The Constitutional Court found No 233 / 2018 Coll.
The Constitutional Court found of 4 September 2018 sp. zn.
Valid
233
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided on 4 September 2018 under point Pl. ÚS 21 / 15 in plenary composed of the President of the Court of Paul Rychetský and judges and judges of Louis David, Josef Fiale, Jan Filip, Jaromír Jirsa, Tomáš Lichovník, Jan Musil, Vladimir Sládeček, Radovan Suchanek (Judge of the Rapporteur), Kateřina Šimáková, Vojtěch Šimíček, Milady Tomková and Jiří Zemánek, on a proposal from the Senate Group of the Senate of the Parliament of the Czech Republic, for which Senator MUDr. Alena Derner, represented by Mgr. Šípán Holub, a lawyer, on behalf of the Czech National Council of the Czech National Council of the Czech National Council, on 8 March, on 11 March 2008.
as follows:
I. Paragraph 10 (3) in the words "in the way that 5 members are elected from candidates submitted by representative employers' organisations and 5 members are elected from candidates submitted by representative trade unions" and Section 10 (5) (b) in the words "in the way that 3 members are elected from candidates submitted by representative employers' organisations and 3 members are elected from candidates submitted by representative trade unions" by the Czech National Council Act No. 280 / 1992 Coll., on departmental, branch, corporate and other health insurance companies, as amended, shall be repealed by the end of 30 September 2019.
II. Decree No. 579 / 2006 Coll., establishing the method of choice and the voting rules for elections to the administrative boards and supervisory boards of the ministerial, branch, corporate and other health insurance companies, as amended by Decree No. 87 / 2008 Coll., shall be repealed with effect from 30 September 2019.
III. The rest is rejected.
Reasons
Subject matter
1. On 8 September 2015, the Constitutional Court received a proposal from a group of 19 senators (hereinafter referred to as "the draftsman '), acting on behalf of Senator MUDr. Alena Derner, to abolish § 10 (3) and (5) of the Czech National Council Act No. 280 / 1992 Coll., on the ministerial, branch, corporate and other health insurance companies, as amended (hereinafter referred to as" the Act on Occupational Insurance') and Decree No. 579 / 2006 Coll., laying down the method of choice and the voting arrangements for the administrative and supervisory councils of the ministerial, business and other health insurance companies, as amended by Decree No. 87 / 2008 Coll.
2. The contested legal provisions govern the composition of administrative boards and supervisory boards of departmental, branch, corporate and other health insurance companies ("occupational insurance companies'). The two councils shall consist of one third of the members appointed by the Government and two thirds of the members elected by the members of the occupational insurance policy insurers and insured by that employee insurance undertaking. Half of the elected members are elected from candidates submitted by representative employers' organisations and half from candidates submitted by representative trade unions. The method of choice and the voting arrangements for elections to the boards of directors and supervisory boards shall be laid down in the contested regulation, according to which all elected members shall be elected by the electorate designated by the employers who, during the period laid down, have paid at least 0,5% of the sum of the insurance premiums in question. Two electors may be designated for each 0,5% paid (Paragraph 6). Other employers or insured persons in these elections cannot vote or designate voters to represent them.
3. The appellant sees in the manner thus provided for in the formation of administrative boards and supervisory boards of occupational insurance undertakings that are inconsistent with the right of citizens to participate in governance directly or freely by the choice of their representatives as provided for in Article 21 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as the Charter), the principle of universality and equality of electoral law under Article 21 (3) of the Charter and the right of citizens to access elected and other public functions under Article 21 (4) of the Charter. In its view, occupational insurance companies have undoubted public law status, which means that no group of insured persons can be excluded from the right to be elected to their institutions. However, contrary to the law, the contested decree grants the right to vote only for voters designated by large employers and not for employers smaller or insured persons who are self-employed or economically inactive. This ceases to be a transparent way of managing occupational insurance companies and the democratic mechanisms of its control are being dismantled, as a result of which the contested legislation is incompatible with the right to health care free of charge and to public health aid provided for in Article 31 (2) of the Second Charter.
Arguments of the appellant
4. First of all, the appellant underlines the nature of the occupational insurance undertakings as public institutions, having regard to the purpose of their establishment, the method of raising funds and the composition of their insured persons. Employers' insurance companies play a public-law role in ensuring citizens' solidarity towards health care, thereby enabling their right to free health care and to public-insurance medical devices under the conditions laid down by the Act pursuant to Article 31, second sentence, of the Charter. At the same time, they treat almost exclusively public funds, since, although their management is not directly linked to the state budget, the collection of insurance premiums from which health care is paid is based on the legal obligation for insured persons to make substantial payments, whether directly or through an employer. The funds thus obtained may be reallocated between the different health insurance companies, taking into account the differences resulting from the solvency of the payers and the level of the cost of health care.
5. Contrary to the 1990s, no employee insurance company can be seen anymore by "belonging" to an employer who is its founder and its employees. Having regard to Article 11 (1) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended, (hereinafter referred to as the "Public Health Insurance Act '), according to which every citizen, irrespective of the professional capacity, has the right to choose any health insurance undertaking, there is no longer, at present, any employee insurance company that has its insurance portfolio composed exclusively of existing employees of its original founder. There are also self-employed persons and persons who are economically inactive for whom the insurance State pays.
6. According to the appellant, those characteristics of occupational insurance companies prevent the possibility of limiting the right to vote and the right to be elected only to certain employers and trade unions. After all, in the past, the insured persons were always allowed to participate in the management of occupational insurance companies. Their direct participation was envisaged by both the legislation of the first Republic and the basic provisions of the health system adopted after 1989. Paragraph 10 of the Employee Insurance Act in its original version provided for a third of the representation of employers, insured persons and the State in the institutions of the Employee Insurance Company. The representatives of employers and insured persons were elected, while the right to vote and to be elected was not deprived of any insured person. The need for nominations by trade unions was not foreseen nor were "small" and "medium" employers excluded from decision-making. This legislation continued with minor changes until 30 July 2004.
7. The amendment of the Employee Insurance Act by Act No. 438 / 2004 Coll. further strengthened the status of insured persons by obtaining a certain blocking power for major decisions. All members of the insured persons present may, as well as all representatives of the State or the employers of the insured persons present, object to the decision of the Management Board that the proposed decision may jeopardise the financial balance of the public health insurance system or the balanced management of the occupational insurance undertaking. In such a case, the Management Board has not taken a decision and has set a time limit of not more than 3 months for additional documents to be submitted to confirm or refute that objection. No later than 30 days after the expiry of that period, the Management Board was then to renegotiate the proposed decision, requiring the consent of at least two thirds of all its members to adopt it.
8. According to the appellant, the fundamental deterioration and degradation of democratic mechanisms for the control of occupational insurance companies was to take place only by the amendments implemented by Act No. 117 / 2006 Coll. Its original proposal was supplemented by provisions in the Chamber of Deputies, which entrusted the appointment or election of all members of the board of directors and supervisory boards of the employees' insurance companies to the sole responsibility of the Government and the Chamber of Deputies. However, the Senate returned this proposal with an amendment. It was essential that a part of the members of those councils should remain elected by the employer and the insured person in the manner provided for by the contested legal provisions. However, the participation of insured persons in the administration of occupational insurance companies was thus only seemingly maintained. The right to be elected was limited only to representatives of "large" employers and trade unions. Furthermore, the participation of insured persons was further suppressed by the contested decree, which, beyond the already restrictive law, introduced a rule of indirect choice and a system of electors appointed exclusively by "large" employers.
9. The appellant is of the opinion that the public nature of occupational insurance companies does not allow the right to be elected only to candidates in the law or to an implementing decree in no way defined by the representative employers' organisations and representative trade unions. It is not acceptable for other insured persons to be prevented from codecision on the operation of their own health insurance companies, although they may form a significant part (even the majority) of the insurance portfolio. The contested legislation denies passive voting rights not only for self-employed persons and those who are economically inactive, but also for workers who are not members of trade unions, even though this membership is not their responsibility and cannot be forced to do so. According to the appellant, these persons, contrary to Article 21 (1) and (3) of the Charter, cannot therefore participate in the administration of occupational insurance undertakings as public institutions on the basis of universal and equal voting rights.
10. The inconsistency is also found with the constitutionally guaranteed active electoral right. Pursuant to Article 21 (3) of the Charter, the conditions for the exercise of voting rights are laid down by law. Thus, the legislature cannot delegate this power to a substatutory law, thereby actually leaving executive powers to determine who can vote and who can be elected. However, the contested decree does so. In its provisions, Sections 6 and 7 provide for an indirect system of elections, since the choice of members of both the board of directors and the supervisory board is entrusted to voters who are designated exclusively by the employer according to the amount of premiums paid. Thus, there are no voters representing "medium 'and" small' enterprises (or their employees), small craftsmen and farmers, lawyers, doctors, accountants etc. Voters designated by "large" employers choose not only the "employer" one third of the members of those councils, but also one third "per insured person." This means that while the current health system forces citizens to pay annual amounts in the order of hundreds of billions of crowns for compulsory health insurance, it also deprives the vast majority of them of any possibility of democratic participation in the management and protection of selected funds against waste and corruption. This limits them to the possibility of implementing their right to free health care and to public health care as provided for in Article 31 (2) of the Second Charter.
11. In favour of its argument, the appellant also points to the legislation governing the choices of the health insurance authorities in the Federal Republic of Germany, which is laid down in § 43 et seq. of the fourth Social Code (Sozialgesetzbuch, Viertes Buch; SGB IV). This adjustment gives insured persons a real opportunity to influence the personnel composition of the health insurance authorities. It allows all insured persons who fulfil the statutory conditions to vote. In doing so, insured persons who are not organised in trade unions or other associations may also run if they support their candidacy by signing a sufficient number of persons.
Proceedings before the Constitutional Court
12. The Judge-Rapporteur referred to in Article 42 (4), in conjunction with Article 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, sent the proposal to the chambers of Parliament and the Ministry of Health as participants and, respectively, to the representatives of the parties, as well as to the government and ombudsman as authorised to intervene as interveners.
Observation of Parliament's chambers
13. The Chamber of Deputies and the Senate, both in their observations of 9. 10. 2015 and 13. 10. 2015, signed by the Presidents of the individual chambers of Jan Hamakk and Milan Štěm, briefly summarized the course of the legislative process in which amendments to the Employment Insurance Act concerning the contested provisions were discussed.
Government observations
14. On 16. 10. 2015, the Constitutional Court received, within the statutory period prescribed by the Government, the notification that, pursuant to the Government Resolution of 12. 10. 2015, No 817 was entering the proceedings.
15. The Government's statement of 20 October 2015, signed by the then Minister for Human Rights, Equal Opportunities and Legislation Mgr. Jiří Dienstbier, shows that Article 21 of the Charter does not fall at all on the choice of the bodies of the occupational insurance companies. The participation of insured persons, employers and the State in these institutions is an expression of the fact that they are individual categories of payers. Insurers pay part or all of the premium depending on whether they are employees, self-employed or persons without taxable income. Employers then pay part of the premium for their employees and the State is its payer for a group of so-called state insurers.
16. Option to consider the choice of the bodies of occupational insurance undertakings as exercising political law under Article 21 The charter is significantly relativated by the right of each insured person to choose the health insurance company to be registered with. In addition to employee insurance companies, the General Health Insurance Company of the Czech Republic, whose status is governed separately by the Act of the Czech National Council No. 551 / 1991 Coll., on the General Health Insurance Company of the Czech Republic, as amended. The members of the bodies of this insurance company are appointed from one third by the Government and from two thirds by the Chamber of Deputies according to the principle of proportional representation in its represented political parties, which means that the insured persons only influence its activities indirectly through elections to the Chamber of Deputies. Indeed, it cannot be argued that a large majority of around 6 million insured persons of this insurance company would be denied the possibility of a democratic participation in the management of selected funds or protection against their waste. Any insured person of an occupational insurance undertaking may assess whether the possibility of participating in the activities of the insurance undertaking in which he is registered is sufficient or whether it would not be more appropriate to choose to belong to another insurance undertaking. Public control of the management of occupational insurance companies is ensured by means of control mechanisms contained in generally binding legislation (e.g. by checks carried out by the Ministry of Health, the Ministry of Finance or the Supreme Audit Office).
17. The Government does not call into question the public nature of occupational insurance companies, however, given the specificity of their position in the public health insurance system, it cannot be identified with the nature of other institutions or bodies engaged in public administration activities. In this respect, it shall accentuate their status as legal persons as well as entering into private law relations with health service providers in the performance of their tasks.
18. As regards the right to be elected to the institutions of occupational insurance undertakings, the Government states that the contested scheme does not exclude any insured person from the possibility of being a candidate. The right to propose candidates is limited to representative employers' organisations and representative trade unions mainly because they represent a significant proportion of the premiums paid. However, other practical reasons may also be mentioned. It is hard to imagine that every individual could give their nomination. According to the Government, both terms are in practice interpreted very extensively by employment insurance companies, which means that candidates can be proposed by any employer or trade union organisation. According to the information available, none of the employees have yet rejected a candidate because the organisation that proposed it did not fulfil the condition of "representativeness."
19. In order to limit the right to vote to those authorities, the government notes that the limits on the level of premiums which are subject to the employer's authorisation to appoint delegates for the purpose of making this choice were chosen at the time the decree was issued to represent an adequate proportion of the premiums paid. However, it may be accepted that the legislation may no longer correspond to the current situation and may partially restrict certain groups of insured persons. In theory, there may be a situation that none of the employers will fulfil the condition to withdraw 0,5% of the premiums from the total amount of premiums to be redistributed over a specified period. Some groups of premium payers could even be discriminated against by this rule if, in total, they paid comparable or higher amounts to the public health insurance scheme. However, in the view of the Government, all these deficiencies can only be an incentive to amend the legislation contained in the contested decree and not a reason for its annulment for contradicting Article 21 of the Charter, which is not applicable to elections to the institutions of occupational insurance undertakings anyway.
20. As regards the objection that the legislation on the method of choice contained in the contested decree is contrary to Article 21 (3) of the Charter, according to which the conditions for the exercise of the right to vote are laid down by law, the Government notes that even before the amendment made by Law No 117 / 2006 Coll. has become effective, the method of voting for the bodies of employee insurance companies has not been modified at the level of the law. Before adopting the contested decree, the method and organisation of the elections were even fully within the competence of the employee insurance companies. It is therefore not clear why the appellant makes the previous legislation as a model. In addition, the Government adds that even at the time of the adoption of the Employment Insurance Act it did not apply that the employee insurance family was composed exclusively of insured persons linked to the founders of those insurance companies. Even then, some insured persons were limited to passive and active voting rights in the institutions of occupational insurance companies.
21. Nor is the point of the appellant's voucher for the redistribution of insurance premiums, which serves to reconcile differences between certain health insurance companies, particularly in relation to the uneven number of State and costly insured persons contained in their tribes. The funds entering the reallocation are those which the health insurance company must collect from its insured persons. In principle, with the exception of the effectiveness of the selection, the amount of the premium collected does not have the opportunity to influence it, as it is given by generally binding legislation. The management of health insurance companies, or the management of funds after redistribution, is also considerably limited by law (allocations to operational and reserve funds, prevention funds, etc.).
22. The Government does not consider the infringement of the right to free health care and to public health care under Article 31 (2) of the Second Charter to be relevant because the health insurance company is not entitled to reduce the legal scope of this right in any way. Each insurance undertaking shall provide health services to its insured persons to the extent and quality specified. In the view of the Government, the motion of a group of senators is not justified and should be rejected by the Constitutional Court. However, should it come to a different conclusion, it should postpone the enforceability of the finding so that new legislation can be adopted under the standard legislative process. The activities of occupational insurance companies could be crippled if the choice of members of their bodies is impossible.
Communication from the Ombudsman
23. Ombudsman Mgr. Anna Shabatová, Ph.D., by letter dated 29 September 2015 It informed the Constitutional Court that it did not exercise its right to intervene.
Replication of the appellant
24. Those comments were sent to the appellant, who replied by a reply dated 8 January 2016. It pointed out that Act No. 117 / 2006 Coll., which amended Section 10 of the Employee Insurance Act, was dealt with in Parliament in an irregular manner.
25. The draft Act initially did not concern the position of the board of directors and supervisory boards of employee insurance companies. Only at second reading was a large-scale amendment to limit their independence, remove direct control by insured persons and subject occupational health insurance companies to control by political parties. The Management Board was to consist of five members appointed by the Government and 10 members elected by the Chamber of Deputies according to the principle of proportional representation of political parties in the Chamber of Deputies. Similarly, the choice of supervisory board of employee insurance companies has been modified. That amendment was adopted and, in this form, the bill was passed on to the Senate, where it was criticised. Among other things, it was criticised that the amendment was not dealt with in the ordinary comment procedure. The Senators rejected the change in the choice of members of the board and supervisory board of the employees' insurance companies and instead enforced their own 'compromise' amendment, which corresponds to the current text of the legal regulation. The Chamber of Deputies approved the law as amended.
26. The original model of independent management boards and supervisory boards established and controlled to a large extent directly by the insured person was completely reworked in this way in less than three months. The compromise Senate version introduced a situation in which the board of directors and supervisory boards of employee insurance companies are not derived from the people, but is dominated by a privileged minority. It is a solution that is more in line with the corporate structure of a state which is, however, unacceptable in a democratic state. This absolutely fundamental change took place without public debate, except for reminder proceedings and without relevant expert opposition, through surprising and hastily written amendments.
27. The appellant also stresses that employee insurance companies are public institutions managing public funds and should be derived from the people as public authorities. On the contrary, it is not acceptable for their board of directors and supervisory boards to be constituted only by certain insurance payers ("large" employers), whereas others have been deprived of that right ("small" employers, self-employed persons). It is a fully universal insurance undertaking for which there is no reason to distinguish between individual insured persons and to grant a privileged position in the choice of authorities and in the administration of the public only one of them. Such unequal treatment is not justified in any way. In fact, the strains of employee insurance companies are not only made up of persons linked to the founders of the insurance company, and therefore there is no reason to justify only part of the interest groups.
28. Insurance is paid by many persons who are not represented. The applicant submits that according to the available statistics and annual reports, health insurance companies had a total of approximately 10.4 million insured persons in 2014, of which about 60% were so-called state insured persons (pensioners, students, unemployed persons, etc.) and about 200,000 were non-taxable persons. The remaining 4 million were economically active citizens, paying health insurance premiums. Of these, about 900,000 were self-employed, and today they remain completely unrepresented in health insurance companies. They are neither members of the trade unions nor representative employers by nature. These are often high-income persons, which also pay high contributions (most lawyers, a large proportion of doctors or other members of the professions).
29. As regards active voting rights, the contested legislation, according to the appellant, limits the possibility of designating the electorate only to those employers who have paid at least 0,5% of the total premiums received by the insurance undertaking. Given the size of these amounts, it will almost exclusively be large enterprises, while the vast majority of SMEs are excluded. The appellant has statistics showing that 99.83% of economic operators, insurance payers, who employ over 60% of employees in the business sector are not represented. This is a fundamental restriction on voting rights.
30. The applicant does not agree that the control of employee insurance companies can be placed outside the scope of Article 21 of the Charter. It points out that the elections to the bodies of occupational insurance undertakings are of fundamental importance for the exercise of the right to free health care and public health care under Article 31 (2) of the Second Charter. It is health insurance companies that have a significant impact on the availability of health care. Although legal relations relating to the provision of medical care are private legal in nature, this does not change the fact that in some cases health insurance companies directly decide on the claims of insured persons. They also exercise their powers in the area of the collection of insurance premiums, the imposition of periodic penalty payments and sanctions, which are undoubtedly legal relationships that cannot be regarded as private law. While the Act regulates the activity of health insurance companies in providing paid care significantly, it assumes in many processes that they are under the control of insured persons and that they represent their interest. The possibility of supervision by the Ministry of Health or the Ministry of Finance or the Chamber of Deputies (approval of health insurance plans and accounts) is in practice more theoretical, whether for personnel reasons or simple number of contracts concluded, amendments or other legal acts.
31. The need for democratic feedback between the interests of all insured persons and the conduct of key employees of insurance undertakings is due to the fact that there are a number of processes in which health insurance companies decide on billion amounts without being regulated by anything other than the supervision of the Board of Directors or the Supervisory Board. In this respect, the Public Health Insurance Act provides wide scope, for example, for the inclusion of new providers in the contractual network (decision-making on whom the contract will be concluded). The scope for subjective and unequal access exists in the negotiation of individual reimbursement supplements with health service providers, which is a derogation in payment terms, before the so-called reimbursement decree is established. The health insurance undertaking may thus favour certain specific providers. It is also possible to mention decisions on the reimbursement of medicines, especially when it comes to costly and life-saving modern medicines, decisions on the reimbursement of medical devices, approval of care by review doctors or other treatment of public funds.
32. The Constitutional Court should decide to repeal the contested legislation and postpone the enforceability of its finding so that new legislation can be adopted in the context of the standard legislative process.
Expression of the Ministry of Health
33. The Ministry of Health also commented on the proposal on the request of the Judge-Rapporteur after the expiry of the statutory deadline. In its observations of 17 March 2016, signed by Mgr. Jan Bachina, Director of the Legal Department, it reiterated a substantial part of the Government's observations. It pointed out that the substance of the constitutional legal review of the rules governing the appointment of occupational insurance institutions should not be its suitability, but only its ability to comply with the limits laid down by the constitutional order. The current legislation shows some shortcomings that arise mainly from the overrun of the model of occupational insurance companies as bodies which carry out public health insurance mainly for employees of their founders (employers). Their family members are now a significant number of people who are not directly linked to their employers through an employment relationship. Thus, their position may be optically worse, since the legislation gives candidates and voters a stronger status for those who are more significant in terms of the total amount of premiums paid. However, it cannot be concluded that this legislation would be contrary to Articles 21 and 31 of the Charter.
34. The Ministry of Health respects the nature of occupational insurance companies as public institutions under Act No. 106 / 1999 Coll., on Free Access to Information, as amended, as well as the conclusion that they are, in a broader sense, involved in the administration of public affairs. However, this is not a typical exercise of public authority. Employee insurance companies are hybrid. Contrary to their traditional concepts, they now perform in a competitive market and carry out public health insurance only on the basis of permits other than private-law activities.
35. It cannot be concluded that the right to participate in the administration of public affairs includes a share in the personnel formation of their bodies. In the opinion of the Ministry of Health, it is difficult to imagine that all their insured persons have the right to vote in all employment insurance companies. In this context, it points out the difficulties involved in financing and organising such elections. The requirement to direct the elections of members of the institutions is not fulfilled even for other public institutions. Right to vote and right to be elected pursuant to Article 21 The Charter concerns only the right of election to representative bodies. In addition, trade unions are legally representing the social interests of all workers at all levels, such as health care. Any insured person may propose to them that his or other person proposed by him be proposed as a member of the board of directors or supervisory board of the occupational insurance company. An application for annulment of the contested legislation should be rejected.
Expression of the Association of Health Insurance Companies of the Czech Republic
36. The Constitutional Court on the request of the Judge-Rapporteur finally received comments on 18 March 2016 from the Association of Health Insurance Companies of the Czech Republic ("the Union '), signed by its Executive Director Mgr. Martin Balada. In particular, the association points to the very limited public character of occupational insurance companies. According to Section 11 of the Employee Insurance Act, an employee insurance company operates primarily with its own property and only alongside that entrusted to them. In addition, public funds may also be handled by entities other than public institutions, or by entities which could, for this reason alone, be placed in the context of public administration. The legal obligation to pay insurance premiums under liability insurance for damage caused by the operation of the vehicle is an obvious (and probably the nearest) example.
37. Employee insurance companies and their activities are, according to the Association, only one of the articles in the chain enabling citizens to exercise their right to free health care and medical supplies under Article 31, sentence of the second Charter. Despite the fact that their membership is not reserved only to employees of a particular employer or group of employees, occupational insurance companies remain relocated, branch and corporate, and cannot be considered "general ', as is the case with the General Health Insurance Company of the Czech Republic. It is part of their essence that they are mostly focused on one or the other of the staff. It is therefore legitimate when it is for the benefit of insured persons of this type that certain preferences are set at the expense of other insured persons, including in the case of the personnel formation of the occupational insurance authorities.
38. Although the nature of health insurance undertakings as public institutions may be accepted, it is always necessary to assess for what purposes or in what context they can be regarded as public institutions. The nature of a public institution is, for example, relevant in terms of determining the range of bodies required under the Freedom of Information Act. However, in any event, it does not mean that they can be arbitrarily attributed to the need for any public administration or to a specific form of personnel forming their bodies. Moreover, this demonstrates the diverse nature of bodies which, according to the case law, can be regarded as public institutions and, after all, the corresponding variety of ways in which the personnel formation of the bodies of different public institutions takes place in accordance with the law, without being suspended from a constitutional standpoint (for example, state enterprises). Sometimes public participation in the staffing of public institutions is allowed in very limited ways, sometimes at all.
39. If there is no direct link between the legal definition of a public institution and the binding staffing of its bodies beyond the scope of the law, there may be, according to the association, a link between that public institution and the binding staffing of its bodies based on the Constitution of the Czech Republic guaranteed electoral law. Importing this link constitutes a deep misunderstanding of the contents of Article 21 of the Charter. In it, the guaranteed political right to vote for its representatives and to be elected as representatives concerns only those bodies which can be designated as representative bodies. They must always be public authorities, whether directly by State authorities or by local authorities. However, this does not apply in the case of legal entities, such as public undertakings or health insurance companies. The basic mission of the members of these bodies is not to represent their constituents, but to ensure the proper functioning of the body in which they operate, in one form or another.
40. Another reason for which the voting right under Article 21 of the Charter cannot apply to the election of members of public institutions is that members do not have an election but a term of office. Similarly, there is no reason for the election of the members of these institutions to apply a restriction of the electoral right to citizens of the Czech Republic or to persons over 18. The exercise of the universal right to vote and to be elected as a member of the institution of the occupational insurance undertaking cannot be envisaged even at the level of the person-group defined by all insured persons of the occupational insurance undertaking. This is hindered, as indicated, especially by the age barrier, which is based on incapacity and which is certainly important not only for the possibility of being elected, but also for the possibility of voting. Moreover, it would be more than difficult and economically challenging to actually organise such elections.
41. Currently, only candidates of "representative" trade unions and employers can be proposed to the employment insurance authorities. Therefore, for a certain (in summary of a majority) circle of persons, proposing as a candidate is more likely than for other, sub-circles of persons, but this does not mean that passive "electoral right" is completely denied to those persons. In fact, "representative 'trade unions and employers can propose as a candidate in principle anyone, that is to say, a candidate who recruits himself from among those who are referred to in the proposal as persons apriciously excluded from the possibility of being candidates. It considers that the application for annulment of the contested legislation is unfounded.
Oral proceedings
42. According to Article 44 of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court decided on a case without oral hearing, as it could not be expected to further clarify the case.
Proceedings before the Constitutional Court
43. The Constitutional Court notes that it is competent to discuss the application for annulment of the contested legal provisions and the contested decree and that the application fulfils all the formal requirements laid down by law and was submitted by a legitimate appellant [Paragraph 64 (1) (b) and (2) (b) of the Constitutional Court Act]. At the same time, it finds none of the grounds for inadmissibility of the application or the grounds for termination of the proceedings. The procedural assumptions of the design procedure are therefore met.
Assessment of the competence and constitutional conformity of the procedure for the adoption of the contested legislative provisions
44. The Constitutional Court first dealt with the proposal to abolish Article 10 (3) and (5) of the Employee Insurance Act. In fact, if it had already fully complied with the proposal in this section, it would have also stated, under Paragraph 70 (3) of the Law on the Constitutional Court, that the contested order would have ceased to be valid, thereby rendering its own review of the contested order superfluous.
45. Pursuant to Article 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the assessment of the constitutionality of the law with the constitutional order consists of answering three questions: 1. whether it was adopted and issued within the limits of the Constitution of the established competence, 2. whether it was adopted in a constitutionally prescribed manner and 3. whether its content complies with constitutional laws.
46. The contested provisions became part of the Employment Insurance Act on 1 April 2006, when its amendment by Act No. 117 / 2006 Coll., amending certain public health insurance laws took effect. Paragraph 10 (3) of the Act cited was supplemented, with effect from 1 January 2008, by an amendment made by Act No 261 / 2007 Coll., on the stabilisation of public budgets, in the way that a sentence was inserted after its first sentence as follows: "The members of the Administrative Council appointed by the Government shall be appointed and dismissed by the Government on a proposal from the Minister for Health. 'The amendments made by Act No. 298 / 2011 Coll., amending Act No. 48 / 1997 Coll., on Public Health Insurance, and amending and supplementing certain related laws, as amended, and other related laws, were inserted in the provisions of Sections 10 (3) and 10 (5) (b) with effect from 1 December 2011 for the words" members elected' by the words "from among insured persons of this occupational insurance company '.
47. In the case of all three of these acts, Parliament had the power to adopt them pursuant to Article 15 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution). From the statements of his chambers, as well as other publicly available documents relating to the legislative process, the Constitutional Court found that the Government had submitted to the Chamber of Deputies on 27 September 2005 a draft law amending certain public health insurance laws (House Press No. 1150, 4th Election, 2002-2006). The draft law initially did not affect the choice or appointment of members of the board of directors and supervisory boards of employee insurance companies. Such an amendment was tabled by MEP MUDr. Jaroslav Krákora (House Press No. 1150 / 2, letter B, paragraph 17) at the 51st meeting of the Chamber of Deputies on 7 December 2005. According to this amendment, all members of the Administrative Councils and Supervisory Councils should have been appointed by the Government or elected by the Chamber of Deputies. 84 of the 136 Members present voted in favour of the amendment, 42 opposed. The Chamber of Deputies subsequently approved the bill at its third reading on 16 December 2005 at the same meeting (resolution 2075), when 80 of the 134 Members present voted for it, 51 opposed and 3 abstained.
48. The Senate discussed the draft law (Senate Document No 235, 5th term of office, 2004- 2006) at its 9th session on 9 February 2006 and returned it to the Chamber of Deputies with amendments including the new text of the contested provisions (Resolution No 348). It was adopted by an amendment to the Committee on Health and Social Policy, which covered the wording of Sections 10 (3) and 10 (5) of the Law on Occupational Insurance with a view to maintaining the participation of insured persons and employers in the election of members of the board of directors and supervisory boards of occupational insurance companies (Resolution No 53 / 2006 of the Committee on Health and Social Policy of 8.2.2006, point 7 of the Annex). 66 of the 71 senators present voted in favour of the amendment, no one opposed it, and 5 senators abstained. 67 out of 71 senators voted back, no one voted against, four senators abstained. The Chamber of Deputies of 14 March 2006 at its 54th session approved a draft law, as approved by the Senate (Resolution 2268), when 109 of the 178 Members present voted for it, 13 and 56 abstained. The law adopted was delivered to the President of the Republic on 15 March 2006 and signed on 29 March 2006. His publication took place in the Collection of Laws on 31 March 2006 in the amount of 39 under No. 117 / 2006 Coll.; it became effective on 1 April 2006.
49. The draft law on the stabilisation of public budgets (House Press No. 222, 5th Election Period, 2006-2010) was submitted by the Government to the Chamber of Deputies on 24 May 2007. The Chamber of Deputies approved it at the third reading on 21 August 2007 at its 18th meeting (Resolution No 389), when 101 of the 200 were voted against. The Senate, at its 8th meeting on 19 September 2007, expressed the will not to deal with the bill (Senate Press No. 106, 6th term, 2006-2008) (Resolution No. 192). 49 of the 80 senators present voted in favour, 27 opposed and 4 abstained. The law adopted was delivered to the President of the Republic on 25 September 2007 and signed on 5 October 2007. His publication took place in the Collection of Laws on 16 October 2007 in the amount of 85 under No. 261 / 2007 Coll.; it became effective on 1 January 2008.
50. The draft law amending Act No. 48 / 1997 Coll., on Public Health Insurance and amending and supplementing certain related laws, as amended, and other related laws (House Press No. 325, 6th Election Period, 2010- 2013) was submitted by the Government to the Chamber of Deputies on 13 April 2011. The Chamber of Deputies approved it at its 19th meeting (Resolution 592) at its third reading on 21 June 2011, when 105 of the 180 Members present voted for it, 73 opposed and 2 abstained. The Senate discussed the bill (Senate Press No. 148, 8th term of office, 2010- 2012) at its 10th session on 21 July 2011 and rejected it. 25 senators voted in favour, 47 opposed and 2 abstained. The Chamber of Deputies of 6 September 2011, at its 21st meeting, remained on the original bill (Resolution 668). 103 of the 177 Members present voted in favour, 68 opposed and 6 abstained. The law adopted was delivered to the President of the Republic on 15 September 2011 and signed on 29 September 2011. His publication took place in the Collection of Laws on 14. 10. 2011 in the amount of 105 under No. 298 / 2011 Coll.; it became effective on 1. 12. 2011.
51. These findings make it possible to state that, in the legislative process, all three laws have been followed by the constitutionally prescribed sequence and the majority necessary to approve the draft law in the individual chambers of Parliament. The adopted law was also delivered to the President of the Republic, who did not exercise his right to return it to Parliament and signed it.
52. In addition to the above findings, the Constitutional Court had to comment on the appellant's objections which it made in its observations of 8 January 2016. The appellant pointed out the non-standard way of adopting the contested legal provisions, which was intended to consist in the fact that the government's draft law, which was declared as Act No. 117 / 2006 Coll., initially did not intend at all to change the way in which members of the board of directors and supervisory board of employees were chosen. This happened only on the basis of an amendment by one of the Members at second reading, which was to be discussed without adequate public debate, apart from a comment procedure and without any relevant expert opposition.
53. The Constitutional Court did not find these facts to constitute a departure from the constitutional requirements relating to the legislative process. However desirable, from the point of view of the interest in the transparency of the legislative process and the debate with it over draft laws, that amendment should not fundamentally deviate from the subject matter of the draft law, this fact alone does not create the unconstitutional nature of such a procedure. It is essential whether there is a link between the amendment and the draft law in the form of a "close relationship 'to the content and the system of legislation, i.e. whether there is no departure from the requirement of the content consistency of the law, and therefore from the requirements of its predictability, clarity and internal inconsistencies [for example, the finding of 15.2.2007 sp. zn. Pl. ÚS 77 / 06 (N 30 / 44 SbNU 349; 37 / 2007 Sb.), the finding of 31.1.2008 sp. This link is clearly established in the present case. Neither the amendment of a Member approved in the Chamber of Deputies nor the amendment of the Senate has removed from the scope of the draft law under discussion.
54. The appellant also argued that the draft law had been approved in the form of an amendment to the contested provisions, which was not the subject of a comment procedure. The Constitutional Court notes, however, that the Court of First Instance notes that the Court of First Instance is part of a procedure prior to the submission of a government bill or other legislation pursuant to the legislative rules of the Government, approved by Government Resolution 188 of 19.3.1998, as amended, with its failure to comply with the constitutional requirements of the law or other legislation [e.g. the finding of 18.8.2004 sp. zn. Pl. ÚS 7 / 03 (N 113 / 34 SbNU 165; 512 / 2004 Sb.), Part VII, or the finding of 13.12.2016 sp. Pl. ÚS 19 / 16 (N 237 / 83 SbNU 677; 8 / 2017 Sb.), paragraph 56]. Moreover, the legislative rules of the Government do not foresee that an amendment to the Government's bill should be the subject of a reminder procedure and therefore there could be no breach of the law.
55. For the sake of completeness, it is added that no other facts that would call into question the constitutionality of the legislative process have been found for the other two laws [the question of the way in which Law No 261 / 2007 Coll. was adopted has already been dealt with in detail by the Constitutional Court in the sp. zn. to Act No. 298 / 2011 Coll. then expressed in the decision of 20.6.2013 sp. zn. Pl. ÚS 36 / 11 (N 111 / 69 SbNU 765; 238 / 2013 Coll.)]. It may be concluded that the contested provisions have been adopted in a constitutional manner.
The contested provisions of the Employee Insurance Act and their context
56. Paragraph 10 (3) and (5) of the Employee Insurance Act, which the appellant proposes to abolish, regulate the composition of the board of directors and supervisory boards of the Employee Insurance Corporation and the wording thereof is as follows:
...
(3) The Management Board of the Employee Insurance Corporation consists of five members appointed by the Government and 10 members elected by the Employee Insurance Agency and those insured by the Employee Insurance Company, in a way that 5 members are elected from candidates submitted by representative employers' organisations and 5 members are elected from candidates submitted by representative trade unions. The members of the Administrative Board appointed by the Government shall be appointed and dismissed by the Government on a proposal from the Minister for Health. The method of choice and the electoral order shall be laid down by the Ministry of Health by decree.
...
(5) The Board of Supervisors of the Employee Insurance Corporation is composed of:
(a) three members appointed and withdrawn by the Government on a proposal from the Minister of Finance, the Minister for Labour and Social Affairs and the Minister for Health;
(b) 6 members elected from among the insured persons of this occupational insurance undertaking by the employer and the insured persons of the occupational insurance undertaking, in the manner that 3 members are elected from candidates submitted by representative employers' organisations and 3 members are elected from candidates submitted by representative trade unions. The method of choice and the electoral order shall be laid down by the Ministry of Health by decree. '
57. The assessment of compliance of the contested provisions with the constitutional order cannot be carried out without taking into account the relevant legislation. First of all, public health insurance has been carried out by the General Health Insurance Company of the Czech Republic and by occupational insurance companies since the beginning of the 1990s. 20th century. The Act on the General Health Insurance Company of the Czech Republic, which was adopted in 1991, provided that this health insurance company carried out general (public) health insurance in all cases where some of the departmental, branch or corporate health insurance companies did not do so (Paragraph 2 (1)). The effective establishment of occupational insurance companies was then taken place in 1992 when the Law on Occupational Insurance became effective.
58. By setting up employee insurance companies, the legislator - at least according to the explanatory memorandum (Press No. 654, Czech National Council, 6th Election Period, 1990- 1992) - attempted to build on the organisation of sickness insurance that existed in Czechoslovakia before World War II. The sickness insurance companies (formerly cash registers) have been established for the purpose of securing employees in the case of their illness in various labour sectors since the 1980s (cf. Law No 33 / 1888) on workers' sickness insurance. The legislator assumed that their pluralism would be maintained even after participation in the sickness insurance was gradually applied to all employees. The Act No. 221 / 1924 Coll., on the insurance of employees in the event of illness, disability and old age, which at the time regulated the health insurance of the majority of employees, is already in effect, making it possible to look at the organisation of the health insurance (sick) at the time. According to this law, sickness insurance was carried out by sickness insurance companies, which in addition to the county sickness insurance companies were also agricultural insurance companies (for agricultural and forestry workers), racing companies (for persons employed in the establishment), social insurance companies (for persons employed in the business community), or gremals (if applicable for the trader community) and federal sickness insurance companies. However, it was not a single sickness insurance institution, since the sickness insurance of certain groups of employees was governed by other laws. In particular, the Act No. 221 / 1925 Coll., on sickness insurance for public servants, which applied to employees in the service of the State or various public bodies. This Act entrusted the implementation of sickness insurance to the Public Employees' Treatment Fund and special funds.
59. The sickness insurance system under the Act on the insurance of employees in the event of illness, disability and old age was built on several basic principles. Individual employees were obliged to take part in it and had to be insured for this purpose with a sickness insurance company whose determination was based on who their employer was. The sickness insurance company could not be chosen freely. However, the sickness insurance system has been significantly decentralised compared to the present. Sickness insurance companies, whose total number was several hundred, were much more linked to a particular region or particular employer. The elections to the authorities of these insurance companies were of a general nature, in fact, taking into account that all insured persons were able to take part in them, which corresponded to the detailed arrangements for the right to vote in this law (supplemented by Government Decree No. 24 / 1930 Coll., which gives the order of election to sickness insurance companies and arbitration courts established under the Law on the Insurance of Employees in the event of illness, disability and old age). The insured persons of each of them, to whom the law granted the right to vote, voted for a period of four years by a general group of delegates, which was a representative body of the insured persons and had between thirty and one hundred fifty members (a specific number of dependants on the statutes of the sickness insurance company). At the same time, members of the Board of Directors, which managed and represented the sickness insurance company in all matters not covered by the general meeting of delegates, and members of the Supervisory Committee, which oversaw compliance with the law, statutes and other provisions, as well as the overall management of the insurance undertaking, were elected. Eight members of the 10-member board were elected by the general meeting of delegates and two members by the employer. In the case of the Supervisory Committee, this was the reverse, when out of ten members two were elected by the general meeting of delegates and eight employers. Thus, through these bodies, both insured persons and employers were able to influence the activities of occupational insurance companies in providing available health care (typically when concluding contracts with doctors or medical institutions) to meet their needs.
60. The structure of the sickness insurance institutions (including the administrator as its chief official) has remained in place throughout the period of the so-called First Republic. The amendments made by Act No. 184 / 1928 Coll., which, apart from the renaming of the "general meeting of delegates" to the "College of Delegates," resulted in adjustments to the number of members of the delegation, which should have been at least 40 and up to 80. In addition, the number of members of the Board of Directors and the Supervisory Committee was increased from 10 to 12, with the number of members elected by the Board of Delegates and employers newly being nine and three for the Board of Directors and three and nine for the Supervisory Committee. By Government Decree No. 112 / 1934 Coll., on the insurance of staff in the event of illness, disability and old age, some powers were newly entrusted to a joint meeting of the Board of Directors and the Supervisory Committee. The organisational structure of the sickness insurance companies was changed only during the period of the Protectorate of Bohemia and Moravia, by Government Decree No. 76 / 1941 Coll., on the internal organisation of sickness insurance companies subject to supervision by the Central Social Insurance Company, their association, the internal organisation of the Central Social Insurance Company and the appointment of the associated courts established under the Law on the Insurance of Employees in the event of illness, disability and old age, according to which the sickness insurance authorities constituted only the Board of Directors and the Chief Officer. The Board of Directors was no longer elected but appointed by the Land Office after hearing the Central Social Insurance Company. This structure has been maintained for the remaining period of the operation of the sickness insurance companies whose disappearance occurred by Act No. 99 / 1948 Coll., on National Insurance.
61. The aim of the Employee Insurance Act was not to restore the former scheme of sickness insurance companies in its entirety. It was a system that existed under different conditions, where, unlike now, not all citizens were involved in general health insurance. The Act on Occupational Insurance should only have allowed for the creation of occupational insurance companies in addition to the General Health Insurance of the Czech Republic, which would have taken better account of the specific needs of employees of certain sectors in their activities. According to Section 3 of this Act, in its original version, the Employee Insurance Corporation was established by the Ministry of Labour and Social Affairs at the request of a business entity or the competent Ministry. Paragraph 4 required the applicant to demonstrate, inter alia, that it employs (either itself or based on it, established or subject to an organisation) at least 20 000 employees and that most of these employees agree to the establishment of an employee insurance company. This agreement could be replaced by the agreement of the relevant trade unions if more than half of the employees were organised in the trade union. The conditions thus defined were applied in the first years of the Act, during which all existing employee insurance companies (six insurance companies in total) were created (namely between 1992 and 1993).
62. The status of occupational insurance companies has been different from sickness insurance companies since the beginning in many ways. The fundamental difference was that insurance in occupational insurance companies was not compulsory for any group of employees. The personal scope of insurance was governed by Section 7 of the Employee Insurance Act in its original version by the insurance of employees, pensioners (former employees) and members of their family of those employers who had participated in the establishment of the Insurance Company, as well as insured persons under a special law. These other insured persons understood essentially any person falling within the personal scope of public health insurance (they had permanent residence in the Czech Republic or were employees of an employer based in the Czech Republic). The right to choose a health insurance company was also guaranteed to insured persons by the laws governing general health insurance [Paragraph 10 (1) (a) of Act No. 550 / 1991 Coll., on General Health Insurance; later Article 11 (1) (a) of the Law currently in force on Public Health Insurance].
63. The structure of the insured persons of occupational insurance undertakings can therefore be (and is also) very different and significantly distant from the original idea that they will be primarily employees of the bodies on whose proposal the employee insurance company was set up and possibly employees of a particular sector. This fact is of relevance in terms of identifying the purpose of the existence of occupational insurance undertakings, as it actually makes them other "general" health insurance companies, which, while taking account of the special interests of their insured persons, will not be determined by the specificities of their employment but will reflect their current composition. The elements of this concept are part of the Employee Insurance Act for the entire duration of its effectiveness and have been deepened over time - as a result of individual amendments. An example can be given of the amendment made by Act No. 60 / 1995 Coll., which entrusted the decision on the authorisation of employee insurance companies to the Ministry of Health and at the same time changed the conditions for the creation of employee insurance companies (in terms of the application for authorisation pursuant to Section 4 of the Law on Occupational Insurance). The applicant had to recommit to the fact that the employee insurance company would reach at least 50 000 insured persons (now 100 000 insured persons) within one year of the creation of at least 50 000 insured persons (now 100 000 insured persons) without it being relevant who would actually make up these insured persons.
64. The contested provisions concern the way in which the Board of Directors and the Supervisory Board of Employees Insurance companies are formed, which are its bodies. Under Section 9 of the Law on Occupational Insurance, the powers of the two institutions are laid down in the Staff Insurance Act, which is approved by the Ministry of Health. By amending Act No 117 / 2006 Coll. the provision of Paragraph 9a was inserted into the Act on Occupational Insurance, which provides, inter alia, for the authorisation of the Board of Directors to appoint and revoke the Director of the Occupational Insurance Institution (paragraph 1), and was amended by Paragraph 10 (2) of the Law on Occupational Insurance, which today contains a demonstration list of its authorisations.
65. The Employee Insurance Act provides for the participation of employers and insured persons in the establishment of board and supervisory board throughout its effectiveness. The basic principles of this establishment remain unchanged, i.e. that employers, insured persons and the state are represented in these institutions. The representatives of the State are appointed (originally appointed and withdrawn by the Ministry of Labour and Social Affairs as the founder of employee insurance companies, later on, after the amendment made by Act No. 60 / 1995 Coll. has become effective, the Ministry of Health obtained this power, and after the amendment made by Act No. 117 / 2006 Coll. the government is elected. The voting arrangements were to be laid down by the relevant employee insurance company. Only the amendment implemented by Act No 117 / 2006 Coll. first of all specified the number of members of the two bodies and, secondly, that one third of their members (5 out of 15 members of the Board of Directors and 3 out of 9 members of the Board of Directors) were appointed by the Government and the other two thirds (10 out of 15 members of the Board of Directors and 6 out of 9 members of the Board of Directors) are elected by employers and insured persons of the insurance company, in the way that half of the members elected are elected from candidates submitted by representative employers' organisations and half of the candidates submitted by representative trade unions. The Ministry of Health was empowered to determine the method of choice and the electoral order by decree.
66. For comparison, it should be added that the parity of representatives of the state, insured persons and employers was applied in the past under the Act on the General Health Insurance Company of the Czech Republic also in the case of the creation of the bodies of the General Health Insurance Company of the Czech Republic, namely its Management Board, which consisted of 30 members all the time, and the Supervisory Board, which originally consisted of 9 members. State representatives were appointed and recalled by the Ministry of Finance, the Ministry of Labour and Social Affairs and the Ministry of Health and employers' representatives by employers' organisations. The representatives of the insured were not elected directly by the insured, but appointed and removed by the Chamber of Deputies. Similarly, representatives of insured persons on the administrative boards and supervisory boards of the county insurance companies of the General Health Insurance Company of the Czech Republic were not directly elected. By amending Act No. 438 / 2004 Coll., amending Act No. 551 / 1991 Coll., on the General Health Insurance Company of the Czech Republic, as amended, Act No. 280 / 1992 Coll., on departmental, branch, corporate and other health insurance companies, as amended, Act No. 592 / 1992 Coll., on Insurance against General Health Insurance, as amended, and Act No. 48 / 1997 Coll., on Public Health Insurance, and on the amendment and addition of certain related laws, as amended, Act No. 592 / 1992 Coll., on Insurance against General Health Insurance, as amended, and Act No. 48 / 1997 Coll., on Public Health Insurance, and on the amendment and the subsequent legislation, Act No. 592 / 1992 Coll., in addition to the said District Insurance Board of Insurance and Employers' s. Another amendment, which was carried out by Act No. 117 / 2006 Coll., changed this method of creation of the General Health Insurance Company of the Czech Republic. Since its entry into force, 10 members of the Management Board have been appointed by the Government on a proposal from the Minister for Health and 20 members elected by the Chamber of Deputies according to the principle of proportional representation of the political parties represented therein. The Supervisory Board is then composed of three members appointed by the Government on a proposal from the Minister for Finance, the Minister for Labour and Social Affairs and the Minister for Health and 10 members elected by the Chamber of Deputies, according to the principle of proportional representation of political parties represented in it. Unlike employees' insurance companies, the Act does not foresee that any part of the board or supervisory board of the General Health Insurance Company of the Czech Republic should be elected directly by insured persons.
The aspects of the constitutional review of the statutory regulation of elections to administrative boards and supervisory boards of employee insurance companies
67. The Constitutional Court had first to define the aspects of the constitutional review which are relevant to the assessment of the legal arrangements for the establishment of administrative boards and supervisory boards of occupational insurance companies. Health insurance companies, whether the General Health Insurance Company of the Czech Republic, or occupational insurance companies, participate in the exercise of State authority or in the more widely understood exercise of public authority [cf. 1. 12. 1998 sp. zn. I. ÚS 41 / 98 (N 147 / 12 SbNU 363)] by participating in one of its components, which is the exercise of public administration. Health insurance companies are holders of public health insurance for insured persons registered with them (Section 5 (2) of the Employee Insurance Act). Their activities, consisting of the "implementation 'of health insurance, serve to fulfil the fundamental right of citizens to free health care and to medical supplies under Article 31 of the Charter. Within this framework, the public funds which have been paid to the insured person, employer and state are redistributed each year and are currently around CZK 300 billion.
68. The characteristics of health insurance companies already mentioned allow the conclusion that their activity constitutes "governance 'in which, pursuant to Article 21 (1) of the Charter, all citizens can participate directly or freely by choosing their representatives. At the same time, the membership of their institutions constitutes a public office within the meaning of Article 21 (4) of the Charter, as it is associated with the possibility to participate in decisions or other acts constituting the exercise of public administration [cf. the finding of 19 December 2017 sp. zn.
69. The specific form of the organisational structure of occupational insurance undertakings is not based on the nature of the case, but is the result of the legislator's decision, which also applies to the establishment of their bodies. As a general rule, unless the Constitutional Law provides otherwise, it is for the legislator to determine whether it will establish a public office, whether it will be established by choice or appointment, and who will be given the right to choose or appoint. It is, in essence, a political decision which is limited only by fundamental constitutional principles, among which, for example, the requirements of a certain law or the prohibition of arbitrage, arising from the principle of a democratic rule of law pursuant to Article 1 (1) of the Constitution.
70. The problem of the contested legislation is the absence of more detailed rules of choice, which - with the exception of the limitation of the right to be elected to an employee insurance policy insured and the exclusive authorisation of the representative employers' organisations and representative trade unions to propose candidates for elections to the board of directors and supervisory boards of the employees' insurance companies - are entirely left to the implementing regulation by means of legal authorisation. It cannot be overlooked that the law essentially provides for the choice of a few members of these bodies, with the participation of up to hundreds of thousands of insured persons, as well as of all employers who, if employed, employ such insured persons. Such a choice, with its form, is close to national elections or, at least, to regional authorities' councils, which entails requirements relating to the organisation and funding of such elections. Contrary to the previous legal regulation of sickness insurance companies where the structure of both insured persons and employers has been defined either regionally or through a sector and where the insured persons have elected a representative body consisting of several dozen delegates, there are doubts as to the relevance of the choice thus provided for in the contested legal provisions. It is illusory to believe that 10 elected members of the board and 6 elected members of the supervisory board will effectively represent a wide and diverse range of insured persons and employers.
71. However, these facts do not in themselves render the establishment of the bodies of occupational insurance undertakings unconstitutional. The legislator could provide that a part of the members of these bodies would be set up by choice and that both insured and employers would have the right to vote, and it was up to him to consider the effectiveness of such choice. However, in a situation in which a closer regulation has been left to the Implementing Decree, it must be answered whether it has done so contrary to the rule of law and, if not, whether the law and the Decree set out the rules of choice are otherwise contrary to the constitutional order or the law. To that end, the Constitutional Court has undertaken to review the contested legal provisions in the light of Article 21 (1) to (3) of the Charter, in which it addressed the question of whether those provisions - taking into account the choice made to establish the bodies of occupational insurance undertakings - do not create a conflict with the right of citizens to participate in the administration of the free choice of their representatives, as well as whether they do not provide unequal access to the functions of the members of those institutions, which would result in a conflict with Article 21 (4) of the Charter.
Restrictions on the participation of insured persons in the election of members of the bodies of occupational insurance undertakings in respect of Article 21 (1) and (3) and Article 31 of the Charter
72. The appellant considers the creation of administrative boards and supervisory boards of employee insurance companies to be an unconstitutional method, which provides for the contested legal provisions. In its view, these provisions unduly restrict the possibility for individual insured persons to vote and to be elected by the members of those authorities. In this respect, it underlines the public nature of the occupational insurance companies which contribute to the exercise of the right to free health care and to public health benefits under Article 31 (2) of the Charter and concludes from it that, in the case of elections to their administrative boards and supervisory boards, the right of citizens to vote and to be elected, as guaranteed in Article 21 (1) of the Charter, must be respected. In her view, the contested legal provisions provide room for a decree - contrary to the rule of law under Article 21 (3) of the Second Charter - to restrict the right to vote for members of these institutions to a certain group of employers.
73. The Constitutional Court, in the context of the settlement of those objections, had to address the question of whether and to what extent the fundamental rights guaranteed in Article 21 of the Charter would apply to the elections to the board of directors and supervisory boards of employees. This Article in paragraph 1 guarantees citizens the right to participate in the administration of public affairs directly or by free choice of their representatives. In the event of the election of representatives of citizens, paragraph 2 states that elections must take place within the time limits not exceeding the regular electoral periods laid down by law and paragraph 3 states that voting rights are universal and equal and shall be held by secret ballot, while the conditions for the exercise of voting rights are laid down by law. According to paragraph 4, citizens have access to elected and other public functions on equal terms.
74. Basic right to participate in the administration of public affairs directly or by free choice of their representatives pursuant to Article 21 (1) The Charter is closely linked to one of the principles on which constitutional order is based, namely the principle of a democratic state under Articles 1 (1) and 9 (3) of the Constitution, as well as Article 2 (1) of the Charter. In a democratic state, the exercise of state power is not permitted, which would not be legitimate to the people, either directly or through their freely elected representatives. It is the people who are the source of all state power under Article 2 (1) of the Constitution. Thus, the free choice of citizens' representatives for a limited period of time in universal and equal elections, while respecting the principle of secret voting, is not just a means of implementing that fundamental right, but a means by which the democratic legitimacy of the exercise of state power is facilitated at specified intervals. The same purpose is fulfilled by the free choice of representatives of citizens in general, equal and direct elections and in the exercise of territorial authority (Article 102 (1) of the Constitution).
75. In the context referred to above, the "governance 'within the meaning of Article 21 (1) of the Charter must be understood in the broadest sense as taking part in the exercise of public authority. This is also the case with the definition of this concept in professional literature [in the past highlighted, for example, in the finding of 30.4.2002 sp. zn. Pl. ÚS 24 / 01 (N 54 / 26 CollNU 85; 235 / 2002 Coll.)], which interprets it as" participation in the political life of the state, administration of the state and administration of public affairs in municipalities and higher territorial units' (Pavlicek, V. in Pavlicek, V. a kol. Episode 2. Rights and freedoms. Issue 2. Praha: Linde, 2002, p. 211). The term "public matter 'refers to it as" public, or general interest, which is decided in the exercise of public administration or self-administration' (Šiměl, V., in Wagner, E., Šiměl, V., Langášek, T., Pospíšil, I. et al., Charter of Fundamental Rights and Freedoms. Comment. Praha: Wolters Kluwer ČR, a. s., 2012, p. 498).
76. Although a constitutional law may provide that the people exercise state power directly in certain cases, it is a rule that state power is exercised by the authorities of the legislative, executive and judicial powers (cf. Article 2 (1) and (2) of the Constitution). To this end, the Constitution and other constitutional laws or laws define the status and powers of those institutions, as well as whether their members are elected directly by the citizens (Parliament, the President of the Republic) or are authorised to perform their functions by decision of elected representatives of the citizens (government, courts) or by other bodies which themselves derive their legitimacy from the representatives of the citizens (e.g. Heads of Central Authorities appointed by the Government or on a proposal from the Government).
77. The election of citizens' representatives takes place, according to the Constitution, in elections to Parliament, or in individual chambers, and in the election of the President of the Republic. In these cases, the people directly legitimize the exercise of state power by choice. In relation to the local authorities, this legitimacy function is then carried out by elections to municipal and regional councils. No other elections that could be attributed to such a function, the Constitution or any other constitutional law are known and can therefore be exercised only in relation to them the right to participate in the administration of the free choice of representatives [this corresponds in the past to the interpretation made of the term "electoral law 'under Article 40 of the Constitution, according to which the term applies - with the exception set out below - to these elections exclusively, compared to the finding of 22.6.2005 sp. vol. Pl. ÚS 13 / 05 (N 127 / 37 SbNU 593; 283 / 2005 Coll.)]. The same should be applied to those elections - from the point of view of the constitutional guarantees of electoral law, including the procedural requirements for the adoption of the electoral law pursuant to Article 40 of the Constitution - the elections to the European Parliament which perform a comparable function, although not the body set up by the Constitutional Law, but by an international treaty pursuant to Article 10a of the Constitution [cf. the finding of 19 May 2015 sp. zl. ÚS 14 / 14 (N 98 / 77 SbNU 429; 176 / 2015 Coll.], in which the compliance of the legal regulation of elections to the European Parliament with Article 21 (3) was reviewed.
78. In other cases of the exercise of public authority, the democratic legitimacy of state or local authorities is assumed to be mediated. This does not preclude the law from allowing citizens to choose or appoint members of other bodies which have been established by law or by law to the extent that they are involved. However, this participation, if it takes the form of a right to vote, cannot give rise to the individual democratic legitimacy of these institutions. Any such participation by citizens must be seen only as a purely functional solution to contribute to or take into account the interest of a particular group of persons. Principles of the right to vote relating to the exercise of the right of free choice of representatives pursuant to Article 21 (1) The Charter shall apply only indirectly in the case of such "other 'elections, for example from the point of view of the prohibition of arbitrage resulting from Article 1 (1) of the Constitution, the prohibition of discrimination referred to in Article 3 (1) Charter or guarantee of equal conditions of right of access to elected and other public functions pursuant to Article 21 (4) of the Charter (in the latter case, a guarantee of the right of the person seeking the elected function and not of the person voting for it).
79. The activities of health insurance companies are undoubtedly "governance ', but this does not mean that elections to their institutions are" free choice of representatives of citizens' within the meaning of Article 21 (1) of the Charter. Such a concept is hindered not only by the above interpretation, which limits the application of this Article to choices which fulfil the function of democratic legitimacy of the exercise of State authority and of the territorial authority, but also by the lawful definition of health insurance companies, which would not allow them to recognise the nature (other) of (other) self-government even if they were to be allowed to apply this Article.
80. Article 31 of the Charter guarantees everyone the right to health protection. Only citizens will then be guaranteed the right to free health care and health care on the basis of public insurance under the conditions laid down by law. The latter fundamental right of citizens implies that the legislature must establish a public health insurance system and ensure, through it, a fair, that is to say, the creation of possible inequalities excluding access to health care and adequate quality medical supplies [e.g. Resolution of 5.5.1999 sp. zn. Pl. Pl. ÚS 23 / 98 (U 33 / 14 SbNU 319), the finding of 25.3.2014 sp. zn. Pl. ÚS 43 / 13 (N 39 / 72 SbNU 439; 77 / 2014 Sb.), paragraph 28, or the finding of 30.5.2017 sp. zn. Pl. ÚS 3 / 15 (231 / 2017 Sb.), paragraph 97]. However, the specific form of this system depends on the legislator's decision. It is a matter of law to establish its organisation, including whether it should be the only or more health insurance companies, the internal structure of health insurance companies, the way in which their organs are created and the control of their activities. This also applies to determining whether and to what extent individual insured persons or employers paying for health insurance or the State's own authorities are to be involved in the establishment of these bodies.
81. Health insurance companies, including occupational insurance companies, are public bodies showing - rather than the characteristics of a public institution - the characteristics of a public undertaking (cf. Hendrych, D. in Hendrych, D. and Col. Administrative law. General section. Praha: C. H. Beck, 2016, p. 70 et seq., or Sládeček, V. General Administrative Law. Praha: Wolters Kluwer, 2013, p. 258 et seq.), which performs the so-called residual other public administration (Sládeček, V. tam., p. 308 et seq.), consisting of various activities of public interest. The legal arrangements in force do not allow them to be regarded as self-governing public corporations (cf. Hendrych, D., there, p. 68 et seq., or Sládek, V., there, p. 256 et seq.). They lack their basic character, which is the application of the Member State principle, which allows (democratic) the creation of self-governing bodies. After all, even if the Constitutional Court admits the existence (quasi) of a member substrate, i.e. a set of insured persons (see Malast, J. To the concepts, nature and forms of non-territorial self-government - the self-administration of public insurance companies on the issue of this and other elements of self-administration on the example of the General Health Insurance Company of the Czech Republic. The lawyer, 2016, No 10, p. 863 et seq.), public health insurance companies do not have the right to create self-governing bodies through which they can exercise self-management. In accordance with the laws, only bodies that are more typical of private law corporations, i.e. board of directors and supervisory boards, may be protected. While certain activities of health insurance companies may be close to self-administration (in both cases self-administration is carried out), in the present case private management is involved, as these activities are not carried out by the authorities of a self-governing public corporation.
82. As much as a functioning public health insurance system is a prerequisite for the implementation of a basic right under Article 31 (2) of the Second Charter, this does not mean that the activities of the occupational insurance authorities need to be legitimised by an option which individual insured persons would take part in. The democratic legitimacy of the exercise of state power or the exercise of public administration, by employee insurance companies, depends not on the elections to their institutions, but rather (by default) on the elections to Parliament. It is not just that part of the members of these institutions are appointed by the government responsible to the Chamber of Deputies. This democratic legitimacy is already due to the fact that employee insurance companies have been established and exercise their powers under the law and that their activities are subject to control by the competent authorities, including the Government and the Chamber of Deputies (e.g. Sections 6 (3), 15 (9) and 11 of the Employees' Insurance Act).
83. The constitutional interpretation carried out by the Constitutional Court justifies the conclusion that the right of citizens to participate directly or freely in the administration of public affairs under Article 21 (1) of the Charter does not give rise to the right of insured persons to elect members of the board of directors and supervisory boards of occupational insurance undertakings and that the guarantees relating to the exercise of the right to vote under Article 21 (2) and (3) of the Charter are not directly applicable to those elections. For the same reason, the reservation of the law contained in Article 21 (3) of the Second Charter shall not apply to the rules of these elections. The choice of members of the board of directors and supervisory boards of occupational insurance undertakings, without direct or limited participation of insured persons, shall not, in itself, interfere with the fundamental right to free healthcare and public health care under the second Charter of Article 31. It cannot therefore be concluded that the contested legal provisions comply with Article 21 (1) to (3) of the Charter and Article 31 (2) of the Second Charter.
Conditions under which insured persons may be elected members of the board of directors and supervisory boards of occupational insurance undertakings, with regard to the requirements arising from Article 1 (1) of the Constitution and Article 21 (4) of the Charter
84. In the further part of the review, the Constitutional Court assessed the compliance of the contested legal provisions with Article 21 (4) of the Charter, which guarantees citizens equal access to elected and other public functions. This provision shall also apply to membership of the administrative and supervisory boards of occupational insurance undertakings, which is a public office.
85. The Charter does not guarantee the right to exercise a certain public office, but only the right to apply on equal terms. It is a matter of law to establish these conditions, if they do not directly provide for constitutional law. In this respect, the legislator has a wide margin of discretion, but it is not unfettered. Any condition which limits citizens' access to public office must be met in the light of the general requirements relating to the legislation resulting from Article 1 (1) of the Constitution. In particular, it must be set at sufficient certainty and must not be arbitrary. In accordance with Article 4 (4): The Charter must examine the substance and meaning of that fundamental law.
86. The contested legal provisions make it possible to apply for a member of the board of directors or the supervisory board of the employee insurance company, if not the members appointed by the government, in elections to those bodies, by allowing only the insured persons of that insurance company to become such members and by submitting proposals for candidates only to employers' organisations or trade unions. In the context of its review, the Constitutional Court had to examine whether those legal conditions (each of them separately) constituted an inadmissible inequality between the status of individual tenderers and whether they could not be regarded as having disproportionate interference with the right of access to public functions under Article 21 (4) of the Charter.
87. The existence of inequality itself does not yet constitute an inconsistency with Article 21 (4) of the Charter. The requirement of equal conditions must be interpreted in accordance with this provision in line with the established interpretation of the principle of equality in rights, according to which equality of categories is relative, not absolute (the finding of the Constitutional Court of the Czech and Slovak Federal Republic of 8 October 1992 sp. zn. Pl. ÚS 22 / 92, published under No. 11 in the Collection of Resolutions and Finances of the Constitutional Court of the Czech and Slovak Federal Republic). This concept was also followed by the Constitutional Court in a number of its decisions, which generally admitted a statutory inequality, but only if it can be justified on the basis of constitutionally accepted considerations. Such a case is not the case if the latter is based on or the result of a violation of any of the fundamental rights and freedoms [cf., for example, the finding of 4.6.1997 sp. zn. Pl. Pl. ÚS 33 / 96 (N 67 / 8 SbNU 163; 185 / 1997 Sb.), the finding of 25.6.2002 sp. zn. Pl. Pl. ÚS 36 / 01 (N 80 / 26 SbNU 317; 403 / 2002 Sb.), the finding of sp. ÚS 7 / 03 or the finding of 15.5.2012 sp. Pl. ÚS 17 / 11 (N 102 / 65 SbNU 367; 220 / 2012 Sb.)].
88. The assessment of whether the contested legal provisions do not constitute an unequal condition for a particular group of persons in breach of Article 21 (4) of the Charter provides for the answer to the questions whether they are comparable individuals or groups, 2. whether they are treated differently, 3. whether the different treatment to the individual or group concerned is liable and 4. whether such treatment is justified, i.e. whether it pursues a legitimate objective and is proportionate [cf. the finding of 28 January 2014 sp. zl. ÚS 49 / 10 (N 10 / 72 SbNU 111; 44 / 2014 Sb.)]. If the answers to the first three questions are positive, the proportionality test shall be applied for the examination of the inequality and its associated intervention in the fundamental right, provided that the intervention pursues a constitutional and contentious objective, the proportionality of the intervention in order to achieve that objective.
89. The proportionality test, the use of which is already a permanent part of the decision-making work of the Constitutional Court [for example, the finding of 12.10.1994 sp. zn. Pl. ÚS 4 / 94 (N 46 / 2 SbNU 57; 214 / 1994 Sb.), the finding of 20.6.2006 sp. zn. Pl. ÚS 38 / 04 (N 125 / 41 SbNU 551; 409 / 2006 Sb.) or the finding of 10.7.2014 sp. The Charter will apply not only in cases where it is an assessment of the requirement of equal conditions but also in the assessment of the adequacy of these conditions in terms of substance and meaning of the right of access to public functions [cf. sp. zn. It shall be evaluated: 1. whether the conditions for access to public office pursue a legitimate (constitutionally challenged) objective and 2. whether they are capable of achieving it. In the event of compliance with these requirements, it is necessary to further assess whether this objective could not be achieved in a way that would be more proportionate to this basic law and, if not, whether, in the overall assessment - taking into account the substance and meaning of the fundamental law in which it is affected - the interest in its limitation outweighs.
Limitation of the right to be elected only to insured employees
90. A wide margin of discretion by the legislator is already given where the conditions under which the fundamental right of access to public functions under Article 21 (4) of the Charter can be invoked are laid down by the fact that they can pursue any purpose which is not contrary to constitutional order. The reason for which the legislator provided for the choice of two-thirds of the members of the board of directors or supervisory board of occupational insurance companies, with the right to vote for employers and insured persons and the right to be elected only to insured persons, is closely linked to the very purpose of the existence of occupational insurance undertakings. Individual occupational insurance companies - apart from the General Health Insurance Company of the Czech Republic - are to ensure the availability of health care to their insured persons, taking into account their specific needs, depending on the current composition of the insured persons. The participation of employers and insured persons in the choice of the bodies of the occupational insurance company and the representation of the insured persons in them are intended to assist in this purpose, since it is for those persons who either pay health insurance premiums or their public health insurance claims that they will be able and interested to identify and respond appropriately to these needs. The remaining one-third of the members of these councils shall be appointed by the State which itself pays the premium for the group of so-called state insurers.
91. The restriction of the right to be elected to the board of directors and supervisory boards of occupational insurance companies on their insured persons is justified by their personal connection to the activities of occupational insurance companies. In order to assess whether this restriction does not constitute an unacceptable inequality, it is essential that, from the point of view of participation in the institutions of occupational insurance undertakings, insured persons of occupational insurance undertakings cannot be considered to be a comparable group to those of other health insurance undertakings which are not in any relationship with that occupational insurance undertaking. The condition under assessment no longer provides for any inequality between the insured persons of the occupational insurance undertaking, nor does it affect the substance and meaning of the right of access to public functions under Article 21 (4) of the Charter.
Restrictions on the right to be elected only by an employer or trade union organisation
92. However, otherwise, in the case of the second of the conditions under review, under which only the person proposed by the employer's organisation or trade union may be elected as a member of the board of directors or supervisory board of the employee insurance company. This condition is intended to ensure that candidates wishing to take part in an election demonstrate a minimum "qualification 'support for their candidacy. However, its problem is that it is only to support employers' or employees' organisations, although the right to vote is also for insured persons who are not employers or employees. This applies not only to a group of so-called state-owned insured persons, for whom the representation of the members appointed by the State which covers their health insurance, but also to those who are self-employed persons and who pay their own health insurance. Thus, a part of the insured persons cannot have their representation in the employment insurance institutions without being proposed by some employers' organisations or trade unions who naturally pursue a different interest in the selection of candidates.
93. The Constitutional Court notes that the condition of the choice of members of supervisory or administrative boards of occupational insurance undertakings by means of a proposal from an employer organisation or trade union organisation constitutes an inequality between two groups of insured persons, namely those who may or are members of such organisations, and those who are - because they are neither employers nor employees - cannot or do not want to be. In both cases, groups with a comparable status (the status of employee insurance policy holder and, in relation to the narrower part of non-employees, by paying the premium), but in the latter case, the absence of the possibility of proposing candidates to represent their interests has a bearing on them.
94. As regards the purpose of the intervention, the legislature expressed its preference with the contested provisions that the interests of insured persons who are employees should be represented in the supervisory and administrative boards of occupational insurance undertakings before other groups of non-employees. Apparently, it came from the originally intended "traditional" concept of employee insurance companies, which were intended to serve and take into account the needs, in particular, of employees of certain employers or employers, or of the whole sector.
95. However, the Constitutional Court could not overlook that the legal arrangements for occupational insurance companies, as summarised in detail above (see paragraphs 61 et seq.), differ in many ways from their model of the sickness insurance companies operating in Czechoslovakia during the interwar period (see paragraphs 57 et seq.). The basic difference is that insurance with one of the insurance companies no longer depends on the employment of the insured person. Instead, it depends solely on his choice. Any insured person, whether or not employed, is entitled to the choice of health insurance company [§ 11 (1) (a) of the Public Health Insurance Act]. In this situation, the composition of insured persons of occupational insurance undertakings may be very diverse, often significantly different from that of their formation when it was assumed that occupational insurance companies would serve primarily the insurance of the employees of the employers involved in the establishment of the occupational insurance company and their family members. Similarly, the composition of employers who pay insurance premiums for their employees may change. In addition, a substantial proportion of insured persons may be made up of persons who are not employed and who are entitled to health insurance by themselves.
96. It follows from the summary of the legal arrangements in force that the role of occupational insurance companies is not to carry out health insurance primarily for insured persons who are employees, but for all their insured persons according to their current composition, taking into account the interests of all of them in their activities. In fact, despite their designation, they are "general 'health insurance companies, which is another fundamental difference compared to former sickness insurance companies, which were intended only for a certain group of employees (cf. Agricultural, racing, social or federal health insurance companies).
97. In these circumstances, there is no factual reason for which a proportion of insured persons should be preferred to take up the function of members of the occupational insurance authorities only because they are designed by employers' or trade unions' organisations, which could be considered a legitimate objective in this respect. The prohibition of arbitrariness resulting from the principle of the rule of law under Article 1 (1) of the Constitution does not allow the legislator to impose an obligation (or a restriction of a fundamental right), the fulfilment of which does not have any objectively identifiable purpose which would have a constitutional effect on such an intervention [finding of 27.11.2012 sp. zn. ÚS 1 / 12 (N 195 / 67 SbNU 333; 437 / 2012 Coll.], paragraph 289]. Paragraph 10 (3) in the words "in the way that 5 members are elected from candidates submitted by representative employers' organisations and 5 members are elected from candidates submitted by representative trade unions', and Article 10 (5) (b) in the words" in the way that 3 members are elected from candidates submitted by representative employers' organisations and 3 members are elected from candidates submitted by representative trade unions' "Employee Insurance Act 'therefore do not comply with Article 1 (1) of the Constitution and Article 21 (4) of the Charter.
98. In conclusion, the Constitutional Court adds that it finds the condition under consideration also indefinite, as regards the specification of "employers' organisations' and" trade unions' which are entitled to propose candidates to employment insurance institutions, by the term "representative '. If this concept is to be of normal importance, it must be organisations whose characteristics allow them to be considered as representatives of all or at least certain groups of employers' organisations or trade unions, at least in certain aspects of their activities. However, it cannot be assumed that all employers' or trade unions' organisations would be comparable in terms of their objectives, structure or activities to be considered equally representative in these aspects. In fact, the rule will be that" representative 'nature can only be granted to some of these organisations. The criterion on the basis of which it would be possible to distinguish "representative employers' organisations" and "representative trade unions' from other employers' organisations or trade unions, but no longer defines the law and cannot be interpreted.
99. The application of the contested provisions in this context requires that the "representativeness' of trade unions or employers' organisations be assessed by the employee insurance undertaking itself when organising the elections of its members. This, however, opens up the scope for employee insurance to effectively influence the choice of its members. Some candidates for administrative or supervisory boards can be rejected precisely because the proposing employers' organisation or trade union organisation is not sufficiently" representative '.
100. The Constitutional Court has not overlooked the observations of the parties to the proceedings and of the associations of which it is submitted that, in practice, employment insurance companies have the possibility to propose candidates for members of their institutions and consider each of them "representative '. However, such an interpretation, although it is in favour of all employers' and trade unions' organisations, contradicts the legal dictation, as" representative 'organisations cannot be understood without further action. The law simply foresees a restriction on the group of proposing organisations. Therefore, the use of the word "representative' will not stand in the light of the requirement of a law which results from the principle of democratic rule of law pursuant to Article 1 (1) of the Constitution [for example, the finding of 5.4.2005 sp. zn. Pl. ÚS 44 / 03 (N 73 / 37 SbNU 33; 249 / 2005 Coll.) or the finding of 13.3.2007 sp. zn. Pl. ÚS 10 / 06 (N 47 / 44 SbNU 603; 163 / 2007 Coll.)].
Summary of the content of the contested order
101. The applicant also proposes the repeal of Decree No. 579 / 2006 Coll., which was issued for the implementation of § 10 (3) and (5) of the Employee Insurance Act. This decree sets out the method of choice and the electoral order for elections to the board of directors and supervisory boards of employee insurance companies. In its various provisions, the principle of secrecy and the impartiality of the elections of members of the board of directors and supervisory boards of occupational insurance undertakings (Paragraph 1), the announcement of those elections and the deadline for the submission of candidates (Clause 2), the management of elections and their organisation (Clause 3), the essentials of the candidate's proposal (Clause 6 and 7), the registration of the conduct and outcome of the elections (Clause 8), the classification of candidates for and the publication of candidates (Clause 9) and the effectiveness (Clause 10).
102. In order to assess the compliance of the contested decree with the law, its provisions of Paragraph 6, against which the appellant's objections are concentrated, are essential. This provision shall read as follows:
(1) An employer who has taken out an employee insurance undertaking during the period from the 18th day of the calendar month preceding the calendar month seven calendar months of the calendar month in which the election is to be launched, until the 17th day of the calendar month preceding the calendar month in which the election is to be held, may designate two electors for that period, at least 0,5% of the sum of the premiums, communicated by the competent occupational insurance undertaking to the special account administrator under another legislation1). For each additional 0,5% of the premiums paid, it is entitled to designate two other electors.
(2) In the case of a new employee insurance undertaking, an employer who has completed a new employee insurance undertaking during the period from the 18th day of the calendar month following the calendar month in which the new employee insurance undertaking was entered in the commercial register, until the 17th of the fifth calendar month following the calendar month in which the new employee insurance undertaking was entered in the commercial register, may designate two electors for that period, at least 0,5% of the sum of the amounts of the premiums communicated to the new employee insurance undertaking manager under another legislation. For each additional 0,5% of the premiums paid, it is entitled to designate two other electors.
(3) A vote is entitled to be taken by an electorate to prove to the members of the Election Commission that they are a valid civil document or a valid passport, an officially certified written mandate from the statutory body of the employer and an extract from the register or other evidence certifying that they are employers under the Public Health Insurance Act (2). The elector may not be a candidate for a member of the Management Board or Supervisory Board at the same time.
1) Paragraph 21 (1) of Act No. 592 / 1992 Coll., on Insurance against Public Health Insurance, as amended.
2) Article 2 (2) of Act No. 48 / 1997 Coll., on Public Health Insurance and amending and supplementing certain related laws, as amended. "
103. The indirectness of the choice of members of the board of directors and supervisory boards of the employees' insurance undertakings is already laid down in Section 1 of the contested decree, and that is the provision of Section 6 which regulates the details of the choice. This provision defines the power to propose electorates which are limited to employers who have paid an insurance premium of at least 0,5% of the sum of the premiums during the specified period. The policyholders themselves have no possibility of delegating voters at all. There are other provisions for the existence of voters. The last sentence of Paragraph 2 (1) of the contested order sets out the time limit within which the employers referred to in Article 6 are to communicate the names of the electorate responsible for voting for the members of the Board of Directors and the Supervisory Board. The detailed arrangements for exercising the right to vote to the electorate are then contained in the provisions of Section 7 and the provisions of Section 8 on the registration of the course and outcome of the election also respond to it.
Assessment of compliance of the contested decree with § 10 (3) and (5) of the Employee Insurance Act
104. As in the part of the finding which was addressed by the review of the contested legal provisions, the Constitutional Court acted in accordance with Section 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., in the case of the contested decree. In turn, he had to address questions, 1. Whether there was a legal mandate for the issue of the contested decree, 2. Whether it was issued in a constitutionally prescribed manner, 3. Whether it did not provide for legal relations whose regulation could not be placed under the legal authority on the basis of which it was issued, 4. Whether it did not provide for legal relations whose regulation at the level of the statutory law would be contrary to the constitutional law, and 5.
105. Pursuant to Article 79 (3) of the Constitution, ministries, other administrative authorities and local authorities may, by law and within the limits of the law, legislate if they are empowered by law to do so. The powers of the Ministry of Health to issue a decree laying down the method of choice and the voting rules for the election to the administrative boards and supervisory boards of occupational insurance companies are derived from Sections 10 (3) and 5 (b) of the Employee Insurance Act. The law does not provide for any special procedure on the basis of which the decree should be issued. In order to conclude that the contested decree was adopted and issued in a constitutional manner, it is sufficient to state that it was signed by the then Minister of Health and properly published in the Collection of Laws. The same conclusion can be reached on its only amendment, which took place by Decree No 87 / 2008 Coll.
106. In addition, the Constitutional Court considered whether the contested order did not provide for legal relations, the regulation of which cannot be subordinated to that legal authorisation. Such an assessment assumes that the legal authorisation will be defined specifically and unambiguously [the finding of 21.6.2000 sp. zn. In the present case, the law foresees that the decree will regulate the "method of choice 'and the" electoral order'. "Method of choice 'means the specific way in which the election determines which of the insured persons will be a member of the board of directors or supervisory board of the employee insurance company. For example, it may be a determination that these members will be elected directly by all insured persons and employers, or indirectly, through their delegated constituents. By default, the" electoral order "represents a set of rules that detail the organisation and conduct of the elections from their publication to their results.
107. Paragraph 10 (3) and (5) (b) of the Employee Insurance Act provides that 10 of the 15 members of the Board of Directors and 6 of the 9 members of the Supervisory Board of Employees are elected by employers and insured persons of the Employee Insurance Company. However, it does not specify whether each of the elected members of the management board and supervisory board should be elected by all eligible persons or whether a part should be elected only by the employer and a part should be elected only by insured persons. The law leaves the choice of a specific solution to the Decree in the context of determining the "method of choice."
108. However, any method of choice must not restrict the right to vote only on certain employers or insured persons in these elections, or even exclude that right entirely on the part of insured persons. In a situation where Articles 10 (3) and 5 (b) of the Employee Insurance Act expressly provide that the right to vote in the institutions of occupational insurance companies belongs to both employers and insured persons, the legal authorisation to determine the "method of choice 'and the" electoral order' cannot be interpreted in such a way that it also includes the possibility of limiting the range of persons with the right to vote. The limitation of the right to vote provided for in Articles 6 (1) and 6 (2) of the contested decree and according to which that right belongs only to employers who have paid an premium of at least 0,5% of the sum of the amounts of the premiums, in the form of the determination of a certain number of electors, the statutory sense of elections to the institutions of the occupational insurance companies is changed. It makes it possible for two thirds of the members of those institutions to be elected by a majority of delegates representing "large 'employers and thus to have a dominant influence on the activities of occupational insurance companies. Consequently, those provisions of the contested order in breach of Article 79 (3) The Constitution goes beyond the limits of the legal authorisation for its issue under Articles 10 (3) and 10 (5) (b) of the Employee Insurance Act and at the same time does not comply with the content of these legal provisions, which explicitly foresee the participation of both employers and insured persons in this choice.
109. The conclusion of the infringement of Article 79 (3) of the Constitution and Article 10 (3) and Article 10 (5) (b) of the Law on Occupational Insurance does not concern only Article 6 (1) and (2) of the contested decree, but also the related provisions which provide for election through the electorate. Although that legal authorisation does not exclude indirect choice in the board of directors and supervisory boards of employee insurance undertakings, the designation or choice of electorate must, however, respect the right of employers and insured persons to vote, which is not the result of the contested decree. That contradiction therefore also applies to the other provisions of the Decree, in particular the last sentence of Section 1, Section 2 (1), Sections 7 and 8 of the contested Decree. In view of the consistency of all these provisions with the rest of the contested order, which cannot stand alone, the whole of the contested order with Article 79 (3) of the Constitution and Articles 10 (3) and 10 (5) (b) of the Employee Insurance Act remain to be noted.
110. For the sake of completeness, it should be added that, even in the case of the contested decree, the conclusion on the non-compliance of the condition under which only a person who is proposed as a member by a representative employer organisation or a representative trade union organisation may be elected as a member may be chosen by a member of the board of directors or supervisory boards of an occupational insurance company, with the requirements of a certain law and a prohibition of arbitrage pursuant to Article 1 (1) of the Constitution and the right of access to elected and other public functions on equal terms and conditions under Article 21 (4) of the Charter. The second sentence of Article 2 (1), Article 5 (2), second sentence of the words "specifically for candidates proposed by representative employers' organisations and especially for candidates proposed by representative trade unions', Article 7 (1), second sentence of the words' and whether they are candidates proposed by representative employers' organisations or candidates proposed by representative trade unions' and Article 9, first sentence of the words" from candidates proposed by representative employers' organisations or from candidates proposed by representative trade unions' of the contested regulations.
Conclusion
111. For all these reasons, the Constitutional Court has held that Paragraph 10 (3) in the words "in the manner that 5 members are elected from candidates submitted by representative employers' organisations and 5 members are elected from candidates submitted by representative trade unions' and Article 10 (5) (b) in the words" in the manner that 3 members are elected from candidates submitted by representative employers' organisations and 3 members are elected from candidates submitted by representative trade unions' and Article 1 (5) (b) of the Staff Insurance Act are contrary to Article 1 (1) of the Constitution and Article 21 (4) of the Charter and under Article 70 (1) of the Act 182 / 1993 Coll., on the Constitutional Court, as amended by Law No 48 / 2002 Coll., is hereby annulled by the end of 30 September 2019 (operative part I). In the rest, he rejected the application for annulment of Sections 10 (3) and (5) of the Employment Insurance Act under Section 70 (2) of the Constitutional Court Act (operative part III).
112. In addition, the Constitutional Court found that the contested Decree as a whole contradicted Article 79 (3) of the Constitution and Article 10 (3) and (5) (b) of the Employment Insurance Act, as well as certain provisions of the contested Decree, namely the provisions of the second sentence of Paragraph 2 (1), the second sentence of Article 5 (2), the second sentence of Article 5 (2), in the words "specifically for candidates proposed by representative employers' organisations and Article 9, the first sentence of Article 21 (4) of the Charter '," from candidates proposed by representative employers' or from candidates proposed by representative trade unions', with Article 1 (1) of the Constitution and Article 21 (4) of the Charter. According to Article 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Decree was also annulled by the expiry of 30 September 2019 (operative part II).
113. The postponement of the enforceability of the finding is justified in this part by the need to ensure, in the meantime - until the entry into force of the new Decree - the possibility of choosing members of the board of directors and supervisory boards of the employees' insurance undertakings, and thus the functioning of these bodies, without which the activity of the employees' insurance undertakings could be compromised. At the same time, the Constitutional Court took into account the fact that the partial repeal of the contested legislation will abolish some of the existing conditions of the right to vote and be elected to those institutions. A part of the board members and a part of the supervisory board of occupational insurance companies will thus have to be elected by all insured persons and employers, which means a fundamental change compared to the way they are chosen. In the light of doubts as to the functionality of such a solution, which would involve the participation of hundreds of thousands of insured persons, as well as its financial and organisational complexity, which would be burdened by employee insurance companies (see paragraph 70), it is appropriate to give the legislator sufficient time (in this case one year) to consider the appropriateness of adopting a new legal regulation on the arrangements for setting up board and supervisory boards of occupational insurance undertakings. In the meantime, it is necessary to keep the repealed legislation in force by the Constitutional Court as a whole.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | The Constitutional Court found no. 233 / 2018 Coll., on the application for annulment of § 10 paragraphs 3 and 5 of Act No. 280 / 1992 Coll., on departmental, branch, corporate and other health insurance companies, as amended, and Decree No. 579 / 2006 Coll., laying down the method of choice and the electoral order for elections to the administrative and supervisory boards of the departmental, corporate and other health insurance companies, as amended, as amended, and Decree No. 87 / 2008 Coll. |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 18.10.2018 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0