abovementioned outline, the Constitutional Court considered

the constitutionality of introducing regulatory fees in other cases

specified in § 16a of the Act on Public Health Insurance. As documented

by the example of fees under § 16a par. 1 let. f) of the Act on Public

Health Insurance, the essential point is not the name of the payment,

but primarily its purpose. The Constitutional Court took into

consideration that on one hand – as regards the term “fee” – there are

various definitions of fees, and it is recognized that “the concept of

fees in the financial expert sense does not always match the concept of

fees in the financial legal sense” (see K. Čakrt, Poplatky [Fees], in:

Slovník veřejného práva československého, III.[Dictionary of

Czechoslovak Public Law], Brno 1934, p. 204); on the other hand the term

“fee” was and is used to identify payments which are not, by nature,

public law payments. Thus telephone “fee,” e.g. under § 1 of government

directive no. 16/1925 Coll., on payments from telephone fees “is

understood to mean call charges, both call charges for calls placed from

public telephones and call charges for long distance calls”; in the

present legal framework the phrase “late fee” (§ 517 par. 2 of the Civil

Code) has become quite standard, yet it is quite clearly a private law

institution. Thus, it is evident that the term “regulatory fees” is not

precise in terms of legal terminology meaning, but it corresponds to a

certain shift in meaning of the term “fee” to the term “payment.” The

Constitutional Court also considered the question of whether a

“regulatory fee” is not a “price.” The term “price” is also defined

differently in economic theory and legal terminology. The Constitutional

Court concluded first of all that a “regulatory fee” is not a price

under Act no. 526/1990 Coll., on Prices, as amended, because it is not

negotiated during the purchase and sale of goods, nor is it determined

according to a special regulation for purposes other than sale (§2 of

the Act on Prices) and the Act cannot be applied to it, because under § 4

of the Act, it does not apply to compensation, reimbursement, fees,

compensation of damages and expenses and interest governed by special

regulations. Generally, it is typical that a price is an equivalent for a

thing, product, performance, work, or service. A “regulatory fee” is at

first glance not an equivalent, and cannot be payment for health care

provided, because then the amount of it could not be the same for

treatment of a fever by a general practitioner or a complicated health

care service by a specialist. All cases of regulatory fees mean a

payment from a patient to a health care facility sui generis under the

principle do ut facias. In this regard the Constitutional Court took

into consideration a certain parallel between medicine and other free or

artistic professions, and concluded that a doctor or a health care

facility also performs related activities which it could not do without

and without which it would not be able to provide medical care at all.

Health care facilities conduct activities such as, e.g., administrative

work, legal assistance, liability insurance, transportation, cleaning,

etc. to ensure their operation and preparedness to provide health care.

We cannot overlook the fact that e.g., remuneration for lawyers is

traditionally based on distinguishing the remuneration for the legal

assistance provided, reimbursement of cash expenses, and an

administrative flat fee. The Constitutional Court found no reason why

this model could not also be constitutionally usable in the case of

doctors or medical facilities. The fact that payment is made as

performance do ut facias also expresses the share in the contribution to

health care facilities for related activities, according to who uses

their services most. The Constitutional Court found nothing unjust in

this principle, and adds that the principle of equivalence and is

expressed in the contested legal framework in the setting of a limit for

payments under § 166 par. 1 of the Act on Public Health Insurance. The

Constitutional Court adds that Art. 31 of the Charter assumes that

health care and health care aids will be paid precisely out of public

health insurance, but it does not create an obligation for public health

insurance to pay everything that is not health care or a health care

aid. The consequences of this constitutional interpretation of Art. 31

of the Charter and its full reflection in Art. 31 of the Charter by the

anticipated statue would lead to using funds from public health

insurance in the event, and only in the event, of health care and health

care aids really guaranteed by the Charter. The Constitutional Court

does not find the fact that payment under the principle do ut facias is

described inappropriately in legal terminology to be grounds for the

contested provisions to be unconstitutional. In the Constitutional

Court’s opinion, in terms of the recognizability and understandability

of a statute it is not important what a particular institution is

called, but whether it can be understood from the statute what rights

and obligations the parties to the legal relationships governed by the

statute have, or how the possibility to become familiar with the statute

in the sense of the maxim scire leges hoc non est verba earum tenere

sed vim ac pot estatem is met.
 

130.

The Constitutional Court analogously considered the issue of a

“regulatory fee” and “supplemental payment for medicines.” In this case

too the Constitutional Court examined the essence and purpose of these

payments. In the first place it took into consideration that “payment

for a prescription” had a tradition in the Czech lands, even at a time

when payment-free medical care was guaranteed by the Constitution. This

payment arises from the principle do ut des and also cannot be evaluated

without weighing the synallagmatic interconnection of the rights and

obligations of the patient, the pharmacy facility, and the health

insurance company. With this payment, the place of payment is a

pharmacy, but in the system of financing the purpose of paying a

regulatory fee is largely reflected in lowering the supplemental payment

for medicines. The price decision of the Ministry of Health of 20

December 2007, which sets the conditions for price regulation of medical

preparations and foods for special medical purposes, the methods of

price regulation for medical preparations and foods for special medical

purposes, details for price regulation of medical preparations and foods

for special medical purposes by a maximum price, the rules for price

regulation of medical preparations and foods for special medical

purposes, the requirements for proposals to set a maximum price of

medical preparations and foods for special medical purposes, amending or

annulling it, and rules for setting the maximum price for services by a

shop with medical preparations and foods for special medical purposes

(the “price decision”); in Part V. par. 5 it provides that the price of a

preparation regulated by a maximum price (with specified exceptions)

must be additionally reduced by an amount calculated according to the

formula : “regulatory fee for issuance of a medical preparation *

(0.25*(ARCTG(MP/50-2,5) +1.6)) where MP = manufacturer’s price (or

importer’s price) less VAT.” Thus, it is evident from that process, and

from the deepening degression of the percent of the maximum commercial

mark-up, as indicated in Part V. par. 3 of the price decision, that the

introduction of regulatory fees found its intended effect in the overall

mechanism of setting the resulting price of a medical preparation,

where the pharmacy facility, although it is the place of payment, keeps

basically only a minimal amount out of the regulatory fee collected. The

witness, Minister of Health Julínek, in his answer to a question about

the amount of the regulatory fee that the pharmacies keep as profit,

answered that there is “none,” precisely with regard to the reduction of

price of a medical preparation and “administration of the fee.” With

this type of regulatory fee as well, a very important factor is the

regulatory function, thus meeting the legitimate aim cited above. As

indicated by the evidence presented, the purpose of the regulatory fee

is to guide patients to a responsible approach to obtaining medicines,

so that a patient will obtain on a doctor’s prescription only the

medicines that he needs and uses, not in order to – which, as generally

known, has previously happened – have an opportunity to obtain supplies

of them or to pick them up in a pharmacy only to give the doctor who

prescribed them the impression that he was undergoing treatment, but did

not use the medicines or return them to the pharmacy. The expected

effect of more economical handling of medicines can already be seen in

the period since the contested legal regulation went into effect. The

ceiling of CZK 5,000 is, with medicines as well, an important element

that supports solidarity with patients who, before the contested legal

regulation went into effect, paid higher amounts in supplemental

payments. The Constitutional Court considered it proven by the testimony

of the Minister of Health that the effects of this form of solidarity

have already been seen in practice, in specific cases of the serious

ill, since the contested legal regulation went into effect. The

Constitutional Court did not find the existence of a supplemental

payment for medicines or the universal application to be fundamentally

unconstitutional, again in a situation where a “strangling effect” did

not arise.
 

131. The

Constitutional Court found that imposing penalties on a health care

facility for failure to collect fees and the authority of a health

insurance company to impose this penalty were constitutional. As already

stated, health care is provided within the health care system, without

which it could not be provided at good quality, or perhaps at all. A

health care facility does not have a right under Art. 31 of the Charter,

that is held by the citizen, or the patient. A health care facility is a

health care provider, and a subject in the health care system, which

also fulfills organizational, economic, financial, employer,

scientific-research, educational, etc. functions. The fact that a health

care facility does not collect regulatory fees is a transgression, the

object of [making it one ] is the interest in the functioning and

protection of the health care system. A certain analogy can be found,

e.g. in the penalties imposed for violating the rules of economic

competition or in the regulation of consumer protection. In these areas

as well, a public law penalty is imposed for violation of obligations

that consist of unfair distortion of a private law relationship. The

consequences of not fulfilling the obligation to collect regulatory fees

can appear, e.g., in distortion of access to health care facilities or a

reduction in quality where a health care facility that does not collect

fees exceeds its patient capacity. The Constitutional Court adds that

it is up to the legislature, to choose which subject it will give the

power to impose a public law penalty, if the penalty is imposed as the

result of a proper administrative proceeding and the imposition of a

penalty is subject to judicial review, which the contested legal

regulation meets.
 

132.

Moreover, in this regard the Constitutional Court evaluated only whether

payment-free health care paid out of public insurance continues to be

available, and concluded that, at least with regard to § 16a par. 2 let.

d) of the Act on Public Health Insurance and to the limit of CZK 5,000

provided by § 16a par. 1 of the Act on Public Health Insurance, that is

the case. The Constitutional Court did not find the legal regulation of

regulatory fees to be unconstitutional; however, it will be up to the

legislature to monitor the effects of the regulation, evaluate them, and

correct the legal regulation if necessary to that availability of

health care will continue to be ensured for all, because indirect

restriction of access to payment-free health care paid out of public

insurance could lead to violation of Art. 31 of the Charter.
 

133.

The Constitutional Court also considered the petitioners’ objections

relating to the amended version of § 17 par. 5 of the Act on Public

Health Insurance. The petitioners’ claim that this provision is

inconsistent with the existing case law of the Constitutional Court

because it involves individual regulation is not pertinent. This

situation is clearly not comparable to the one that the Constitutional

Court evaluated in judgment file no. Pl ÚS 36/05. The contested § 17

par. 5 authorizes the Ministry of Health to issue a list of health care

services with point values. According to the text of the contested

provision, that list, in view of the parties it applies to, which is not

individualized in any way, is supposed to have the nature of a

normative act, not an individual administrative one. The contested

provision, which reads “The Ministry of Health shall issue, by decree, a

list of health care services with point values,” does not fundamentally

differ from, e.g., the analogous provision in the Act on Attorneys,

under which the Ministry of Justice is authorized to determine the

remuneration and reimbursements of an attorney, which was done by a

decree, which, in the event of non-contractual remuneration, also

provides a list a of services and a tariff value for the circle of

attorneys registered in the register of attorneys, not individually

specified. The method that the legislature selected is standard, and not

questioned in analogous cases. A case such as the petitioners have in

mind would exist if the Ministry of Health were authorized to issue a

list that had different point values for individual health care services

that were different, e.g., for St. Anne’s Hospital in Brno than for

other hospitals in the Czech Republic. The Constitutional Court adds

that if the Ministry of Health acted thus ultra vires and issued an

individualized decree that was not a generally binding legal regulation,

but a hidden individual administrative act, it would certainly be

appropriate to object to such a decree; however, the Constitutional

Court did not find the statutory authorization to be unconstitutional.
 

134.

In conclusion, we can summarize that the Constitutional Court had no

reason to annul the contested parts of the Act for being

unconstitutional in content in any of the abovementioned spheres. Of

course, in order to deny the petition it would have been independently

sufficient for the Constitutional Court to conclude either that, for

reasons of restraint and minimizing interference, there is no room for a

derogatory judgment, or that the contested legal regulation is not

unconstitutional, because in its opinion the contested legal regulation

was adopted within the framework set froth by Art. 4 par. 4 of the

Charter and it met the rationality test. Thus, theoretically the

Constitutional Court basically had to choose whether to choose for the

reasoning of its decision only one of the groups of reasons, or all of

them. After deciding, in the specific matter, which concerns the very

serious issues of life and health, for a more comprehensive approach,

and thus weighing reasons from all spheres, it adds that, among them, it

gives hierarchical priority, including within the intent of the

judgment in the matter file no. Pl. ÚS 24/07 and file no. Pl. ÚS 2/08 –

having in mind the interconnected content and unifying context of the

Act on Stabilization of Public Budgets and noting that the decision to

separate this matter and the matter conducted under file no. Pl. ÚS 2/08

was of a purely procedural nature – grounds that led it to restraint

and minimization of interference. The fact that the contested legal

regulation was not found to be unconstitutional and that it me the

reasonableness test leads to the conclusion that interference by the

Constitutional Court in analogous matters could come into consideration

only in case of flagrant caprice, arbitrariness and unreasonableness by

the legislature, which – as was repeatedly said and indicated – was not

found in this matter.
 


XII.
 

135.

Based on all the cited facts, the Constitutional Court denied the part

of the petition reviewed as file no. Pl. ÚS 1/08 [§ 70 par. 2 of Act no.

182/1993 Coll.].

Instruction: Decisions of the Constitutional Court cannot be appealed (§ 54 par. 2 of the Act on the Constitutional Court).

Brno, 20 May 2008


 


Dissenting opinion of Judge František Duchoň


The

Constitutional Court has already explained, in judgment Pl.ÚS 14/02,

that: “Under Art. 31 of the Charter everyone has the right to the

protection of his health. Citizens shall have the right, on the basis of

public insurance, to payment-free health care and to health care aids

under conditions provided for by law.” That law is Act no. 48/1997

Coll., on Public Health Insurance (the “Act”), which governs public

health insurance and the scope and conditions under which health care is

provided on the basis of the Act (§ 1 of the Act). The Act makes it

obligatory for a citizen to have insurance, the content of which is

provided by the Act. In setting the content of the insurance

relationship, the legislature is bound by the constitutional order,

primarily the material scope of the constitutional right to protection

of health. In regulating public health insurance, the law cannot exceed

this material framework for “protection of health” and can regulate only

the provision of care that serves to “protect health” (prohibition of

arbitrariness). The insured person transfers to the insurance company,

for payment, the risks that he may incur through danger to his health or

interference in his health. In contrast, the insurance premium cannot

be used to pay for things, procedures, interventions or services that do

not serve to protect the health of the insured person, but to satisfy

other needs, e.g., in securing living conditions.”
 

In

my opinion, introducing the so-called “regulatory fees” for health care

covered by public health insurance, and a fee for every item on a

prescription, is inconsistent with Art. 31 of the Charter. Most citizens

must thus pay another, even if relatively low, amount, just to be

allowed into the system (i.e., into a health care facility). Thus,

regulatory fees are by nature an “entry fee,” that a citizen must pay in

order to be allowed entry into a health care facility. This has led to a

situation where the right constitutionally guaranteed in Art. 31 of the

Charter was to a certain extend denied by the legal regulation

introducing so-called “regulatory fees.” In this regard I cannot do

otherwise than to refer to judgments file no. Pl.ÚS 35/95 and Pl.ÚS

14/02.
 

In my opinion, in a

situation where medical care is provided to residents of the Czech

Republic payment-free, on the basis of public insurance (Art. 31 of the

Charter), the so-called “regulatory fees” represent only a fiscal

attempt to collect as much money as possible from the greatest possible

number of subjects. Evidence of this is the fact that the fees were

implemented universally (with the exceptions set forth here) so that

they must also be paid by those subjects for whom public health

insurance is paid by the state (pensioners, minor children).
 

If

the aim of introducing these fees was supposed to be preventing or

limiting the abuse of health care services, it is not logical that they

were also introduced for those subjects where it is, on the contrary,

desirable that they not avoid health care (pregnant women, minor

children). No such “regulation” is permitted in those cases. It is

especially illogical, and in a way “immoral,” to have so-called

“regulation” where, after a citizen passes through the entry sieve, i.e.

receives examination or treatment from a doctor and a medicine

prescription, he must pay in the pharmacy an additional CZK 30 for each

item on the prescription, including for medicines with a supplemental

payment.
 

Introducing

regulatory fees does not fulfill the role of “the patient’s

co-participation in medical care,” as is declared, but only allocates

additional money into the system, as demonstrated above. Or, in the

classic words: “This method of a patient’s co-participation in the costs

of health care is somewhat unfortunate.”
 

This

legal regulation is also inconsistent with Article 1 of the Charter,

under which all people are free, have equal dignity, and enjoy equality

of rights. There are certain groups of people for whom introducing these

fees created a considerably burdensome social situation. Moreover, I

consider it undignified to run around sometimes large health care

facilities looking for a box office where one can buy a “ticket” to the

health care system.
 

As to

the details, I join in the dissenting opinion prepared by Judge J.

Nykodým, because I agree one hundred percent with his conclusions. I

consider it unnecessary to repeat or further develop his constitutional

law analysis of this issue.



Dissenting Opinion of Constitutional Court Judge Vojen Güttler


First of all, I refer to the dissenting opinion of Judge JUDr. Jiří Nykodým, in which I join.
I myself state the conclusion of that opinion as follows:
I.

1) Regulatory fees (RFs) are introduced universally, for practically

all groups of the population. They apply to pensioners with only pension

income, and to small children. This must be seen in the overall context

of rapidly increasing prices for energy, rent, food, etc. The opinion

that a fee of CZK 30 is affordable for everyone is deceptive, because

older people (and small children) often have to consult a doctor,

sometimes several times a month, so they will pay CZK 30, plus

additional fees for every prescription item and supplemental payments

for medicines, several times.

2) The declared aim of the fees is

to limit unnecessary doctor visits. It is then not logical to pay fees

for prescription medicines; if a doctor prescribed a medicine, then the

doctor visit and the resulting prescription were not unnecessary.
 

3)

The universality of the RFs is the basic reason why the RFs, as

regulated in § 16a of Part 40 of Act no. 261/2007 Coll., directly

conflict with Article 31 of the Charter of Fundamental Rights and

Freedoms. This article does establish the right to payment-free health

care based on public health insurance, under conditions provided by law.

However, the law may not go so far as to violate the essence and

significance of any fundamental right (Art. 4 par. 4 of the Charter).

However, that is exactly what happened in the adjudicated matter. Thus,

the argument in the Constitutional Court’s judgment, that the essential

content of Art. 31 was not violated, is incorrect and unconvincing, for

the abovementioned reasons. For the same reason, in the present matter,

we also cannot refer to Article 41 par. 1 of the Charter.
 

II.

The provision of § 16a par. 4 of the Act states that a RF is income of

the health care facility that collected it. This is a mere declaration

that does not correspond to reality; strictly speaking, this will be

income of the health insurance company (and thus a disguised form of

contribution by the insured persons / patients to the system of

statutory health insurance). This occurs because of the following

reasons.
a) The explanatory report to the original proposal from the

Ministry of Health (presented to the government on 27 April 2007) says

that the growth in income of outpatient and inpatient health care

facilities will be taken into account in the negotiation proceeding

between providers (i.e. doctors) and health insurance companies on

coverage of health care in 2008; in other words, the insurance companies

will deduct from payments to doctors the fees that doctors are required

to collect from patients. This was confirmed by the director of the

General Health Insurance Company (VZP) Dr. Horák, in an interview for

the program Radiožurnál on 7 March 2008 and by the witness Minster

Julínek in a hearing before the Constitutional Court on 16 April

2008.(Note: This does not apply to general practitioners, as they are

paid by the insurance companies, by the so-called “head-count” system,

i.e. according to the number of patients registered with them,

regardless of how many patients they actual treat or examine.)
b) A

regulatory fee is not, in fact, income of the health care facility, also

in view of § 16a par. 6 and 8 of the Act. They give doctors an

obligation to give insurance companies information about the RFs

collected, and to collect the fees from patients; if they do not do so,

the insurance company can even impose (repeatedly) a fine on the doctor,

of up to CZK 50,000, which becomes the company’s income. None of this

would make logical sense if the regulatory fee was the income of the

health care facility.
c) The right of health insurance companies to

impose fines on health care facilities if they do not collect regulatory

fees also violates the constitutional principle of equality and the

prohibition of discrimination (Art. 1, 3 par. 1 of the Charter) and

violates the right to own property (Art. 11 par. 1 of the Charter). This

is because the relationship between insurance companies and health care

facilities is a private law relationship (civil law), whose parties are

equals. It is absurd for the law to assign to one party to a private

law relationship the right to impose fines on the other party, even if

it is for violation of a legal obligation (note: which – as describe

above – is in and of itself nonsensical, if, under the same statute,

this is income of the health care facility).
d) In this situation, it

is obvious that health care facilities de facto become – in conflict

with the text of the Act – collection agents and accountants for the

health insurance companies, without entitlement to remuneration for this

extra work. The absurdity of the situation is heightened by the fact

that the health care facility will report the collected RFs for tax

purposes.
 

These reasons lead

me also to conclude that the Constitutional Court should have annulled §

16a (and the related § 16b) of the Act, due to inconsistency with Art.

31, Art. 1, Art. 3 par. 1 and Art. 11 par. 1 of the Charter of

Fundamental Rights and Freedoms.
 

III. As regards § 17 par. 5 of the Act, I refer in full to the dissenting opinion of JUDr. Jiří Nykodým.

IV.

Beyond the framework of this text, I add several individual comments to

the reasoning of the Constitutional Court’s judgment.
 

Regarding

point 119 – the Constitutional Court’s judgment completely distorts the

purpose of Constitutional Court judgment file no. Pl. ÚS 2/08, which

stated that the obligation to pay so-called regulatory fees remained

untouched. This was a judgment that “renewed” the payment of sickness

insurance benefits for the first 3 days of illness. The point of

judgment Pl.ÚS 2/08 was that previously, patients did not receive

insurance benefits for the first 3 days of illness, and in addition had

to pay regulatory fees; that is precisely what the judgment criticized.
 

Regarding

point 125 – As regards judgment file no. Pl. ÚS 14/02, it is absolutely

impossible to draw from the dissenting opinions (in which I shared) any

argument for preserving the RFs, as they are established in the cited

Act.
 

Regarding point 127 – I

have already stated above that the RFs collected by a health care

facility are not, in fact, its income, because the health insurance

companies take them into account, i.e. in practice they reduce the

payments they make to the health care facilities.
 

Regarding

point 131 – The opinion that it is up to the legislature, which subject

it will authorize to impose public law sanctions … (here: to impose

fines on health care facilities) is completely unacceptable. Here I

refer to point II., let. c) of this dissenting opinion. The opinion

presented in the judgment completely overlooks fundamental civil law

principles, because it ignores the fact that there is a relationship of

equals between an insurance company and a health care facility.

 



Dissenting opinion of Constitutional Court Judge Pavel Holländer

The

term “fee” is used in legal terminology to identify a public law

payment, the purpose of which is to serve as motivation for the subject

seeking a certain service by a public authority (i.e., pursuing the aim

of the service being reputable, non-abuse of public power, e.g., with

court fees in the judicial system), and also plays the role of a partial

economic equivalent for the public authority’s services (as stated in a

classic of Czech civil procedure V. Hora, Československé civilní právo

procesní. Díl II. [Czechoslovak Civil Procedure Law. Part II.], Praha

1923, p. 71, according to which, on the one hand the judiciary “may not

be a profit-generating enterprise,” and on the other hand there should

not be “litigiousness, abuse of the court and court proceeding, and thus

damage to the whole.”). An illustration of these purposes is the

express formulation of them in the explanatory report to the government

bill proposing the Act on Court Fees (publication 476), adopted by the

Czech National Council on 5 December 1991 and promulgated as no.

549/1991 Coll.: “The task of legal regulations that regulate the

calculation and collection of court fees is also to ensure, through

appropriate levels of fees, coverage of part of the expenses that the

state incurs by maintaining a judiciary, and also to limit the filing of

certain poorly formed petitions to open court proceedings. It is also

their role to encourage the obligated parties to fulfill their

obligations vis-à-vis their fellow citizens and other subjects.”
 

The

majority vote relativizes the definition of the term “fee” with

references to expert sources, or some legal regulations. However, the

study by K. Čakrt, Poplatky [Fees], in: Slovník veřejného práva

československého, III [Dictionary of Czechoslovak Public Law, III], Brno

1934) contains precisely the opposite claim than the authors of the

majority opinion ascribe to it. The possible difference between the term

“fee” in the expert financial sense and the financial legal sense

changes nothing about the study’s basic thesis, according to which a fee

is a public law payment. Although the argument based on government

directive no. 16/1925 Coll., on payments from telephone fees, is

somewhat archaic today, again, its content is precisely the opposite of

what is claimed. This involved a public law payment – so, under § 1 par.

2 of the government directive, “telephone fees are understood to mean:

1. subscriber fees which telephone subscribers pay in exchange for the

state giving them a telephone station to use; 2. call charges, both for

calls placed from public call boxes and for long distance calls; 3.

acceptance and registration fees, which are paid for the grant of a

concession to establish a private telephone, and equivalents for lost

telephone fees.” Finally, even the argument based on § 517 par. 2 of the

Civil Code cannot be considered appropriate. A late payment fee, which

is established in that provision, is not a price, but a penalty.
 

From

the nature of the matter (as is clarified in the dissenting opinion of

Dr. Jiří Nykodým to the same judgment, file no. Pl. ÚS 1/08), the

relationship between the patient and the health care facility is not a

public law relationship, but a private law one, so the payment in

question is not and cannot be a “fee,” but a price. I note (as was

repeatedly stated in the Constitutional Court’s case law – file no. Pl.

ÚS 39/01, Pl. ÚS 5/01), that from a general viewpoint, the Act on Prices

considers acceptable reasons for introducing price regulation to be

jeopardizing the market by the effects of limiting economic competition

or an extraordinary market situation (§ 1 par. 6 of Act no. 526/1990

Coll., on Prices, as amended by later regulations). In this regard, the

legal framework fully corresponds to the paradigms of democratic

economic thinking (see P. A. Samuelson, W. Nordhaus, Ekonomie

[Economics], Praha 1991). In other words, grounds for a constitutionally

acceptable price regulation exist when the market does not

spontaneously generate prices (e.g., when a dominant competitor is

present), but the grounds cannot, by definition, be the “reputability of

a private law act.” Under Art. 31 of the Charter of Fundamental Rights

and Freedoms (the “Charter”), interpretation of which must take into

account Art. 41 par. 1 and also Art. 4 par. 4 of the Charter – otherwise

Art. 31 of the Charter would be empty from a constitutional viewpoint,

without normative content, or only a delegating provision (see file no.

Pl. ÚS 23/98) – the legislature is thus authorized to classify health

care in terms of its being covered by public health insurance, or

covered by direct payments (also with the possibility of contractual

insurance). This legal opinion also follows from judgment file no. Pl.

ÚS 14/02, under which the prohibition on accepting direct payments

applies primarily to the performance of payment-free health care itself,

as well as the provision of that care, i.e., again, payment-free care,

while nothing prevents collecting direct payment from insured persons

for health care provided beyond the framework of conditions for

payments-free care. In the Constitutional Court’s opinion, expressed in

the judgment, § 11 par. 1 let. d) of the Act on Public Health Insurance

emphasizes only protection of the sphere of payment-free health care

form attempts to violate its integrity and narrow its scope.
 

Likewise,

in relation to Art. 31 of the Charter we can imagine direct payment for

services (again, with the possibility of contractual insurance) that

are not a direct component of health care (see, analogously, judgment

file no. Pl. ÚS 25/94, in which the Constitutional Court stated,

regarding Art. 33 par. 2 of the Charter: “It is obvious that

payment-free education cannot mean that the state will bear all expenses

that citizens incur in connection with exercising the right to

education. Thus, the state can require payment of some expenses in

connection with exercising the right to education, and the government is

undoubtedly entitled to such steps. This does not, under any

circumstances, cast doubt on the principles of payment-free education at

elementary and secondary schools.”). However, in my opinion, the

regulation in question cannot be subordinated under any of these

alternative interpretations of Art. 31 of the Charter. In response to a

question concerning the purpose of the legal regulation of regulatory

fees posed by the author of this dissenting opinion at the hearing held

on 16 April 2008, the witness Ing. Mirek Topolánek, Prime Minister of

the Czech Republic, referred to the need to economically rescue the

public health insurance system. In his response he did not cite as

another purpose of regulatory fees ensuring (paying) services related to

health care that are not directly part of it (e.g., administrative

costs). Similarly, in response to a question from Judge JUDr. Balík

concerning activities related to health care (providing food and

clothing in hospitals, paying for doctor’s travel on public

transportation to visit patients – note that house calls are part of

outpatient care under § 18 par. 1 of Act no. 20/1966 Coll. – cleaning of

doctors’ offices, equipment repair), the witness MUDr. Tomáš Julínek,

the Minister of Health, stated that these cases do not involve health

care as such, and referred to the shortcomings of Act no. 20/1966 Coll.,

and did not connect covering payment of these services with the purpose

of regulatory fees. I must note that, according to the explanatory

report to the draft Act on Stabilization of Public Budgets (publication

222), and according to the presentation by the Minister of Health in the

Chamber of Deputies of the Parliament on 6 June 2007, the purpose of

regulatory fees is to limit overuse of health care, to introduce an

instrument for people to become aware of its value, and, in the case of

fees for hospital care the purpose is to partly cover the expenses

connected to hospitalization. (“Regulatory fees are not only an

instrument to limit waste of funds from public health insurance. They

are a psychological breakthrough, and the first step in health care

reform, which should strengthen and equalize the doctor-patient

relationship, and will also lead citizens to be more responsible when

making use of health care, which, even when payment-free, is not for

free.”)
 

However, the

construction introduced by the Act introduces contradictions. A fee is a

public law payment – this concept of its legal nature corresponds not

only to the legislative description (regulatory), but also to the aims

declared by its government proponents. If we accepted a construction

under which the relationship between a patient and a health care

facility (health care provider) is thus a public law relationship and

not a private law one (e.g., for the nature of the fees and for the

public law nature of health insurance, from which health care is paid),

then that construction conflicts with the fact that public law fees are

the income of private subjects (health care providers).
The judgment

responds to these unclear points with the claim that regulatory fees are

a concept (category) sui generis. This argument is reminiscent of a

passage from the famous book by Patrick Ryan, “How I Won the War,” the

Goodbody sidestep. It is reminiscent of the actions of a chess player

who moves a knight off the board and acts as though he is continuing the

game according to the original rules. If I move the knight of the

board, I cannot continue to claim that I am continuing the game

according to the original rules; I must at least try to define new

rules. However, that did not happen in the present matter.
 

Because

of the foregoing, i.e. because of the fact that the Constitutional

Court’s legal opinion stated in judgment file no. Pl. ÚS 25/94, cannot

be applied to evaluate the legal regulation in question, I consider it

to be inconsistent, not only with Art. 31 of the Charter, but also with

the maxim of certainty, understandability, and clarity, which the

Constitutional Court, in settled case law, includes in the protection of

a law-based state (Art. 1 par. 1 of the Constitution).
 

However,

let use hypothesize a situation reminiscent of the joke about Radio

Yerevan. A listener asked the station if it was true that Ivan Ivanovich

Ivanov won a hundred thousand rubles in the lottery. He received the

following answer – Yes, it’s true, but not completely precise. That, is,

it wasn’t Ivan Ivanovich Ivanov, but Mikhail Mikhailovich Mikhailov,

and it wasn’t a hundred thousand rubles, but a bicycle, and you can’t

exactly say that he won it in the lottery, but that someone stole it

from him when he left it standing outside the pub ….
 

So,

in our case, let us assume that the fee is not a fee, but a price; let

us also assume that the purpose for introducing it, as declared by the

norm-creator and explicitly stated in the text of the Act (“regulatory

fee”) is a misunderstanding, and it is not a matter of ensuring serious

private will in a private law relationship, but partial payment of

health care paid outside public health insurance. Let us also assume

that § 16a of the Act on Public Health Insurance is a special provision

in relation to § 13 and 15 of the Act, which, under Art. 31 of the

Charter is that legal provision that provides partial coverage of health

care provided, or the “conditions” under which “citizens have a right

to payment-free health care on the basis of public health insurance,” or

to payment of the remaining costs of health care from the public health

insurance system.
 

The

purpose and significance of Art. 31 of the Charter and one of the social

rights guaranteed by the constitutional order and enshrined in it, is

to ensure for all citizens (and, under Art. 3 par. 1 of the Charter,

regardless of their social origin or property) a level of health care

that preserves human dignity through a public health insurance system

that should be based on harmonizing the principles of individual

insurance and social solidarity. I must repeat that interpretation of

Art. 31 of the Charter must take into account both Art. 41 par. 1 and

also Art. 4 par. 4 of the Charter.

 

Otherwise,

from a constitutional viewpoint, Art. 31 of the Charter would be empty,

without normative content, or only a delegating provision.
When the

majority vote argues in favor of the constitutionality of “regulatory

fees’ in health care on the basis of historic illustrations of how

health care was paid for (the Code of Hammurabi, payment of medical care

and medicines in the Middle Ages “without any guarantee of health,”

etc., this is really an a-historical argument. Historical justification

carries weight today only on condition that the contexts (cultural,

social, or technical, economic, etc.) for the creation and functioning

of the compared institutions are also comparable. Otherwise, that

argument must be considered deceptive, or, in Aristotelean terminology,

sophistic. Moreover, that historical excursion also contains incorrect

data. For example, it states that “Social rights, or rights connected

with the provision of medical care, were not introduced in European

constitutions until the 20th century. It first happened in the so-called

Stalinist Constitution of the Unions of Soviet Socialist Republics,

adopted by the 8th Extraordinary Congress of Soviets of the USSR on 5

December 1936, or in Chapter X, Art. 120.” We can assume, that if the

authors of the majority opinion had drawn on sources other than the

works of D. Pelikán, they could not then avoid, e.g., the Weimar

Constitution of 1919, which enshrines social rights in Art. 141 et seq.,

and Art. 151 et seq., and in Art. 161 expressly establishes the state’s

obligation to establish a system of statutory insurance in order to

protect health, as well as other aims (capacity to work, protecting

motherhood, old age, illness, etc.). In any case, a system of statutory

health insurance was introduced in Germany by a special statute adopted

by the Imperial Assembly on 15 June 1883, with effect as of 1 December

1884. The Imperial Decree of 17 November 1881, which preceded it,

contains this purpose for statutory health insurance: “it would be

necessary to correct social damage not only by repression of socially

undemocratic excesses, but by the same degree of positive support for

the well-being of workers”; the purpose of introducing statutory health

insurance is supposed to be ensuring “internal peace,” and the new

system “is based on the moral basis of Christian national coexistence.”
 

One

could suggest to the authors of the majority opinion, from a

doctrinaire viewpoint, to refer, rather than to the writings of D.

Pelikán, to one of the creators of modern European democratic

constitutionalism, Georg Jellinek, and his famous work, System der

subjektiven öffentlichen Rechte [System of Subjective Public Rights]

(1892), in which Jellinek introduces into European constitutionalist

thinking the category of positive status (status civitatis) – in

contrast to negative status – which presents the constitutional position

of an individual, containing his subjective, public rights for certain

performance vis-à-vis the state (among them, he includes the issue of

“public health care” – cited from the 2nd edition, Tübingen 1905, p.

115).
 

However, let us

return from wandering through history to current realities. The

provision of § 16a of the Act on Public Health Insurance establishes a

number of “regulatory fees.” In terms of Art. 31 and Art. 4 par. 4 of

the Charter, it is necessary to review whether, in the aggregate, it

does not create a barrier for certain groups of citizens, limiting their

access to dignified health care. This viewpoint for review arises from

the maxim that the Constitutional Court stated in judgment file no. Pl.

ÚS 42/2000 in connection with evaluating the constitutionality of the

election system for elections to the Chamber of Deputies of the

Parliament of the Czech Republic: “However, in the opinion of the

Constitutional Court, in this particular case, i.e. in the matter at

hand, increasing the number of election regions …, setting the lowest

number of mandates in a region … and the method of calculating the

shares and allocating a mandate with the modified d’Hondt formula … in

its aggregate represents a concentration of integration elements which

result in abandoning the continuum, still capable of registering at

least an inclination to the proportional representation model.”
 

A

legislative solution to the negative effects of introducing “regulatory

fees” in one of the possible contexts is § 16b par. 1 of the Act on

Public Health Insurance, under which, if the total amount paid by the

insured person, or on his behalf by his legal representative, for

regulatory fees under § 16a par. 1 let. a) to d) and for supplemental

payments for prescribed medical preparations or foods for special

medical purposes, partially covered by health insurance, paid in the

Czech Republic, exceeds the limit of CZK 5,000 in a calendar year, the

health insurance company is required to pay the insured person or his

legal representative the amount by which that limit was exceeded. The

limit includes supplemental payments for partially covered medical

preparations or foods for special medical purposes only in the amount of

the supplemental payment for the cheapest medical preparations or foods

for special medical purposes available on the market, containing the

same medical substance and taken in the same manner. This does not apply

if the prescribing doctor wrote on the prescription that the prescribed

medical preparation cannot be replaced (§ 32 par. 2); in that case, the

full amount of the supplemental payment counts toward the limit.
 

Under

§ 17 par. 6 of the Act on Public Health Insurance, a negotiation

proceeding with representatives of the General Health Insurance Company

of the Czech Republic and other health insurance companies and the

relevant professional associations of health care providers, as

representatives of contractual health care facilities, will agree on the

value of points, the amounts of compensation for health care paid from

health insurance, and regulatory limits for the following calendar year,

and if no agreement is reached on regulatory measures, the Ministry of

Health shall decide by decree. That decree is no. 383/2007 Coll., whose

appendix no. 2 for health care provided by general practitioners for

adults and general practitioners for children and youth, provides in

point D 1.1: “If the average payment for medical preparations and health

care aids prescribed by a health care facility, calculated per one

insured person, exceeds by more than 20% the nation-wide average payment

for prescribed medical preparations and health care aids, the health

insurance company is entitled to apply a regulatory withholding up to

25% of the excess. The average payments per one insured person includes

supplemental payments for medical preparations where the prescribing

doctor ruled out replacement under § 32 par. 2 of the Act.” (sic! –

underlined by P. H.) The regulation is analogous, or even stricter, for

specialists (appendix no. 3 to decree no. 383/2007 Coll., point D 1.1):

“If a health care facility reaches average costs for one individual

insured person for prescribed medical preparations and health care aids

in the relevant six months of 2008 that is more than 110% of the average

payments for one individual person for prescribed medical preparations

and health care aids in the relevant six months of 2007, the health care

company may, after the end of 2008, reduce reimbursement to the health

care facility by 40% of the increased expenses for prescribed medical

preparations and health care aids (over 110%), in the manner described

in the contract between the health care facility and the health

insurance company.

 

The

average payments for one individual insured person includes

supplemental payments for medical preparations where the prescribing

doctor ruled out replacement under § 32 par. 2 of the Act.” (sic! –

underlined by P. H.)
 

This

means that ensuring dignified health care under the existing legal

regulation is to the detriment of the provider! Yes, the doctor, or the

health care facility, would have to pay it from his/its own funds.

Commenting on the unconstitutionality of such a legal regulation, the

Constitutional Court said the following in judgment file no. Pl. ÚS

3/2000 on rent regulation: “as a result of the existing legal framework,

there are social groups or persons in our society today who pay from

their own funds something which, in the interest of fulfilling Art. 11

of the International Covenant on Economic, Social and Cultural Rights,

is supposed to be ensured by the state.
 

In

terms of § 17 par. 6 of the Act on Public Health Insurance, in

connection with point D 1.1, appendices no. 2 and 3 of decree no.

383/2007 Coll. the “limit” under § 16b par. 1 of the Act on Public

Health Insurance appears to be more a deceptive institution than a

realistic guarantee of access to dignified health care.
 

The

majority opinion also argues in this regard with reference to § 16a

par. 2 let. d) of the Act on Public Health Insurance, under which a

regulatory fee is not paid by an insured person who presents a decision,

notice, or confirmation, no more than 30 days old, issued by a body

providing assistance in material need, about the benefit payment that is

provided to him under a special regulation. For those who do not meet

these conditions, according to the majority opinion, we can “conclude

that introducing regulatory fees” is “unpleasant’ for them, but “does

not make their humble existence impossible,” or, regulatory fees do not

have “a general strangling effect” and “do not realistically make health

care or health care aids inaccessible for anybody.”
 

Let

us illustrate this conclusion with the example of an old-age pensioner.

Under § 2 par. 2 let. a) of Act no. 111/2006 Coll., on Assistance in

Material Need, as amended by later regulations, a person is in material

need if, after deducting appropriate expenses for housing, his income

does not reach the minimum living amount. Under § 24 par. 1 let. b) of

the Act, the minimum living amount for persons whose efforts to increase

income by working are not reviewed (who, under § 11 par. 3 let. b)

include old-age pensioners), is the minimum subsistence amount increased

by half of the difference between a person’s living minimum and

subsistence minimum. Under § 2 and § 5 par. 1 of Act no. 110/2006 Coll.,

on the Living and Subsistence Minimum, as amended by later regulations,

an individuals’ living minimum is CZK 3,126 per month, and an

individual’s subsistence minimum is CZK 2,020 per month. It follows that

the condition for acknowledging the status of material need for an

old-age pensioner is a situation where his pension does not exceed the

appropriate housing expenses by CZK 2,623 (that means CZK 87.43 per day

for food, clothing, hygienic need, transportation, or other living

needs). In view of the relationships of an amount of ca. CZK 90 to

current prices of food, clothing, hygienic need, transportation, or

other living needs, I believe that for persons (pensioners) whose income

is not much above the limit of material need, introducing regulatory

fees is a real barrier to access to dignified health care.
 

Finally,

the basic argument in the judgment’s reasoning is a restrictive

definition of the proportionality test when evaluating the

constitutionality of statutory measures governing social issues,

consisting of the “reasonableness test,” or a procedure in which it is

considered sufficient for a statutory framework to be constitutional if

“at the time of this decision, the Constitutional Court does not

consider it proven that introducing a regulatory fees would clearly make

it impossible to reach the aim pursued,” and “an a priori condemnation

that presumed, without a certain amount of respect for the work of

experts who prepared the reform plan, that achieving the aim pursued is

impossible, would be … to deny the possibility of any empirical

arguments pro futuro.”
 

This

conclusion in the judgment can be compared against the testimony of

MUDr. Tomáš Julínek, according to the record of the public session of

the plenum of the Constitutional Court of 16 April 2008. The deputy

chairwoman of the Constitutional Court, JUDr. Wagnerová, asked the

following question concerning legislative analysis of the legal

framework being prepared: “Did you investigate the effects of

introducing individual or all these fees on individual social groups or

social classes, specifically, families with children, seniors with

average pensions, specifically seniors in various facilities, old-age

homes, as the ugly saying goes, and with what result. If you conducted

such an analysis, do you have available that analysis, studies, etc. on

the effects on individual social groups?” The witness answered: “We had

to rely on macroeconomic assumptions, i.e. in comparable countries,

according to income structure, i.e. the level of fees, which we set at

thirty crowns, is lower than in the countries that clearly declared or

found in their studies that the fee does not make health care

inaccessible. That was the first matter. Others are, of course, studying

individual groups and measures that prevent the accumulation of fees,

and these include the limit and that provision about material need.

However, far more important, in the Czech Republic, until the end of

2007, before the Act, called the backpack, was adopted, the social

situation and participation of patients in the Czech health care system

was not tracked.” In response to that, deputy chairwoman of the

Constitutional Court JUDr. Wagnerová commented, “so you did not conduct

an analysis,” to which the witness commented, “because it was not

possible.” (sic! – underlined by P. H.) JUDr. Wagnerová’s next question

then addressed the legislative intentions concerning the five thousand

crown limit, to which MUDr. Tomáš Julínek stated: “the Ministry of

Health, my advisers and deputies, are experts on health care, the best

in the country that we have. They proposed this method. But because I

know that in the CR we cannot get information about salaries and

pensions into the health care system, as, for example, in other

countries, this method would not work. It is possible, if it worked,

that we could set it up that way. At the same time, I would like to

state that, when I say that I will evaluate these fees after half a

year, that means also evaluating that limit, whether it is set correctly

and whether there are not individually … some errors.”
 

The

extensive quotes from the protocol of the hearing of 16 April 2008

indicate that setting limits for regulatory fees in relation to their

affordability for certain groups of people was not based on any

empirical analysis, was based on suppositions and the assumption of

subsequent evaluation of the effects of the regulation. The majority’s

claim, that “an a priori condemnation that presumed, without a certain

amount of respect for the work of experts who prepared the reform plan,

that achieving the aim pursued is impossible,” then sounds somewhat

surprising when contrasted with the court’s factual findings. I believe

that because of the foregoing the legal regulation did not meet even the

minimum requirements of the proportionality test that are contained in

the judgment’s reasoning.
 

Thus,

Art. 31 in connection with Art. 4 par. 4 of the Charter creates space

for the legislature to adopt a statutory regulation for partial payment

of health care outside the system of public health insurance, although

after meeting the following safeguards:
- in the aggregate these payments may not present a barrier to access to dignified health care,
-

the establishment of these payments may not be a surprise, so it must

contain mechanisms and sufficient time to prepare for them (by a

state-established, or at least state-controlled insurance system and

sufficient time between the regulation becoming valid and going into

effect).

Due to the foregoing, I consider the contested

provisions of the Act on Public Health Insurance to be inconsistent, not

only with Art. 1 of the Constitution, but also with Art. 31 in

connection with Art. 4 par. 4 of the Charter.
 




Dissenting Opinion of Constitutional Court Judge Jan Musil

I

disagree with the verdict of denial and with the reasoning in judgment

file no. Pl. ÚS 1/08. Under § 14 of Act no. 182/1993 Coll., on the

Constitutional Court, as amended by later regulations, I am filing a

dissenting opinion to the judgment:
 

1.

I believe that the entire Act no. 261/2007 Coll., on Stabilization of

Public Budgets, should have been annulled, because it was not adopted in

a constitutionally prescribed manner. It follows logically from this,

that those parts of the Act separated out for an independent proceeding

under file no. Pl. ÚS 1/08 (financing health care from public health

insurance), should also have been annulled.
 

2.

I explained the grounds that lead me to that conclusion in detail in

the dissenting opinion that I filed, together with Judge Pavel Rychetský

to judgment file no. Pl. ÚS 24/07 (concerning the tax part of the Act

on Stabilization of Public Budgets), to which I refer in full. The parts

of the Act evaluated in this proceeding suffered all the defects set

forth in that dissenting opinion.
 

3.

Thus, only in summary, I repeat that the manner of discussing and

passing the entire Act no. 261/2007 Coll., on Stabilization of Public

Budgets, violates the elementary and essential requirements for a

statute so grossly that this violated the very principle of a law-based

state enshrined in the preamble and in Article 1 par. 1 of the

Constitution. Likewise, this violated the principles of the separation

of powers and state democracy (Preamble and Article 1 par. 1, Article 2

par. 3 of the Constitution) and the principle of protection of

minorities in political decision-making (Article 6 of the Constitution).
 

4.

In my opinion, introducing regulatory fees in connection with the

provision of health care also violated Article 31 of the Charter of

Fundamental Rights and Freedoms (the “Charter”), which guarantees

payment-free standard health care for participants in public health

insurance.
 

5. By using the

linguistically quite certain and exact adjective “payment-free” in

Article 31 of the Charter, the framers of the constitution clearly

stated their intent to ensure for citizens general access to health care

without any payment whatsoever. Using mere linguistic interpretation,

one can conclude quite unambiguously that the constitutional framers did

so consciously, and that by choosing this language they wanted to

distinguish completely payment-free health care from other cases of

social rights contained in other provisions of Chapter Four of the

Charter, which guarantee the fulfillment of a social right only “in the

appropriate scope” (e.g., Article 26 par. 3, and Article 30 par. 1 of

the Charter). It goes against the elementary rules of linguistic

interpretation to interpret the adjective “payment-free” health care as

“paid” health care, including in a situation where the payment is to

apply only to part of the health care.
 

6.

In my opinion, it goes against the principle of being payment-free, if a

patient to be subject to regulatory fees at the very point of “entry”

into the health care system. For a certain group of the socially

handicapped (even if only for a small part), even small fees can create a

barrier that these citizens will not be able to overcome, and they will

not receive even basic health care – despite the fact that they were

participants in the health care system, and took part (sometimes all

their lives) in financing it on an ongoing basis.
 

I

do not consider satisfactory the argument in point 118 of the

judgment’s reasoning, that this “exclusion” of a citizen from the public

health insurance system can be prevented by means of social care

[obtaining confirmation of material need under § 16a par. 2 let. d) of

the Act on Public Health Insurance]. Such bureaucratic procedures are

very burdensome for ill people; they can postpone necessary treatment,

and, especially, this “begging” for payment-free health care for reasons

of material need is degrading and undignified. The right to

preservation of human dignity is protected by Article 10 of the Charter.
 

7.

I cannot agree with the opinion in points 92 and 93 of the judgment’s

reasoning that introducing regulatory fees by law is allegedly covered

by the license contained in Article 41 par. 1 of the Charter. Article 41

par. 1 does state that the social rights therein “can be claimed only

within the confines of the laws implementing these provisions,” but,

after all, that cannot be interpreted to mean that the legislature can

deny a constitutionally enshrined right and set up the de facto opposite

of it. In my opinion, the legislature does not have the right to

“implement” the right to payment-free health care by introducing paid

health care. Even the “wide space for the legislature in choosing

various “solutions” cited in point 92 of the judgment’s reasoning does

not allow the legislature to set up the opposite of what is explicitly

enshrined by a constitutional norm.
 

8.

I fully acknowledge that a realistic view of the matter, taking into

account the exceptionally expensive nature of health care, as well as

the fact that in the wide range of health care services we can

distinguish those that are completely essential for protecting health

and those which, on the contrary, are not essential, or can be replaced

by other means, allows for certain segments of health care to be subject

to payment by patients, even in the present constitutional situation.

However, that can apply only to “above standard” services (e.g.,

cosmetic surgery), food and accommodation in hospitals, or surcharges

for selected medicines. In contrast, basic (standard) health care and

medicines are supposed to be provided completely payment-free.
 

9.

I do not agree with the thesis in point 102 of the judgment’s reasoning

that allegedly “the a judgment could be denied [sic – petition?] for

reasons of maintaining restraint” and that therefore further

constitutional law testing (namely, the proportionality test) was

conducted somehow “in addition” and perhaps need not have followed at

all (analogous arguments are presented in point 134 of the judgment’s

reasoning). This reasoning is apparently guided by the consideration

that the selected regulation requiring payment for health care is a

“political question,” the solution of which is exclusively within the

discretion of the legislature and thus is not subject to review by the

Constitutional Court.
In my opinion, that conclusion is incorrect on

principle. Certainly, we must recognize that social rights, in contrast

to “classic” civil and political rights, display various unique

features, and also that protecting them is more complicated. However,

contemporary legal knowledge, as well as case law here and abroad, today

mostly recognize that social rights enjoy constitutional law and

international law protection, and are so-called justiciable; this is

undisputed with the “core” commitments of social rights (cf., e.g.,

Kratochvíl, Jan: Judikovatelnost sociálních práv: nějaké mezery?

[Justiciability of social Rights: Any Gaps?] Právník [The Lawyer], no.

11/2007, pp. 1161-1188). It would be not only a degradation of social

rights, but also a denial of their constitutional law nature for the

Constitutional Court to even think about denying its protection to these

social rights.
 

Insofar as

the judgment’s reasoning refers to Constitutional Court judgments file

no. Pl. ÚS 24/07 and Pl. ÚS 2/08, that analogy is not appropriate,

because the presently adjudicated subject matter is different (those

opinions concern the issues of taxes and sickness insurance).
 

10.

I consider the arguments in points 96 and 97 of the judgment’s

reasoning to be completely inappropriate and a-historical. What sense

does it make to compare modern social rights of today’s citizens, based

on diametrically different social conditions, with the slavery-era Code

of Hammurabi from the 18th century B.C.? Why is it necessary to compare

the contemporary Czech legal framework to the Stalinist Constitution of

the USSR from the 1930s or to previous Czechoslovak constitutions from

the times of the communist regime?
If the Constitutional Court

considered it desirable to conduct a certain historical comparison, it

would have been more appropriate to state that the entire concept of

social rights, including the right to dignified health care is the fruit

of the European Christian and Humanist tradition. Its beginnings can be

laid at the end of the 19th century; it reached its greatest flowering

in the second half of the twentieth century, e.g., in the Scandinavian

countries, in Germany, France, and other western European countries,

where it contributed to the long-term stability and prosperity of the

entire society. The scope of these social rights is very different in

individual countries; thus, it is obvious that in recent times the

concept of a social state has gone through a certain crisis, creating

the need for legislative and economic reforms.
 

11.

If the Czech constitutional framers decided to enshrine in the Charter

of Fundamental Rights and Freedoms a wide range of economic, social, and

cultural rights, typical for the concept of a social state, it

undoubtedly did so in the belief that these rights are essential for

really full-status citizenship, for every citizen’s ability to “live the

life of a civilized being according to the standards prevailing in

society” (British sociologist T. H. Marshall in his essay Citizenship

and Social Class, 1950).The guarantee of a certain minimum scope of

consumption and a guarantee of a certain degree of social certainty are

considered an essential prerequisite for a dignified life. A social

state, founded on the modern mechanisms of civic solidarity (exceeding

the traditional forms of family, tribal, or group solidarity), e.g., on

health care insurance financed partly from public funds, balances

conflicts of interest and mutes sharp social conflicts, whereby it also

de facto contributes to the smooth functioning of a market economy. On a

cultural level, the social state is founded on humanitarian ideals such

as protection of the weak and support for the needy. The marked

benefits of the social state are seen in strengthening internal social

cohesiveness, which is essential to the ability to counter threats to

civilization.
 

12. The Czech

constitutional framers enshrined a very high standard of social rights

in the Charter, in some respects higher than foreign standards. One

example of this high standard is precisely the right to payment-free

health care being evaluated here. Of course, this internationally “above

standard” framework is possible, and is not a relevant argument for

today’s legislature, referring to different foreign models, to not

observe the qualitatively higher level of the Czech constitutional

framework, strengthening citizens’ rights.
 

If

some Czech political representatives hold the opinion that the present

level of constitutionally enshrined social rights in the Czech Republic

is too high, economically unsustainable, and requires reform, they of

course have the opportunity to seek a constitutional change, through the

political process. In open political discussion on can, or course,

present expert, substantiated arguments that payment-free health care is

unsustainable – despite the fact that the gross national product and

the overall wealth of the society are increasing, and despite the fact

that the health insurance system is experiencing multi-billion crown

surpluses.
 

We can certainly

recognize that such arguments may receive the strong voter support that

will be needed to push through constitutional amendments. However, in my

opinion, we cannot permit the “re-writing” of constitutional

regulations using ordinary laws, especially in a situation where the

parliamentary discussion in the Czech republic on these issues takes

place in an untrustworthy manner, is not supported by substantiated, and

even an elementary social consensus is not reached.
 

13.

The somewhat unclearly formulated consideration in point 98 of the

judgment’s reasoning, that in formulating Article 31 of the Charter

there may have been conflict “between the will of the legislature and

the political reality of the time” is certainly not a constitutional law

argument in favor of introducing regulatory fees in health care.
 

14.

I cannot agree with how the judgment’s reasoning evaluates certain

factual circumstances connected to the introduction of regulatory fees

and the results of presentation of evidence conducted before the

Constitutional Court by the testimony of Prime Minister Mirek Topolánek

and Minister of Health Tomáš Julínek.
 

I,

personally, was not convinced that the “evidence presented” indicated

that regulatory fees limit overuse of health care paid from public

health insurance, as is claimed in points 107 and 124 of the judgment’s

reasoning. This thesis of “overuse” of social rights is among the

favorite, ideologically tinted catchphrases of the critics of social

rights; but I did not notice that any convincing evidence of this claim

was presented to the Constitutional Court (e.g., statistical data based

on a significant sample of the population and a sufficiently long

observation period). The claims presented on the reduced number of

doctor visits or number of medicines collected from pharmacies after the

introduction of regulatory fees are based on a very short observation

period, do not take into account the factor of “stocking up” on

medicines at the end of 2007, and do not rule out the possible

interpretation that the decline in the number of doctor visits and

consumption of medicine could also have undesirable causes (the

“transfer” of an actual illness, non-treatment of persons who really

need it).
 

I also think that

there has not been evidence to support the claim in point 130 of the

judgment’s reasoning, that “the effect of more economical handling of

medicines can already be seen” or that “the effects of this form of

solidarity have already been seen in practice, in specific cases of the

serious ill, since the contested legal regulation went into effect.”

These claims at most support the facts that fewer medicines were picked

up and that certain citizens already met the conditions for

reimbursement of payments over CZK 5,000, but not that this is a

manifestation of increased economy or that the higher payments were or

will be actually returned to the patients.
 

15.

I am not convinced that the evidence presented supports a claim that

introducing regulatory fees ensures “higher quality actual

implementation of Article 31 of the Charter“ (point 110 of the

judgment’s reasoning), which is, among other things, drawn as a

consequence of introducing the limit on regulatory fees of CZK 5,000 per

year.
 

For me, the thesis

that this will “strengthen solidarity among patients” in point 124 of

the judgment’s reasoning, brings a somewhat surprising aspect into the

entire concept of social rights. Until now, I believed (apparently

natively), that social rights are more an expression of solidarity

between the health and the ill, the young and the old, the strong and

the weak, not an expression of solidarity between the ill and those even

more ill.
 

16. The

Constitutional Court has already interpreted the term “payment-free”

medical care” in two of its plenary judgments (Pl. ÚS 35/95 and Pl. ÚS

14/02). The interpretation of that term in the presently adjudicated

matter deviates from those previous judgments.
 

A

change of a previous legal opinion is possible, but the condition in §

13 of the Act on the Constitutional Court must be observed, i.e. at

least nine judges of the Constitutional Court present must vote in favor

of the change. That did not happen in this matter, because only eight

judges voted to adopt the judgment.
 

17.

From a technical legislative viewpoint I consider it nonsense to

describe these regulatory payments as fees. The payments are the income

of a health care facility, but the legal relationship between a patient

and a health care facility is not a public law, but a private law

relationship. Thus, this is more of a price, but it lacks any

equivalence whatsoever with the health care service or medicine paid

for.
 

Nor does this payment

acquire a public law character by the claimed transfers of money between

health insurance companies and health care facilities or pharmacies.

The alleged regulation of the flow of money between these subjects,

which is supposed to take into account the income from regulatory fees,

is so complicated and non-transparent, that the legal regulation adopted

violates the maxim of certainty, understandability and clarity of a

legal norm that belongs to the framework of a law-based state under

Article 1 par. 1 of the Constitution. In my opinion, this constitutional

norm too was violated in this matter.
 

18.

I also consider unconstitutional the amended § 16a par. 6 to 8 of Act

no. 48/1997 Coll. These provisions contain an obligation for health care

facilities and pharmacies to collect regulatory fees and disclose

relevant records and accounting data to health insurance companies; if

they do not fulfill these obligations, a health insurance company can

fine them up to CZK 50,000.
In my opinion, these provisions are

inconsistent with Article 1 of the Charter, which enshrines equal

rights, and with Article 11 par. 1 of the Charter, which protects the

right to own property, and provides that the property rights of all

owners enjoy the same statutory content and protection.
 

Health

insurance companies, on one side, and health care facilities and

pharmacies, on the other side, are private law subjects, whose legal

relationships are set contractually. Their contracts do not indicate a

commitment to collect regulatory fees, moreover one intended for the fee

recipient itself, not the right of an insurance company to impose fines

for failure to collect these amounts. I cannot agree with the opinion

expressed in point 131 of the judgment’s reasoning that “it is up to the

legislature, which subject it will give the power to impose a public

law penalty.” It goes against the logic of the matter and the principles

of a law-based state for the law to entrust the power to impose a

public law penalty, in the form of a relatively palpable monetary fine,

to one of the parties of a civil law relationship, which, of course, has

an interest in the content of that relationship.
 

19.

I cannot share “the respect for the work of experts who prepared the

reform plan,” expressed in point 111 of the judgment’s reasoning. These

experts (maybe?) presented to the legislature and to the public the

subsequently implemented idea that one of the ways to solve the problems

of financing Czech health care is to require payment for premature

babies in incubators, and for health care for small children and

seniors; this achieved income which is quite negligible in terms of the

overall scope of financing health care. Citizens would apparently prefer

that these experts provide a satisfactory explanation of the

macro-structural problems of Czech health care, e.g., the question of

why the share of expenses for medicines in the Czech Republic, in the

level of tens of billions of crowns, is almost a third of total expenses

for health care from public funds, and why that share is roughly double

that in other developed western states.
Of course, these are

questions that it is not in the competence of the Constitutional Court

to evaluate, just as words about respect for the work of experts do not

belong in the text of the Constitutional Court’s judgment.
 




Dissenting Opinion of Constitutional Court Judge Jiří Nykodým


I

find the reasoning of the judgment’s verdict of denial lacking in

constitutional law arguments that would thoroughly deal with the

petitioners; petition for annulment of so-called regulatory fees due to

their inconsistency with Art. 31 of the Charter of Fundamental Rights

and Freedoms (the “Charter”). The text does say that “the merit of the

matter lies in the question of whether – in the petitioners’ words –

‘making virtually all health care subject to payment’ is or is not

constitutional,” but it does not compare this question with the

constitutional law framework, and resorts to a historical excursion

whose primary theme is the unquestioned fact that in the past medical

care was always paid for.
 

In

its practice, the Constitutional Court has interpreted the term

“payment-free” in terms of Chapter Four of the Charter, which governs

economic, social and cultural rights. It did so primarily in judgment

Pl. ÚS 35/93, where it considered a petition seeking the annulment of

Article I. of Act no. 190/1993 Coll., which amended § 4 par. 1 of Act

no. 29/1984 Coll., on the System of Elementary and Secondary Schools

(the Act on Schools), as amended by later regulations. This article

replace the sentence “Education is payment free,” in § 4 par. 1 of Act

no. 29/1984 Coll. with the sentence, “in schools that are part of the

system of elementary and secondary schools, citizens have the right to

payment-free education, unless the law provides otherwise.” The

Constitutional Court annulled the part “unless the law provides

otherwise” of this provision, and stated as the main reason that,

although under Art. 41 par. 1 of the Charter the rights provided in Art.

33 par. 2 of the Charter, i.e. the right to payment-free education in

elementary and secondary schools, can be exercised only within the

bounds of statutes that implement this provision; we can hardly think

that preserving the bounds of fundamental rights and freedoms would be

compatible with the unconditionality, questioned by a statutory

exception, of the right to payment-free elementary and secondary

education. In the related judgment Pl. ÚS 25/94 the Constitutional Court

considered a petition to annul government directive no. 15/94 Coll., on

payment-free provision of textbooks, instructional texts and basic

school supplies. In this directive the government set the scope in which

pupils are provided payment-free textbooks, instructional texts and

basic schools supplies. The Court denied the petition, and stated in the

reasoning that payment-free education cannot consist of the state

bearing all expenses that citizens incur in connection with exercising

the right to education. Thus, the state can require payment of part of

the expenses related to exercise of the right to education, and the

government is undoubtedly authorized to do so. This does not, under any

circumstance, cast doubt upon the principles of payment-free education

at elementary and secondary schools. In these two judgments the

Constitutional Court defined the term “payment-free” generally such that

making this right subject to a statute does not mean that a statute can

completely rule out the payment-free statutes. A statute can specify

what is payment-free and what is not.
 

The

Constitutional Court then decided within the intent of that opinion in

other judgments, which directly concerned health care, judgment Pl. ÚS

35/95, where it ruled on the annulment § 11 par. 4 of Act no. 20/1966

Coll., on Care for the Health of the People, as amended by Czech

National Council Act no. 548/1991 Coll., § 1, § 2 par. 2 and 3 and § 13

par. 3 and 5 of Czech National Council Act no. 550/1991 Coll., on

General Health Insurance, as amended by Act no. 161/1993 Coll. and Act

no. 59/1995 Coll., the Health Care Code, issued by directive of the

government of the Czech Republic no. 216/1992 Coll., as amended by

directive no. 50/1993 Coll. and directive no. 149/1994 Coll., decree no.

467/1992 Coll., on health care provided for payment, as amended by

decree no. 155/1993 Coll. and decree no. 426/1992 Coll., on payment for

medications and technical health care equipment, as amended by decree

no. 150/1994 Coll., and in judgment Pl. ÚS 14/02, where it ruled on the

annulment of part of the second sentence of § 11 par. 1 let. d) of Act

no. 48/1997 Coll., on Public Health Insurance and Amending and

Supplementing Certain Related Acts, as amended by later regulations, the

words “or in connection with provision of that care.” The judgment does

not fully deal with the reasons why the Constitutional Court deviated

from its previous legal opinion, by which it is bound, and, under § 13

of Act no. 182/1993 Coll., on the Constitutional Court, as amended by

later regulations, the “Act on the Constitutional Court,” can deviate

from it only if at least nine of the judges present agree.
 

In

this regard the reasoning refers to judgment Pl. ÚS 11/02 (published in

the Collection of Laws as no. 198/2003 Coll.) and cites part of its

statement of law: “The first possibility where the Constitutional Court

can reverse its own case law is a change in the social and economic

situation in the country, or a change in its structure, or a change in

the society’s cultural expectations. Another possibility is a change or

shift of the legal environment created by sub-constitutional legal norms

that, in the aggregate, influence the approach to constitutional

principles, without, of course, exceeding them, and above all do not

limit the principle of democratic statehood (Art. 1 par. 1 of the

Constitution of the CR). Another possibility for changing the case law

of the Constitutional Court is an amendment or supplement to those legal

norms and principles that form binding points of reference for the

Constitutional Court, i.e. those that are contained in the

constitutional order of the Czech Republic, except, of course, in the

case of amendments that violate the limits provided by Art. 9 par. 2 of

the Constitution, i.e. changes to the essential requirements of a

democratic, law-based state.” This somewhat innocently fails to mention,

that the part of the sentence cited in the judgment is preceded by this

sentence: “If the Constitutional Court itself, as a constitutional

body, i.e. a public authority, is not to act arbitrarily, the

prohibition of which also applies to the Court, because even the

Constitutional Court, or it especially, is required to respect the

framework of a constitutional state, in which arbitrariness is to the

public authorities, it must feel bound by its own decisions, which it

can reverse through its case law only under certain conditions. This

postulate can be described as an essential requirement of a democratic,

law-based state (Art. 1 par. 1 in connection with Art. 9 par. 2 of the

Constitution of the CR).” Yet this judgment does not change anything,

nor can it change anything, on the legal condition stated in § 13 of the

Act on the Constitutional Court.
 

The

Constitutional Court found itself in a unique situation that evidently

had not yet occurred in its practice – the majority wanted to deviate

from a previously expressed position (which the judgment acknowledges,

when it refers to judgment Pl. ÚS 11/02), but it did not have the

qualified majority to change an existing position of the Constitutional

Court. A minority was in favor of derogation of the contested

provisions, but it also did not have a qualified majority for such a

decision. Of course, it was not possible to do anything other than to

deny the petition, but as regards the reasoning, there was no space to

take specific positions on the consistency of the statutory regulation

with the constitutional order. There was space only to state that the

existing position of the Constitutional Court regarding the basis of the

problem presented could not be changed, and, at the same time, it was

not possible to reach a qualified majority for annulling the Act, and it

was only precisely this fact that was the grounds to deny the petition.

Only thus would it perhaps be possible that conclude that the

Constitutional Court could, sometime in the future, intervene against a

reviewed regulation with a derogatory decision, as indicated in points

113 and 115 of the judgment, because otherwise the obstacle of rei

iudicatae stated in § 35 of the Act on the Constitutional Court would

apply. Insofar as the judgment’s reasoning takes particular positions

about the constitutionality of the reviewed legal regulation, they are

the positions of a majority, but not a qualified majority, and therefore

they cannot be legally binding, and are only the opinions of the judges

who voted to deny the petition, just as the dissenting opinions are

only the opinions of judges who voted against the petition.
 

The

judgment’s reasoning is internally inconsistent. On the one hand, it

states that, “However, the existing review of a statutory regulation

permits the Court to base its reasoning only on abstract constitutional

law arguments, not on the actual effects of a statute, which it is not

possible to determine individually in proceedings before the

Constitutional Court” (point 112 in the judgment’s reasoning), and on

the other hand it refutes the petitioners’ objections about the

unconstitutionality of the reviewed regulation with individual findings,

such as the testimony of the Minister of Health or the Prime Minister.

The reasoning says that the Constitutional Court “did not find that

regulatory fees had a generally ‘strangling effect,’ and realistically

make health care or health care aids inaccessible for anybody” (point

118 of the judgment’s reasoning), without answering the question of on

what basis it was possible to reach such a conclusion, and, on the

contrary, it states, as the abovementioned sentence indicates, that the

reasoning cannot be based on the Act’s actual effects. The same can be

said about the arguments relating to fees for prescription items, where

the argument used is the testimony of the Minister of Health that the

“expected effect of more economical handling of medicines” (point 130 of

the judgments’ reasoning), without reviewing at the abstract level

whether this measure is or is not with the constitutionally guaranteed

payment-free care, especially in a situation where the universal

introduction of fees for prescription items in fact completely

eliminated the possibility that a patient would be entitled to at least

one medicine from each category that would be fully paid from public

insurance.
 

Likewise, dealing

with the petitioners’ argument that the constitutions of a number of

European states also enshrine the right to health care, in varying

degrees, contributes no fundamental arguments concerning the

petitioners’ objection that introducing fees in health care is

inconsistent with the constitutional order of the Czech Republic. None

of the constitutions of the developed European Union states guarantees

citizens a right to payment-free health care. If fees are paid in these

countries, it is because these states do not constitutionally guarantee

their citizens completely payment-free health care paid out of public

health insurance. In this, the situation in these countries is

fundamentally different from our situation. It is then not decisive what

the petitioners argue in this regard.
 

Even

the judgment’s deliberations in terms of medical ethics, referring to

the Hippocratic oath, which does not contain a commitment to

payment-free health care, do not sound convincing, because they do not

solve the question of payment, but one can quite certainly conclude from

the oath that a doctor commits to providing medical care, and cannot

condition it on the payment of some sort of regulatory fees, as is

happening in many health care facilities that introduced turnstiles. I

dare say that something like this never even occurred to Hippocrates. In

this context it is probably worthwhile to review the Hippocratic oath,

because it has a certain importance, primarily an ethical one, in

relation to the subject which the judgment discusses: “I will prescribe

regimens for the good of my patients according to my ability and my

judgment and never do harm to anyone. I will not give a lethal drug to

anyone if I am asked, nor will I advise such a plan; and similarly I

will not give a woman a pessary to cause an abortion. In every house

where I come I will enter only for the good of my patients. All that may

come to my knowledge in the exercise of my profession or in daily

commerce with men, which ought not to be spread abroad, I will keep

secret and will never reveal.” The point is that one can conclude from

the oath that providing health care cannot be conditioned on a fee paid

in advance.
 

I agree that,

“The state’s economy is a limiting factor on available medicine, not the

only one, but unquestionably a significant one. A wealthy state simply

has the resources to reduce the conflict between ideal and available

medicine to the lowest possible level.” That was said in Constitutional

Court judgment Pl. ÚS 14/02, which this judgment cites, although its

conclusions and the conclusions of the dissenting judges, with which I

fully agree, do not support the idea of introducing universal fees for

health care and means of medical treatment, as I will attempt to explain

below.
 

The judgment finds a

fundamental conflict between the position of the petitioners, who admit

that requiring payment for “hotel services,” i.e. setting a fee for

accommodation and food in a hospital, “need not exceed the bounds of

constitutionality,” and the fact that they simultaneously propose

annulling § 16a par. 1 let. f). However, the judgment’s arguments

simplify the entire problem. Under the cited provision, a fee is to be

paid, among other things, for institutional care, which includes, e.g., a

stay in an anesthesiology-resuscitation unit, or a child’s stay in an

incubator, neither of which involves hotel services.
 

At

a general level, one can agree that what is decisive for evaluating the

actual nature of a payment is not the name of the payment, but its

purpose, although the name used in a legal regulation should respect the

terms established in the law, as I will discuss below. Of course, I

consider completely unacceptable explaining the purpose of a regulatory

fee as payments for other expenses incurred by a health care facility.

The judgment literally states that, “In this regard the Constitutional

Court took into consideration a certain parallel between medicine and

other free professions (e.g. law, tax advising, veterinary medicine,

architecture, etc.) or artistic professions (music composition, visual

arts, theater, etc.), and concluded that a doctor or a health care

facility also performs related activities which it could not do without

and without which it would not be able to provide medical care at all.

Activities such as, e.g., administrative work, legal assistance,

liability insurance, transportation, cleaning, etc.” I believe that the

Constitutional Court does not reach the obvious points that are

generally known. The income of a health care facility is primarily

income from a health insurance company, and that, of course, serves to

cover the facility’s operating expenses, so we can certainly conclude

that if a fee is the income of a health care facility, a certain part of

it, just like a certain part of the income from health insurance

companies, is used for these expenses. Moreover, these arguments

completely deviate from the framework of the legal regulation. These

expenses are calculated in the Ministry of Health decree no. 134/1998

Coll., which issues a list of health care services with point values, as

amended by later regulations, so they are included in the remuneration

that the health care facility receives from public health insurance

funds.
 

In my opinion, the

majority opinion of the plenum of the Constitutional Court, according to

which the legal regulation of regulatory fees is not fundamentally

unconstitutional, is unacceptable. I will try to explain the reasons

that lead me to a position completely opposite from the one stated in

the judgment’s reasoning.
 

For

overall evaluation of the petition to annul regulatory fees, from a

constitutional viewpoint, it is necessary to review whether Art. 31 of

the Charter, in its full text, represents a fundamental right for

payment-free health care and to health care aids on the basis of public

insurance, or whether it is only a constitutional norm that has a

different normative content. References to mere semantic differences in

the Charter, by themselves, cannot stand, when the title of Chapter Two

states only “Human Rights …” but the subtitle for Part One already

includes “Fundamental Human Rights….” It is necessary to distinguish the

normative content under each conceptual term. From this viewpoint, it

is a fact that the Charter includes provisions on human rights that have

differing normative content.
 

First

of all, it is human rights that arise directly from human existence,

and only that fact is the basis for defining their constitutional

content and scope. This involves values that contain the fundamental

rights for preserving a person’s integrity and ensuring his dignity,

e.g., the right to life, inviolability of the person, and personal

freedom. Such rights are inherent, inalienable, non-prescriptible, and

not subject to repeal (Art. 1 of the Charter). Limitations may be placed

upon them under the conditions under conditions prescribed by the

Charter, and only by law (Art. 4 par. 2 of the Charter). These are

fundamental rights.
 

In

contrast, human rights and freedoms contained in Chapter Four as

“Economic, Social and Cultural Rights” (semantically now without the

adjective “fundamental”) require the cooperation of other factors in

order to be implemented; they do not apply directly, as abovementioned

rights. This fact is completely obvious with Art. 31, second sentence,

of the Charter. Here the right to payment-free health care and to health

care aids is narrowed to the scope of public insurance, and is thus

dependent on the payment of insurance premiums. The entire Chapter Four

is, in aggregate, dependent on the economic and social status that the

state achieves, and the related level of living standards. This right

falls under the regime of Art. 4 par. 1 of the Charter, where

obligations can be imposed only on the basis of law, within its bounds,

and only while preserving the fundamental human rights.
 

The

normative content of the constitutional of Art. 31 of the Charter is

also limited by Art. 41 par. 1 of the Charter, because it can be

enforced, as a right, only within the bounds of laws that implement this

provisions. These laws are Act no. 20/1996 Coll., on Care for the

Health of the People, as amended, and Act no. 47/1997 Coll., on Public

Health Insurance. The Act on Care for the Health of the People, in § 11

par. 2 and 3, positively and negatively roughly defines the scope of

payment-free care such that it is provided without direct payment on the

basis of general health insurance, in the scope provided by special

regulations, or on the basis of contractual health insurance. Health

care that exceeds the framework provided by special regulations is

provided for full or partial payment, and a list of examples is

provided. Under § 11 par. 1 let.d) of the Act on Public Health

Insurance, an insured person has a right to health care without direct

payment if it was provided in the scope and under the conditions

specified by the Act. It specifies that a doctor or other expert worker

in health care, or a health care facility, cannot accept any payment

from the insured person for this health care, subject to penalties

provided in the Act, and under § 11 par. 1 let. e) of the Act on Public

Health Insurance the insured person also has a right to medical

preparations and foods for special medical purposes without direct

payment, if they are medical preparations and foods for special medical

purposes paid out of health insurance and prescribed in accordance with

the Act.
 

Thus, it is

possible to provide by statute the definition of the content and scope

of conditions for, and the manner of providing a citizen’s right to

payment-free health care. The Charter guarantees every citizen the right

to payment-free care paid from public health insurance funds. This is a

right, guaranteed in the constitutional order, to have health care in

the scope of resources available to public health insurance provided for

remuneration that is fully covered by these funds. The Constitutional

Court spoke on the interpretation of Art. 31 of the Charter in this

regard in its judgment Pl. ÚS 35/95: “Here the right to payment-free

health care and to health care aids is narrowed to the scope of public

insurance, and is thus dependent on the payment of insurance premiums.”
 

Thus,

it is appropriate to consider the nature of the payment that the

contested provision regulates. The Act says that every insured person,

or his legal representative, is required, in connection with the

provision of enumerated covered care, with certain exceptions provided

in the Act, to pay the health care facility that provided the care a

regulatory fee in the amount set. The term “fee” is used to identify

this payment. In legal terminology, “fee” means the payment obligation

of an individual or legal entity in connection with the activity or a

public authority (state or municipality), made in connection with the

exercise of public power in his/its interest. Article 11 of the Charter

provides that taxes and fees can be imposed only on the basis of the

law, and it must be emphasized that the determining feature of taxes and

fees is that they go into the public budget. It is obvious that this is

not that kind of payment. Health care facilities and pharmacies are not

state bodies, nor are they institutions to which the state transferred

some of its authority in order to ensure its functions or secure

resources (collection of taxes or fees) in the area of public budget

administration. These are private law subjects that, among other things,

based on a contractual relationship with a health insurance company,

provide health care that is paid by public health insurance. Thus, we

can conclude that this payment is not a fee in the abovementioned sense.
 

Under

the Act, a regulatory fee is the income of the health care facility

that collected it. At the same time, however, it must inform the health

insurance company, when providing an accounting of the health care

provided, information about the amount of the fee, individualized to the

particular insured person to whom the fee relates. Moreover, it can be

penalized by the health insurance company for not collecting a fee, with

a fine of up to CZK 50,000. In addition, if the total amount paid by an

insured person for regulatory fees in a health care facility and for

supplemental payments for medicines exceeds CZK 5,000 in the current

year, the health insurance company is required to pay the insured person

the amount by which that limit is exceeded. That is thus a payment out

of public funds. The explanatory report attached to the original

proposal from the Ministry of Health, which was presented to the

government on 27 April 2007, states that health insurance companies’

expenses of paying the amounts over the limit and the administration

thereof will be “more than compensated for by limiting the consumption

of health care that is not necessary given the insured person’s state of

health.” The explanatory report also states that the increase in income

of individual health care facilities will be taken into account in the

case of outpatient and inpatient health care facilities in the

negotiation proceeding between the providers and health insurance

companies on the payments for health care in 2008.
 

On

the one hand the Act describes the regulatory fee as income of a health

care facility, i.e. a private law subject, but on the other hand, if

these private subjects are paid more than the specified limit in fees by

a single insured person, the insurance company will pay that person the

overpayment over that limit out of public funds, to which these fees

are not supposed to flow, according to the literal text of the Act. If

the fee is income of a health care facility, and is not compensated by

reducing the payments that the insurance company makes to the health

care facility, then it is quite unquestionably cash payment for health

care paid into the hands of a purely private law subject and within a

purely private law relationship, which is also testified to by the

recipient’s obligation to report the fees collected and pay tax on them

under the Income Tax Act. The “fees” thus introduced are in fact a

sovereign measure in the nature of a price that interferes in a private

law relationship, despite the fact that the costs for payment of health

care provided in that relationship are already covered by public health

insurance. To evaluate the constitutionality of the introduction of

regulatory fees of this nature, the decisive element is their

inconsistency with the text of Art. 31 of the Charter. That is

unambiguous to the effect that a citizen has a right, on the basis of

public health insurance, to payment-free health care and health care

aids under conditions provided by law. That means that the care that is

fully covered by public health insurance must be provided payment-free,

and the law may provide which care will be covered by public insurance

only partly, or not at all.
 

The

Constitutional Court stated the same position in judgment Pl. ÚS 14/02,

where it analyzed the content of § 11 par. 1 let. d) of the Act on

Public Health Insurance, with the words: “Care means ‘health care

without direct payment,’ and no other. The prohibition also concerns

connection with provision of that care, i.e., again, payment-free care.

However, the text of the Act also indicates that nothing prevents direct

payment being collected from insured persons for health care provided

beyond the framework of the conditions for payment-free care.” In the

same judgment, it then analyzed the content of Art. 31 of the Charter

thus: “Under Art. 31 of the Charter everyone has the right to the

protection of his health. Citizens shall have the right, on the basis of

public insurance, to payment-free health care and to health care aids

under conditions provided for by law.” That law is Act no. 48/1997

Coll., on Public Health Insurance (the “Act”), which governs public

health insurance and the scope and conditions under which health care is

provided on the basis of the Act (§ 1 of the Act). The Act makes it

obligatory for a citizen to have insurance, the content of which is

provided by the Act. In setting the content of the insurance

relationship, the legislature is bound by the constitutional order,

primarily the material scope of the constitutional right to protection

of health. In regulating public health insurance, the law cannot exceed

this material framework for “protection of health” and can regulate only

the provision of care that serves to “protect health” (prohibition of

arbitrariness). The insured person transfers to the insurance company,

for payment, the risks that he may incur through danger to his health or

interference in his health. In contrast, the insurance premium cannot

be used to pay for things, procedures, interventions or services that do

not serve to protect the health of the insured person, but to satisfy

other needs, e.g., in securing living conditions.
 

Of

course, the Act establishes regulatory fees universally for all

beneficiaries of public health insurance, except for groups of

beneficiaries named in the Act, who do not have to pay the fee. This

universal introduction of the fee for the provision of health care

covered by public health insurance and the fee for every item on a

prescription thus rules out fulfillment of the constitutionally

guaranteed right for the provision of payment-free health care in a

scope provided by law, because a citizen who is not listed among the

persons who do not pay the regulatory fee cannot receive any health care

to which he is not required to contribute in the form of the regulatory

fee. Thus, the legal framework in fact imposes on this, by far largest

group of citizens who are insured by public health insurance, the

requirement that, in addition to paying public health insurance, they

pay another payment in order to get any treatment at all. Yet this group

includes, e.g., pensioners and children under 18. It is impermissible

for a right guaranteed by a constitutional regulation to be essentially

denied by a statute, as the contested legal norm has done. The

Constitutional Court, in two of its plenary decisions (Pl. ÚS 35/95 and

Pl. ÚS 14/02), has spoken unambiguously on the question of

interpretation of the term “payment-free medical care,” stating that it

means health care without direct payment.
 

It

is precisely the latter two groups of citizens that are most afflicted

by the contested regulation, and it must have been clear in advance that

this would be the case. As a result of this regulation, these groups of

persons covered by public health insurance are exposed to a difficult

situation if they fall ill with an illness that demands greater medical

care and, especially, medicines and medical preparations. Their

situation is not addressed by the highly disputable § 16b par. 1, which

permits compensation for expenses for regulatory fees and supplemental

payments for medicines, because they must first pay the funds, and get

them back with a considerable time delay. Moreover, the compensation

includes only the amount of supplemental payment for the least expensive

medical preparation available on the market, but it is precisely the

supplemental payments for medicines that are the greatest expenditures.

The situation in which these groups of citizens find themselves is a

violation of their fundamental right to human dignity, which is

enshrined in Art. 1 of the Charter, under which people have equal

dignity. Moreover, it must be emphasized that the state was fully aware

of the unique situation of pensioners and children, who, understandably,

do not pay public health insurance, when it provided by statute that

the state itself makes the health insurance payments for this group. By

subjecting them to payments, it is now denying that principle.
 

As

regards the fee for every item on a prescription, it is not quite clear

why this fee should be paid for medicines with a supplemental payment.

Is a medicine such a different commodity that the price does not fulfill

the ordinary regulatory function and it is therefore necessary to

regulate its sale by an additional special fee? Medicines are not the

only goods whose price is regulated on the basis of a price decision,

but for no other good with a regulated price is the sale regulated by a

fee that would raise the seller’s income across the board. Analyses

using complicated mathematical formulas have no real aim other than to

disguise the fact that a customer who buys a medicine partly covered by

public health insurance is supposed to pay to the seller primarily the

increased value added tax. Entrepreneurs in the pharmacy business thus

have an exclusive position vis-à-vis other entrepreneurs, who must deal

with the increased tax themselves, perhaps to the detriment of their

sales mark-up. Thus, other entrepreneurs are placed in an unequal

position compared to them.
 

Nor

can I accept the argument that justifies the introduction of fees per

item on a prescription by a reduction in drawing funds from public

health insurance for medicines whose price is lower than the regulatory

fee or is close to it. This effect could easily be achieved by removing

medicines in that price category from the list of medicines fully or

partly covered by public insurance, which, in and of itself, would not

be inconsistent with constitutionally guaranteed payment-free care,

because that measure would only apply to certain kinds of medicines, and

would not lead to universally canceling payment-free care.
 

A

health care facility has the obligation to collect regulatory fees, and

if it does not do so, the health insurance company can impose a fine of

up to CZK 50,000. The judgment does not deal at all with the proposal

to annul this provision due to inconsistency with the constitutional

order. Yet it is evident that this provision is inconsistent with Art.

11 par. 1 of the Charter, under which everyone has the right to own

property. Thus, it is a right, and not an obligation. Therefore, if

someone has the right under the law to acquire property, he cannot be

penalized for giving up that right. Moreover, this provision is

inconsistent with Art. 1 of the Charter, under which people have equal

rights. Therefore, in a private law relationship, the law cannot impose a

unilateral obligation on one party vis-à-vis the other, moreover, one

sanctioned by a high fine that has no basis in a contractual

relationship. Health insurance companies, on one side, and health care

facilities, on the other side, are private law subjects that have

concluded a contract on the provision of health care. That contract does

not contain a commitment by the health care facility to collect fees

for health care purely for itself. Thus, it is a violation of the

equality of the contracting parties if the law requires one party to

collect certain amounts that are purely its income, and gives the other

party the right to impose fines for failure to collect these amounts,

with which, of course, it has absolutely nothing in common, because they

are not its income, and the only connection here is the right of the

insured person, if the limit set by law is exceeded, to require the

return of the overpayment above that limit out of public insurance

funds. Of course, this is the right of a subject other than the health

care facility, and thus there is no reason to burden the health care

facility, on a statutory basis, with obligations that are tied to the

rights of third parties. Likewise, of course, it would be a violation of

the right of equal status if the health care facility were required to

collect fees for the benefit of the health insurance companies, as

another payment by insured persons into the system of public health

insurance, unless this collection were made on the basis of a

contractual relationship with, and remunerated by, the insurance

company.
 

I do not at all

wish to claim that all health care must be provided payment-free. In

judgment Pl. ÚS 35/95 the Constitutional Court addressed this question

as follows: “Insofar as the petitioners claim inconsistency with the

Charter in the fact that a second limiting factor was established

unconstitutionally, i.e. the amount of financial resources for payment

of health care, this limiting factor is directly contained in Art. 31,

second sentence, of the Charter, where the entitlement of citizens to

payment-free health care and health care aids is tied to the

constitutional requirement and the framework of public insurance. The

public insurance system, like every insurance system, is limited by the

amount of funds that are obtained from the obligation to pay premiums

for public health insurance.” However, care covered by public insurance

must be payment-free for everyone who participates in that insurance. In

the same judgment, it also stated that “Defining the statutory

definition of the content and scope of conditions and the manner of

providing the citizen’s right to payment-free care is possible only by

law.” Thus, it is possible to provide by law which items of medical care

are fully covered by public health insurance, which partly, and which

not at all; it is the same with coverage of medical preparations and

food for special purposes. However, at the same time there must be a

possibility for voluntary insurance that could pay expenses for

treatment that will not be covered by public health insurance funds. The

fact that the state, at least since 1995, has not been able to prepare a

law that would determine which health care was fully or partly covered

by health insurance, and thus also define care that is not covered by

those funds at all, so as to balance the public health insurance budget,

although it has been obvious for several years that expenses are higher

than incomes, cannot be a reason to violate the constitutional order.

In judgment Pl. ÚS 35/93 it defined the possibilities of this legal

regulation so that making this right subject to conditions provided by

law does not mean that the law can completely rule out payment-free

care. The law may specify what is payment-free and what is not.
 

The

provisions of § 16a and § 16b of the Act, which introduce regulatory

fees for the provision of health care, are inconsistent with Art. 31 of

the Charter, because they exclude the overwhelming majority of persons

insured by public health insurance from payment-free provision of that

care covered by public health insurance funds, although the

constitutional order guarantees them that right. They are also

inconsistent with Art. 11 par. 1 of the Charter, because [they] penalize

the right to give up property, and with Art. 1 of the Charter, because

[they] establish an inequality in rights between contractual parties to a

private law relationship and places a substantial group of citizens,

specifically pensioners and children under 18, into undignified

conditions. It is therefore appropriate to annul them.
 

The

petitioners also criticized § 17 par. 5 of the Act, which authorizes

the Ministry of Health to issue a list of health care services with

point values in the form of a decree. The list of services with point

values sets the price that the providers charge insurance companies for

health care provided to their clients, on the basis of a contract on the

provision and payment of health care, concluded between the health care

provider and the relevant health insurance company. Under the new

regulation, a price appendix to this contract, which is concluded for a

definite period, is negotiated each year; it sets the amount of

remuneration according to the price in the list of services.
 

Under

the regulation in effect until the end of 2007, the list of health care

services with point values was prepared in negotiation proceedings with

representatives of the General Health Insurance Company of the Czech

Republic and other health insurance companies, the appropriate

professional associations of health care providers, as representatives

of the contractual health care facilities, professional organizations

established by law, expert scientific societies, and insured persons’

interest groups. If a contract was concluded, the list of health care

services with point values was presented to the Ministry of Health to be

evaluated for consistency with legal regulations and the public

interest. If the result of the contract was consistent with legal

regulations and the public interest, the Ministry of Health issued it as

a decree. If there was no contract, or if the Ministry of Health found

that the contract was not consistent with legal regulations or the

public interest, the Ministry of Health itself decided on a list of

health care services with point values and then issued it in the form of

a decree.
 

The currently

valid regulation differs from the previous one in that it contains a

provision authorizing the Minister of Health to issue the list in the

form of a decree, without making a decision first. The final consequence

of that is that the Ministry of Health can determine the price for

medical services in the form of a generally binding regulation, and the

parties to the private law relationships, the providers on the one hand

and the insurance companies on the other hand, cannot defend themselves

against it in any way. The Act preserves the negotiation proceeding, but

the new regulation permits the Ministry of Health to not observe it, as

the Ministry’s conclusion that a contract is not consistent with legal

regulations or the public interest is not subject to any review, because

it does not have to issue any decision about it, and [can] directly

issue a list of health care services with point values in the form of a

generally binding legal regulation. This opens room for complete

arbitrariness and corruption, because the individual parties to

contractual relationships can influence Ministry employees, perhaps even

the Minister himself, behind the scenes, when they set the price per

points for individual health care services. In the current legal

situation, the affected subjects also cannot seek judicial protection.
 

Based

on the authorization in § 17 par. 5 of the Act, the Ministry regulates

by decree, i.e. a generally binding legal regulation, the rights and

obligations of precisely individualized subjects, which is typical for

acts of application of law. It thereby deviates from one of the

fundamental material elements of the term “law” (legal regulation),

which is generality. On the question of ruling out judicial review in

the case of an individual legal regulation, the Constitutional Court

said in judgment file no. Pl. ÚS 40/02: “An individual framework

contained in a legal regulation that deprives the addresses of the

possibility of judicial review of the fulfillment of general conditions

of a normative framework with a particular subject, and that lacks

transparent and acceptable justification in relation to the possibility

of general regulation, must be considered inconsistent with the

principles of a law-based state (Art. 1 of the Constitution), in which

the separation of powers and judicial protection of rights are immanent

(Art. 81, Art. 90 of the Constitution).”
 

Under

Art. 36 of the Charter everyone may, through the legally prescribed

procedure, assert his rights before an independent and impartial court

or, in specified cases, before another body, and anyone who claims that

his rights were curtailed by a decision of a public administrative

authority may turn to a court for review of the legality of that

decision, unless otherwise provided by law. However, judicial review of

decisions affecting the fundamental rights and freedoms listed in the

Charter may not be removed from the jurisdiction of the courts. Setting

prices per point of medical services is interference in the individual

rights of subjects that conclude a contract, under which they provide

performance to each other. Thus, it is interference in a private law

relationship, which is justifiable by the legitimate requirement to keep

public funds under control, but it cannot be applied in a manner that

creates conditions for completely suppressing the right of the affected

private law subjects, at least in some form, to turn to a court.

Therefore, the authorization provision is inconsistent with Art. 36 of

the Charter.

 



Dissenting Opinion of the Chairman of the Constitutional Court, Pavel Rychetský


The

dissenting opinion that I am filing under § 14 of Act no. 182/1993

Coll., on the Constitutional Court, as amended by later regulations,

dissents both from the verdict, which denied the petition to annul part

of Act no. 261/2007 Coll., on Stabilization of Public Budgets, separated

out for independent proceedings under file no. Pl. ÚS 1/08 (the

so-called health care part of the “collection Act”), and from the

arguments of the majority of the plenum of the Constitutional Court,

insofar as it claims that introducing so-called regulatory fees in

health care is constitutional. Here are the reasons for my dissenting

opinion:
 

1) The

Constitutional Court’s standard procedure in abstract review of a norm

is to test whether the contested norm is constitutional, and the first

step of that is normally to review whether the process by which the norm

was adopted was constitutional. Only if the contested norm survives

that first review step does the Constitutional Court review the norm on

the merits, for consistency with the constitutional order, using the

tests of proportionality, purposefulnesss, inviolability of fundamental

human rights and freedoms, etc. In my opinion, in this case the

contested Act did not survive the first step of the standard test, and

should have been annulled. I have already explained the detailed reasons

for my dissenting opinion in my joint dissenting opinion with Judge to

judgment file no. Pl. ÚS 24/2007 and therefore I refer to it in full.
 

2)

However, even if the contested Act as a whole survived the review of

the constitutionality of the adoption process, in my opinion the

Constitutional Court should have annulled all provisions relating to the

introduction of s-called regulatory fees in health care, and the

amended provision § 17 par. 5 of Act no. 48/1997 Coll., on Public Health

Insurance. In this case, the Constitutional Court’s obligation was

primarily constitutional law evaluation of the introduction of a

statutory obligation to provide cash payment for every item of health

care, universal introduction of regulatory fees for stays in a health

care treatment facility, as well as the introduction of a mandatory

payment into the hands of pharmacy operator for every item on a medical

prescription. Despite the wide scope of the reasoning in the negative

judgment, the arguments in it are concentrated solely in the level of

general considerations on the applicability of the proportionality and

reasonableness tests, with an emphasis on the principle of restraint and

minimizing interference in the legislative will. These general

considerations in the judgment’s reasoning then culminate in the

conclusion that “the Constitutional Court also takes into account the

fact that the effects of reform cannot be evaluated until after the

mechanisms created can begin to function, and adds that, in terms of

evaluating the constitutionality of the contested provisions, it has

authority only to decide on the fundamental principles, not on a

particular factual situation.” (see point 91). However, this

consideration goes beyond the mission (and responsibility) of the

Constitutional Court which, on the contrary, is supposed to precisely

define the constitutional limits within which legislation must stay, and

exceeding which is grounds for the Court’s derogatory intervention.

Thus, the judgment, which I oppose with this dissenting opinion, avoids

the essential thing – conflict with Art. 31 of the Charter of

Fundamental Rights and Freedoms and all the current case law of the

Constitutional Court, which, moreover, cannot be successfully overcome,

without applying § 13 of the Act on the Constitutional Court (which the

plenum of the Constitutional Court did not do in this case). Insofar as

the judgment conducts a debate with the constitutional category of

payment-free health care, applying historical deliberations from the

Code of Hammurabi, through medieval sources, to quotations from the

history of medicine (in the aggregate, proving that medical services

were always paid), it does so quite inappropriately and unnecessarily

(see points 96 and 97) – none of the parties or judges of the

Constitutional Court questions that medical care is paid, and not in a

negligible amount, but, of course, within the Czech legal order

exclusively within the framework of public health insurance. The basis

of the arguments on which the majority of the plenum of the

Constitutional Court basis its denial verdict and the conclusion that

the contested part of the Act is not unconstitutional is concentrated in

points 103 to 108 of the reasoning. It correctly states that legal

norms that affect the sphere of social rights must observe the

significance and essence of social law (its essential content) and

cannot exceed the defined constitutional limit so much that they would

eliminate this right or the possibility of exercising it. Only after

that do the tests of legitimacy (purposefulness) and reasonableness

(rationality) of the contested legal regulation come up. Of course, it

is precisely this process that leads me to a completely different

conclusion – that the contested norm is obviously unconstitutional. The

essential core of the second sentence of Article 31 of the Charter is

“everyone’s right to payment-free health care on the basis of public

health insurance,” which the Constitutional Court has already

interpreted repeatedly. In judgment file no. Pl. ÚS 35/95, the Court

explicitly stated that “the entitlement of citizens to payment-free

health care and to health care aids is tied to the constitutional

requirement and framework of public insurance.” The Constitutional Court

repeated this constitutional safeguard in its judgment file no. Pl. ÚS

14/02, when it found constitutional § 11 par.1, let. d) of Act no.

48/1997 Coll., on Public Health Insurance, which forbade health care

facilities and doctors to accept any kind of payment for health care,

“even in connection with providing that care.” Now, however, we see the

conclusion that “The essential content of Art. 31, second sentence of

the Charter is the constitutional establishment of an obligatory system

of public health insurance, which collects and cumulates funds from

individual subjects (payers) in order to reallocate them based on the

solidarity principle and permit them to be drawn by the needy, the ill,

and the chronically ill. The constitutional guarantee based on which

payment-free health care is provided applies solely to the sum of thus

collected funds.” (point 106) Thus, we learn that the constitutional

order no longer guarantees everyone’s right to payment-free health care

(in the words of the Charter), but, on the contrary, the constitutional

guarantee is provided exclusively (solely and only) to the public law

system of health care, apparently as a new subject of constitutionally

guaranteed rights and freedoms. Of course, the careful reader of the

judgment will not fail to observe that the authors of this new and

unworn opinion apparently are not completely convinced about it, because

after concluding that the Act does not affect the essential contest of

the social right (the only bearer of which they identified as the health

care insurance system) they also proceeded to the remaining three steps

in the test of constitutionality. They then easily overcome the

doctrine of non-repealability of a guaranteed social right, because they

ascribe this social right only to the subject called the “insurance

system,” and not to those who, under the first sentence Art. 31 of the

Charter, have a right to protection of health, and under the second

sentence, a right to payment-free health care. By introducing the

statutory obligation to pay regulatory fees for health care really did

not annul the right of the system to collect and cumulate funds, or its

actual implementation. Of course, the right of all participants in the

health care insurance system to payment-free health care, as it was

previously provided to them, was completely annulled. The legitimacy of

the aim is then seen in “an emphasis on such organization of the health

care system as would ensure higher quality actual implementation,” which

“the Constitutional Court considers … determined” (see point 110). Of

course, it is difficult to debate this point using constitutional law,

and I refer only to the already mentioned opposite claim of the same

judgment in point 91, that “the effects of reform cannot be evaluated

until after the mechanisms created can begin to function.” Insofar as

today’s arguments of the narrow majority of the plenum of the

Constitutional Court in the reasoning (see, in particular, points 112 to

115) even concludes that the Constitutional Court cannot, within

abstract review of a law, evaluate its effects on the norm’s addressees,

then in fact it deprives the Constitutional Court of its elementary and

irreplaceable role. What else does The Constitutional Court do in

abstract review of norms but [review] whether an evaluated norm, when

applied, does not violate the fundamental principles of the

constitutional order, and, especially, constitutionally guaranteed human

rights and freedoms. In this case the authors of the majority opinion,

on the one hand take all four steps of the traditional test for

evaluating the constitutionality or unconstitutionality of a contested

norm, but thanks to this deliberation, it is “de-boned” of the

substantive method of the constitutional judiciary. The resulting

conclusion necessarily appears purely self-serving. Otherwise, the

judgment would have to analyze, for every regulatory fee, the legal

form, purpose, and, especially, the nature of the payment – what

services the fee is prescribed for. And, of course, also the effect of

the fee on the sphere of constitutionally guaranteed rights of the

subjects on whom it was imposed. Instead, it calls on the legislature

and the executive branch to take these steps (see points 113 to 115). In

the test of purposefulness the majority of the plenum of the

Constitutional Court could have determined that the explanatory report

to the government bill of the contested Act, the only purpose for

introducing so-called regulatory fees in health care is explicitly

stated to be the attempt to “limit the abuse of health care” by insured

persons. This conclusion was also confirmed in the presentation of

evidence during the hearing, by the questioning of Minister of Health

Julínek, who, as a witness, stated that “the regulatory nature of the

fees also functions psychologically, so that people consider whether a

visit to a doctor or hospitalization is not unnecessary.” The Charter of

Fundamental Rights and Freedoms, in Art. 31, gives everyone the right

to protection of health, stating that “citizens shall have the right, on

the basis of public insurance, to payment-free health care and to

health aids, under conditions provided for by law.” The Act on Health

Insurance then imposes an obligation for payments for health insurance,

and, with precisely named groups of citizens who are insurance payers

(e.g., un-provided for children, pensioners, and others) it provides in §

7, that their contribution to public health insurance is paid by the

state. Nevertheless, in the contested part of the Act, even these payers

are not exempt from the obligation to pay regulatory fee, although in

the logic of the current health insurance system, in their case the fees

should also be paid by the state. The obligation to pay regulatory fees

would thus stand only in the case of fees for so-called hotel services

during a stay in inpatient health care facilities, although even in that

case the legislature should have, in the spirit of the constitutional

imperative under Art. 31 of the Charter distinguished cases where a

patient receives only health care and not hotel services (e.g., in the

case of a stay in an intensive care unit or placing an infant in an

incubator). Art. 31 of the Charter states clearly that “citizens shall

have the right, on the basis of public insurance, to payment-free health

care.” That means that the care which is fully covered by public health

insurance must be provided payment-free. The law can specify, which

care will be fully covered by public insurance, which partly, and which

not at all. Instead, in this case the legislature adopted a norm that

universally and without differentiation sets the fee obligation on

practically all kinds of health care and all insured persons without

differentiation. All forms of interpretation (grammatical, systematic,

logical and teleological) of the contested part of the Act on

Stabilization of Public Budgets just like the result of presentation of

evidence, confirmed that fees are paid for health care, and their

purpose is to limit abuse of that care by insured persons. Of course,

such a regulation is obviously unconstitutional, and the Constitutional

Court had an obligation to annul it regardless of the declared principle

of restraint and minimization of interference.
 

In

point 119 the judgment states “thus, we can summarize that, generally,

from the point of view of Art. 31 and Art. 4 par. 4 of the Charter, the

regulatory fees provided by the Act are within the limit that preserves

the essence and significance approach to dignified health care paid from

public health insurance, and these payments do not create a barrier

that limits this access (they do not have a “strangling effect”), also

in context with benefits provided from the social security system.” Of

course, we cannot tell from the judgment how it arrived at that,

although dozens of individuals and organizations (e.g., the National

Council of Persons with Health Disabilities, the Union of the Physically

Disabled) have already turned to the Constitutional Court, documenting,

at least with specific groups of people, the precise opposite.

Moreover, the universal introduction of regulatory fees in health care

is inconsistent with Art. 1 par. 2 of the Constitution, under which the

Czech Republic is required to observe its international commitments. The

plenum of the Constitutional Court was aware of the position of the

ombudsman, from which I quote:
 

 “In

connection with introducing regulatory fees for medical care under §

16a par. 1 of Act no. 48/1997 Coll., on Public Health Insurance, as

amended by later regulations (the “Act on Public Health Insurance”), in

relation to petitioners for international protection, the ombudsman,

non-governmental organizations, and doctors who come into contact with

that clientele noticed serious problems with the accessibility of

medical care, or with medicines for this group of people. We can

consider it impermissible for the objective inability to pay fees in

individual cases limit the petitioner in the use of medical care, or for

doctors who do not collect the fees (again, in a situation where the

applicant objectively does not have the funds to pay the fee) to be

exposed to the risk of sanctions under § 16a par. 8 of the Act on Public

Health Insurance.
 

Under

the Act on Asylum, in airport intake centers, and at intake centers that

are considered by a legal fiction to be airport intake centers (today,

the intake center Velké Přílepy), pocket money should not be paid at all

(87a par. 3 of the Act on Asylum). At the same time, asylum applicants

can be held in these facilities up to 120 days. During a stay in a

residential center, pocket money is given only to those applicants who

receive food (at present, they are given an amount of CZK 16 per person

per day). The amendment no. 379/2007 Coll., by adopting § 46a, expanded

the legal possibilities for keeping applicants in an intake center.

However, at the same time, pocket money is not paid for the period when

an applicant is not in a residential center, e.g., when hospitalized.

Applicants who receive a financial contribution in the amount of the

minimum living amount instead of food are not given pocket money.

Applicants may not legally work until one year after proceedings

concerning giving them international protection have begun. When living

in private accommodations, the applicants can then receive a financial

contribution of 1.3 to 1.6 times the minimum living amount, for a

maximum of three months.
 

In

view of these limits on applicants’ legal income, certain categories of

them are not able to pay fees for medical care. It is unfortunate that

this applies especially precisely to applicants who, for various reasons

(chronic disease, serious illness requiring hospitalization, advanced

age, etc.), need increased medical care, or groups that are objectively

at higher risk of illness (which, generally, includes children attending

schools). Health care facilities have an obligation to collect fees, or

subsequently attempt to collect them, if applicable, by judicial

proceedings (otherwise they risk receiving an administrative penalty),

where the amount originally owed can increase several times because of

additional items. It cannot be considered ethical for person who, for

objective reasons, cannot obtain the funds to pay fees from legal

sources, to get into problems with payment of fees (and in the present

situation that cannot be ruled out).
In this regard, I must also

mention the obligations arising for the CR under EU law, especially from

Council Directive 2003/9/ES (“Directive 2003/9/ES”), which specifies

minimum norms for accepting asylum seekers. Under Art. 15 (Health care)

par. 1 of the Directive: “Member States shall ensure that applicants

receive the necessary health care which shall include, at least,

emergency care.” Under Art. 13  (General rules on material reception

conditions and health care): 1. Member States shall ensure that material

reception conditions are available to applicants when they make their

application for asylum. 2. Member States shall make provisions on

material reception conditions to ensure a standard of living adequate

for the health of applicants and capable of ensuring their subsistence.

Member States shall ensure that that standard of living is met in the

specific situation of persons who have special needs, in accordance with

Article 17, as well as in relation to the situation of persons who are

in detention.”
 

3)

Peripherally, I must also point to the fact that, in conflict with

settled doctrine, the legislature uses for these payments the term

“fee,” which has been for centuries the term for public law payments to a

public authority in connection with the exercise of its public power.

However, in this case the term “fee” hides a payment between two private

law subjects in a relationship where one party (the subject doing

business in the health care field) provides a certain kind of service

(health care) for payment, which is paid for the recipient of that

service by a health insurance company. Thus, this is in fact a

universal, unilateral price measure, which – regardless of the principle

of free creation of prices and the free will of contracting parties,

and, moreover, subject to penalty – sets a universal price surcharge on

health care that, in the constitutional order, is provided payment-free,

on the basis of public insurance. The plenum’s majority opinion deals

with this fact in points 116 and 117 of the judgment’s reasoning in a

manner that completely defies the elementary constitutional law

criteria, and therefore it is worth quoting from it here: Hypothetically

we can certainly imagine the alternative that the “regulatory fee” in

the same amount would be conceived as part of the insurance premium for

health insurance, and the place of payment would be the health insurance

company, which would subsequently, contractually or by law, increase

the payment to the relevant health care facility by the amount of this

insurance premium.” Yes, hypothetically one can imagine virtually

anything; of course, the Constitutional Court would have to – also

hypothetically – acknowledge that, in that case, where the state pays

the insurance premium for an insured person it would also pay the

increased payments (although apparently only hypothetically). Because it

does not do so, in that case the Constitutional Court would have to

annul the regulatory fees, and give the legislature space for a

constitutional fulfillment of this hypothetical construction. Moreover,

the judgment tries to deny the logical conclusion that this is de facto a

price measure. Yet, it argues by analogy with the decree of the

Ministry of Justice that sets the tariffs for non-contractual

remuneration of an attorney for legal services. Yet, payments for an

attorney’s legal services are undoubtedly by nature prices.
 

4)

A separate chapter – which, of course, cannot be logically explained at

all – is the introduction of an obligation to pay a regulatory fee to a

pharmacy for each item of medicine on a prescription. This fee is

naturally not for an item of health care, but a payment in a purely

private law relationship that is identically with sale in a shop. In

this case the majority of the plenum avoids constitutional law

arguments, and concludes that “it is evident from the evidence presented

that the pharmacy facility, although it is the place of payment, keeps

basically only a minimal amount out of the regulatory fee collected.”

(point 130). If I set aside the fact that nothing like that came out of

the evidence presented, I cannot avoid the question, what constitutional

law relevance would such a finding have? None, of course! The

judgment’s remaining arguments concerning this fee are then limited to

the importance of the regulatory function, which is supposed to lead

patients to “a responsible approach to obtaining prescription

medicines.” Logically the inescapable conclusion is that the doctors who

write prescriptions are irresponsible people and can be led to practice

medicine responsibly only by the patient – apparently under the effect

of a fee which, however, the Constitutional Court did not find to be

“strangling” – see points 118 and 130 (again without documented

arguments) and without taking into account the accumulation of the

introduced fees, and, especially, to everyone’s constitutionally

guaranteed right to have his human dignity respected under Art. 10 par. 1

of the Charter.  
 

5) I

believe that the Constitutional Court also had an obligation to annul §

17 par. 5, inserted into Act no. 48/1997 Coll., on Public Health

Insurance. This provision authorizes the Ministry of Health to issue a

list of health care services with point values by decree. However, under

the previous legal framework, the list of health care services and

their point values was assembled in a negotiation proceeding among

health insurance companies, professional associations of health care

providers, expert scientific societies and insured persons’ interest

groups. Only after the negotiation proceeding ended could the Ministry

of Health issue a decision that either approved the agreement, or, on

the contrary, stated that the agreement conflicted with legal

regulations or the public interest, and then issue a list of health care

services by decree. The ministry’s decision was subject to independent

judicial review, which could be sought by the affected subjects. The new

legal regulation meets the elements of unconstitutionality, because it

removes the possibility of judicial review in an area as important as

setting the price of a point for medical services. Of course, such a

regulation is in conflict with Art. 36 par. 1 of the Charter, under

which everyone may assert his rights before an independent court. The

arguments of the majority of the plenum in the judgment’s reasoning,

according to which this situation is analogous with a decree from the

Ministry of Justice determining remuneration and reimbursement to an

attorney (see point 121) is inappropriate – that regulation leaves

setting the amount of an attorney’s remuneration to the contractual free

will of the parties, and only secondarily offers tariff remuneration

where an attorney and client do not reach an agreement.

 
 


Dissenting Opinion of Constitutional Court Judge Eliška Wagnerová

1.

My dissenting opinion is aimed at both the verdict and the reasoning of

the judgment. Today I also refer in full to my dissenting opinions to

the two previous judgments concerning the so-called reform of public

finances – i.e. in the matters Pl. ÚS 24/07 and Pl. ÚS 2/08. I also join

those parts of the dissenting opinion of my colleague, J. Nykodým, in

which he recapitulates the Constitutional Court’s current case law on

the question of “payment-free” status tied to those “rights” guaranteed

in Chapter Four of the Charter, which are subject to the requirements of

an Act adopted under Art. 41 par. 1 of the Charter, and to the

arguments concerning the evaluation of the constitutionality of § 17

par. 5 of Act no. 48/1997 Coll. on Public Health Insurance, and I also

join in the dissenting opinion of my colleague P. Holländer, concerning

evaluation of § 17 par. 6 of that Act, and further in the scope of the

parts stated below, with the kind consent of both my respected

colleagues.
 


I.
Activism That Denies Binding Procedure
 

2.

I believe that the Constitutional Court’s current case law on

interpretation of payment free status in the abovementioned sense,

summarized in the dissenting opinion of J. Nykodým, could have been

further developed by today’s judgment toward closer investigation of the

nature of economic, social, and cultural rights, and if there were no

further development, it should have been respected in its present form.

Nothing about this requirement can be changed by the claim in point 121

of the judgment, that the Constitutional Court “is addressing this

issue, thus defined, for the first time,” which also cannot be described

as apodictic, because it simply does not correspond to real and

verifiable facts. I am led to demand respect for the existing case law

by the fact that procedural conditions under § 13 of the Act on the

Constitutional Court were not created (the judgment was accepted by only

eight votes, although the Act requires nine votes to change a legal

opinion previously stated in a judgment), nor were any of the

constitutionally material conditions stated in judgment Pl. ÚS 11/02,

which are to prevent the Constitutional Court itself from acting with

constitutionally prohibited arbitrariness, found (or even looked for).

Although the majority opinion refers to that judgment in point 121, it

does not say what situation arose that would permit abandoning the

existing case law. Moreover, the eight-member majority of the plenum did

not even address the statutory procedural requirement for a change in

case law.
 

3. For me, this

activism smacks of self-servingness, which, instead of the requirement

that the plenum of the Constitutional Court proceed in a constitutional

manner, relies on some sort of “highest point of reference,” which

projects health care reform into the Act which, only because it is part

of the “reform,” becomes immune from proper review in terms of the

constitutional order (see below). It is noteworthy that the eight-member

majority renounces activism and presents its position as an expression

of disciplined self-restraint (see points 88, 92 and others). I will try

to prove the contrary, with the words of the former head of the Israeli

Supreme Court, Aharon Barak: “I define an activist judge as one who,

from the variety of alternatives that he has available, chooses the one

that changes existing law more than the other possibilities, and I

define a judge who practices self-restraint as one who, from all

possibilities, chooses the one that, more than the others, preserves the

existing situation . … So, e.g., in a situation where precedent exists,

an activist judge is one that deviates from it, while a

self-restraining judge is the one who preserves it.” And a few pages

later we read: “It makes no sense to claim that an activist judge is by

definition a liberal judge and that a self-restraining judge is a

conservative one. Whatever meaning is ascribed to the terms ‘liberal’

and ‘conservative,’ an activist judge can be a conservative one, if the

change that he makes produces new conservative positions. Similarly, a

self-restraining judge can be a liberal, if, in preserving what exists,

he preserves the liberal values embodied in the existing rule.” In the

conclusion of the work, the author states his conviction that in the

“choice between truth and truth” we must clearly give priority to the

stability of case law. He sees justification for this conclusion in,

among other things, the fact that a judge must weigh his decision both

in terms of its benefits, and in terms of the extent of damage [it

causes]. He must ask himself whether the advantage of the solution

adopted (even a theoretically more just one) outweighs the damage caused

by frustration from unmet expectations in relation to the decision”

(Barak, Aharon, Judicial Discretion, Yale University Press, 1987, pp.

148, 150-151, 259).
 

4. For

the foregoing reasons, in connection with the sensitive nature of the

subject matter discussed today, and also because previous case law,

measured by the number of previous decisions, can be considered rich and

invariable, I maintain that today’s decision has damaged the

credibility of the Constitutional Court of the CR, as an institution

that has been built over fifteen years, that is intended to see to the

observance of constitutionality, the immanent element of which is also

seeking to promote elementary general fairness, and today we cannot yet

estimate how deep the damage will be. In my opinion, because of all the

cited, serious failings the opinions stated in the judgment cannot be

considered to function as precedent or to create the obstacle of rei

iudicatae.



II.
Are Social Rights Not Institutional Guarantees?
 

5.

A “right” guaranteed by Art. 31. of the Charter is only seemingly a

fundamental right, if we understand a fundamental right to be a public,

subjective right, from which one could directly derive an individual’s

“entitlement” in relation to a public authority, whether in the form of

entitlement to have the right respected, or in the form of an

entitlement to have it protected. If there is not, from that point of

view, a fundamental right, there is certainly, generally speaking, a

principle that is part of the objective law formed by the constitutional

order, and which is at the same time unquestionably a part of the value

decisions made by the particular framers of the constitution. However,

in this case we can look for even more close-fitting and specific

characteristics of the decision by the constitutional framers, which

they formulated as a citizen’s right to payment-free health care and

health care aids on the basis of public insurance, which is usually

called an institutional guarantee. European legal science considers that

to be a constitutional law guarantee of the institutes (institutions)

of public, state, political, religious and private life, which the

framers of the constitutional consider so valuable that they wanted to

protect them from changes by the legislature, in a scope set forth in

the constitutional order, which determines their very essence (see

Ossenbühl, Fritz, Die Interpretation der Grundrechte in der

Rechtsprechung des Bundesverfassungsgerichts [Interpretation of

Fundamental Rights in the Case Law of the Federal Constitutional Court],

in NJW 46/1976, p. 2100 et seq., and similarly, a wealth of other

foreign literature).
 

6. The

constitutional law guarantee of a particular institution pursues the

political aim consisting of maintaining a certain objective order in one

of the abovementioned areas of life so as to preserve its structure and

function. In this case, constitutional law has fixed the framework in

that area of the lives of members of the society that is connected with

protection of their health. Obviously, Art. 31 of the Charter, in terms

of structure, requires preserving health care on the basis of public

insurance (which, of course, does not rule out the law allowing the

existence of private insurance under conditions defined by law, which,

however, under the current constitutional framework, can only be a sort

of complementary offer, which, of course, no one who would otherwise be

entitled to use it can be forced to use). In terms of function, Art. 31

of the Charter, in the extent to which it enshrines payment-free health

care (better stated, in fact this is only to rule out the possibility of

requiring further payments for the provision of health care, in

addition to the payments already made through health insurance), must be

interpreted as a kind of guarantee of social statehood in an area as

sensitive as protection of health. At the same time, applying

payment-free status only to the provision of health care itself and to

health care aids, functions as a limit on the payment-free requirement

in terms of the constitutionally guaranteed institution. In other words –

payment-free status can certainly be expanded further simply by the

will of the legislature, but in deliberations about restricting

payment-free status the legislature is bound by the limit that follows

from the essence of the constitutionally guaranteed institution.
 

7.

It is precisely concerning the payment-free provision of health care

that we must maintain the interpretation provided by the Constitutional

Court’s existing case law; the formal (procedural) conditions for

changing it have not arisen, nor have any material conditions been

determined (see above). Of course, the contested statutory regulation

ignores the interpretation of “payment-free” repeated provided by the

Constitutional Court of the CR, insofar as it introduced so-called

“fees” paid directly in connection with the provision of health care by

doctors and in pharmacies. (As regards evaluation of the issue of the

so-called “fees,” which are actually not so completely fees, and

payments are made for a purpose or purposes that remained hidden even

from the creators of the Act – see the answers of the witness, Minister

T. Julínek, to questions from my colleague, Constitutional Court Judge

J. Nykodým – I join in all the reservations that my colleague, professor

P. Holländer raised on this topic in his dissenting opinion. I can

perhaps only add that the judgment itself, which supports “fees,” with a

certainty that it certainly did not draw from the evidence or from real

world facts (described by all the media for many months), on the basis

of several purposes, from a regulatory function, to a contribution to

the technical operation of a doctor’s office or health care facility, is

a perfect illustration of the ironic advice of the great poet, and

trained lawyer, J. W. Goethe, to colleagues in the legal profession: “Im

Auslegen seid frisch und munter! Legt ihr’s nicht aus, so legt was

unter.”)
 

8. If so-called

“fees” are required for health care (whether from a doctor or in the

form of fees for medicines) by payment (income) to a private person

(doctor, health care facility, pharmacist), on which, of course, the

provision of health care is conditioned, one cannot seriously claim that

health care is provided solely on the basis of public insurance. In

reality it is provided, first of all, against payment provided to a

private person, and provision of that payment is the decisive factor for

whether it is even possible to subsequently draw on the public

insurance that was paid for. Because there are two different recipients

for the two payments (a doctor or health care facility and an insurance

company), the fees cannot in any way be seen as a kind of

co-participation by insured persons in the public insurance (even if

unconstitutional). Thus, the concept chosen by the Act has disturbed the

entire structure of the institution of health care, which must, at the

behest of the constitutional framers be provided on the basis of public

insurance.
 

9. Therefore, I

can conclude that the concept of fees chosen by the Act is clearly

inconsistent both with the structure and with the function of the

constitutional guarantee of the institution of a right to payment-free

health care on the basis of public insurance contained in Art. 31 of the

Charter, and therefore the relevant contested provisions of the Act

should have been annulled due to inconsistency with that provision of

the Charter.
 


III.
Constitutional Immunity for Reform Laws?
 

10.

Insofar as the judgment claims in point 91 that “if it acted in too

activist a manner in relation to any reform, including reform of health

care, it would certainly create case law that would a priori close the

door on any reform attempts,” in connection with the admission in the

conclusion (point 134), that among the various motives due to which it

was not possible to annul the contested statutory provisions “it gives

hierarchical priority” to reasons that lead it to restraint, and then

states in different words that when attempting reform it is necessary

for the requirements of constitutional conformity for the contested Act

be softer and recede “just a little bit” into the background. It is

appropriate to ask if in future any statute is identified by the

executive (any executive) as a reform statute, will it receive a more

indulgent constitutional law evaluation? Personally, I believe that such

an innovative approach has no support in the constitutional order.
 

11.

It also follows from the judgment’s reasoning (points 92, 93) that the

statutory regulation of social rights should only be subject to the

so-called rationality test, with reference to the American theory (the

rational-basis test), which the judgment interprets in a “Czech manner.”

The judgment does not address whether the reviewed statutory

regulation, although at first connected with a social right, does not

interfere in one of the fundamental rights that can be described as

public subjective rights (e.g., human dignity, the right to life, and

personal integrity), and whether it is not therefore necessary to apply a

stricter test. Here I refer to what my colleague professor P. Holländer

says in his dissenting opinion about the amount of the so-called

“subsistence minimum,” and I agree with his evaluation. I also fully

agree with my colleague P. Holländer’s evaluation of the historical

analysis parts of the judgment, and only add that the need to ensure

health care for the population was recognized in North America (in

Canada) as early as the beginning of the 20th century. Point 56 of the

Canadian Supreme Court case Chaoulli v. Quebec (Attorney General),

decision of 6 September 2005, says: “Government involvement in health

care came about gradually.  Initially limited to extreme cases, such as

epidemics or infectious diseases, the government’s role has expanded to

become a safety net that ensures that the poorest people have access to

basic health care services.  The enactment of the first legislation

providing for universal health care was a response to a need for social

justice.”
 


IV.
Values of Civilization as the Basis for a Concept of Justice
 

12.

In relation to the group of socially weak seniors it is completely

obvious that the contested Act is unconstitutional, if one evaluates it

using common sense.
 

13. It

is obvious that even a relatively young person, let alone a senior,

cannot secure proper health care out of the minimum subsistence amount

calculated by my colleague, P. Holländer at CZK 87.43 per day (food,

clothing, hygienic supplies, transportation, communication services, and

other things), or from an amount a few dozen crowns higher, and is thus

realistically exposed to the danger of damage to health, danger to

life, and, above all, his human dignity is brutally devastated. All

these are consequences for these groups of people (and certainly others

as well; see the dissenting opinion of the Constitutional Court

Chairman, P. Rychetský), which, in my opinion, are the direct

consequence of the unconstitutional and thoroughly immoral requirements

of the Act, which did not consider ensuring the accessibility of health

care for persons who fall into these social groups.
 

14.

I am of the opinion that there is also a suspicion of age

discrimination in relation to the group of seniors with low income,

because this group is subject to the same regime as the remaining

population, although the position of its members is not comparable

(regarding this concept of equality, see judgment Pl. ÚS 11/02). It is

constitutionally unacceptable that the so-called health reform was, as

confirmed by the witness, Minister T. Julínek, adopted without any prior

analysis at all of its effects on various social groups, because the

state quite light-heartedly experimented to the detriment of individuals

(classifiable in social groups), which led to violation of their

fundamental rights. In other words, the state did not live up to its

obligation to respect these fundamental rights, or, if appropriate,

protect them. If, according to the witness, this analysis was not

possible, one must ask, where did the Ministry of Health get the

information (repeatedly presented in the media) that it is precisely

seniors who burden or “abuse” the health care system with unnecessary

doctor visits and waste of medicines? If this was an estimate, what was

it based on?
 

15. Respect

for age is a value of our civilization that is manifest, not only in the

constitutional law guarantee of material security for seniors (see Art.

30 par. 1 of the Charter). Our civilization and concept of humanism are

built on recognition of this value. In Czech culture the “purpose” of

respect for age is explained, almost didactically, and without any

moralizing, literally “simplistically” by Jan Neruda’s poem,

“Grandfather’s Bowl.” It vividly gives those who mock morality itself,

that do ut facias, here the reason why, even from a very egotistical and

pragmatic viewpoint, it is advantageous to set a good example for one’s

offspring, if I am to respond to this phrase, used in the judgment

without being supported by the evidence (point 128). We also find

respect for old age, as a cultural-civilizational value, in the

religions from which our civilization grew (the fourth of the Old

Testament’s Ten Commandments, supplemented in the third book of Moses,

where the commandment is expanded to include respect for old people in

general : “Thou shalt rise up before the hoary head, and honor the face

of the old man” (Lev. 19:32). However, since the twentieth century,

after the state began to intervene in various areas of life (often for

good reasons, and based on experience), it is also up to the state, i.e.

up to its bodies (the legislature, as well as the state administration,

interpreting and applying legal regulations), by their activities to

maintain the cultural or civilizational heritage, as the state took over

services that were previously provided by the family or the community.

After all, the general understanding of justice grows from these

civilizational values, and they find their culmination in the modern

concept of fundamental rights.
 


V.
Regulation Conducted from the Table; Judgment from the Ivory Tower
 

16.

In this situation, it is not even surprising that the total amount of

funds that comes into the system from public health insurance was not

even made public before steps to reform health care were taken.

Likewise, it was not made public how these funds are allocated and what

they are used for, at least as proportions of the total amount

collected. However, the eight-member majority of the plenum joined in

the ministerial claim that health care reform was necessary, but it did

not obtain evidence for that claim, because then the Constitutional

Court allegedly “instead of fulfilling the role of the protector of

constitutionality, would become a mere reviewer or analyzer of the

effects of legal regulations” (point 113), which, in this context, is an

exceptionally cynical conclusion that denies the purpose of the very

institution of abstract review of norms (although I favor proceedings on

specific review of norms in a number of my works, I cannot deny the

functional existence of the former proceeding).
 

17.

As a result, the judgment (point 113) quite unacceptably abandons any

review of the effects of the Act on individuals’ fundamental rights, and

leaves the legislature to possibly correct its course in the future, if

problems are found “in the process of applying the statutory

provisions.” The majority adopting the judgment obviously did not at all

consider the understanding of fundamental rights in civilized Europe,

that the very idea of fundamental rights is anti-utilitarian, and

protects every individual without regard to his “social necessity.”

Fundamental rights apply Kant’s maxim of the person as an end in

himself, a person who cannot be turned into an instrument, even for the

“good of the whole, the good of future generations, etc.” It follows

from the Kantian ideal, reflected in the fundamental human rights and in

the idea of a human being endowed with dignity that arises from his

very human essence, that one cannot set off one life against another,

the life of one old man or old woman against the life of an entire, now

young, generation. However, the legislature, confirmed by the

eight-member of the plenum of the Constitutional Court, seemingly built

on the maxim that “when you chop down the forest (implement reforms),

chips will fly (interference in the fundamental rights of an

undetermined and un-sought number of persons).” Through this lens, the

lives of health of individuals, and even less their human dignity, could

not be relevant factors for possible correction of the legislature’s

flawed decision.
 


VI.
Conclusion
 

18.

This approach also clearly contrasts with the approach taken by

constitutional courts in established democratic states. So, e.g., the

Canadian Supreme Court, in the matter Chaoulli v. Quebec (Attorney

General), decision of 6 September 2005, states in point 86: “Under the

charters, the government is responsible for justifying measures it

imposes that impair rights.  The courts can consider evidence concerning

the historical, social and economic aspects, or any other evidence that

may be material.” Point 87 states: “‘[c]ourts do not have to define

goals, choose means or come up with ideas.  They do not have to create

social policies; they just have to understand what the other branches

have created.  No special expertise is required for such an

understanding.’ ...  When the courts are given the tools they need to

make a decision, they should not hesitate to assume their

responsibilities.  Deference cannot lead the judicial branch to abdicate

its role in favour of the legislative branch or the executive branch.”

Finally, point 89 states: “The courts have a duty to rise above

political debate.  They leave it to the legislatures to develop social

policy.  But when such social policies infringe rights that are

protected by the charters [the provincial charter of rights and the

federal charter of rights – author’s comment], the courts cannot shy

away from considering them.  The judicial branch plays a role that is

not played by the legislative branch.  Professor Roach described the

complementary role of the courts vis à vis the legislature as follows

‘Judges can add value to societal debates about justice by listening to

claims of injustice and by promoting values and perspectives that may

not otherwise be taken seriously in the legislative process.’” In

conclusion, point 90 states: “From this perspective, it is through the

combined action of legislatures and courts that democratic objectives

can be achieved.”
 

19. An

institutional guarantee of health care provided without other

significant payments, i.e. only on the basis of public insurance, like

the Czech version established in Art. 31 of the Charter, as described

above, reflects an idea of values that is common to states that we can

described as developed democracies, whether European states, or, e.g.,

Canada. This claim will stand despite the fact that the breadth of the

guarantee, i.e. the breadth of implementing its social function, is

variously modified (from payment-free provision of health care in the

narrow sense of the word, or also hospital services, to moderate

financial co-participation in health care graduated by income, age, and

health of the treated person, or to the payment of hospital services, or

to participation in payment for medicines, again, all graduated with

regard to the abovementioned aspects of the social needs of the treated

person, etc., and all with the possibility to obtain private insurance

for the supplemental payments required on the grounds of financial

co-participation).
 

This

common value is implemented despite the fact that the constitutions of

most of these states do not contain an express guarantee of the

institution of socially considerate provision of health care on the

basis of public insurance. Nevertheless, health care, as a service

provided on the basis of payments into public insurance is an

undisputable, constitutionally guaranteed standard, and sensible

definition of groups of the population to whom care is provided

payment-free is also a standard, for various constitutional reasons. It

may be the functioning of legal and social statehood combined with human

dignity, the direction taken by Germany, or, e.g., protection of life,

and the bodily integrity and safety of persons – e.g., Canada. The fact

that this is a shared value is confirmed by a comparative study obtained

by the Canadian Supreme Court in the abovementioned matter.