The Constitutional Court found No. 238 / 2013 Coll.

I. Paragraph 11 (1) (f), § 12 (n), § 13 (3) to (7), § 17 (4) in the words "and with the designation of the health care variants according to § 13" of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended, and § 12 (1) (n) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended by Act No. 458 / 2011 Coll., is hereby deleted from the date of the declaration of incorporation in the Collection of Acts.

II. On the day of the publication of this finding in the Collection of Laws, part of the Annex to the Decree of the Ministry of Health No. 134 / 1998 Coll., which publishes a list of health performance with points values, as amended, those parts of the Annex, where the symbol "E" is marked as being an economically more demanding option of health care under Section 13 (5) of Act No. 48 / 1997 Coll., on public health insurance and on the amendment and addition of certain related laws, as amended.

III. Paragraph 16a (1) (f) of Act No. 48 / 1997 Coll., on Public Health Insurance and amending and supplementing certain related laws, as amended, shall be repealed with effect from 31 December 2013.

IV. Paragraph 13 (8) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, as amended, shall be deleted from the date of the declaration of the finding in the Collection of Laws and the provisions of Sections 16a (9) to (11), in so far as they relate to the charge for bed care under the provisions of § 16a (1) (f) of Act No. 48 / 1997 Coll., on public health insurance and on the amendment and amendments to certain related laws, as amended by the Act No. 458 / 2011 Coll., are repealed by 31 December 2013, and paragraphs 44 (5) and (6) in the words "deposited under paragraphs 1 to (2) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and amendments to certain related laws, as amended by Act No. 458 / 2011 Coll.

1. On 14 December 2011, the Constitutional Court received a proposal from a group of 51 Members of Parliament of the Czech Republic to cancel the heading marked (parts) of the provisions of Act No. 48 / 1997 Coll., on Public Health Insurance and on amending and supplementing certain related laws, as amended by Act No. 270 / 2008 Coll., Act No. 59 / 2009 Coll., Act No. 298 / 2011 Coll. and Act No. 369 / 2011 Coll., for their contradiction with the constitutional order and with the obligations of the Czech Republic arising from international human rights treaties. To the challenge of the court, the appellants further modified the petition by taking into account the amendment to Act No. 48 / 1997 Coll., on Public Health Insurance, and amending and supplementing certain related laws, as amended, (hereinafter referred to as the "Public Health Insurance Act ') by Act No. 458 / 2011 Coll., on the amendment of the laws relating to the establishment of one collection post and other changes to tax and insurance laws that will become effective from 1 January 2015. Affected legislation

- divides health care or health services, in terms of public health insurance remuneration into a basic, fully paid option, and a more economically demanding option, which is not covered in addition to the remuneration provided for basic public health care,

- increases the daily regulatory fee for providing bed care from 60 CZK to 100 CZK,

- authorises health insurance companies to penalise health service providers for breach of certain obligations imposed on them by the Public Health Insurance Act.

2. According to the appellants, the legislation adopted in breach of Article 6 (1) of the Charter of Fundamental Rights and Freedoms (hereinafter referred to as "the Charter ') guaranteeing the right to life, Article 31 of the Charter guaranteeing everyone the right to health and public health under the conditions laid down by the law, is the right to free health care and to medical supplies, Article 4 (4) of the Charter imposing on all persons to exercise the provisions on the limits of fundamental rights and freedoms of their substance and meaning, Article 1 of the Charter declaring equality in dignity and rights, Article 3 (1) of the Charter guaranteeing fundamental rights and freedoms to all persons without distinction of property or other status, and Article 11 (1 of the Charter under which the property of all owners has the same legal content and protection. At the same time, the contested regulation contradicts the obligations under Article 12 (1) and (2) (c) and (d) of the International Covenant on Economic, Social and Cultural Rights, Articles 11 (1) and (3) and 13 of the European Social Charter, Article 3 of the Convention on Human Rights and Biomedicine, Article 24 (1) and (2) (b) of the Convention on the Rights of the Child and Article 25 (a), (b), (d) and (f) of the Convention on the Rights of Persons with Disabilities.

a) Distribution of health services into basic and more economically demanding services

3. The terminology itself, when the term "health care" was replaced by the term "health service" in the Public Health Insurance Act, according to the applicants, describes the overall intention of the legislator to direct the concept of client medicine, provided according to the criterion of economic possibilities "client." The law allows health care to be distributed according to its economic needs for the system, not its effectiveness from a medical point of view. The wordings used are very vague, but they do not have the definition of a single distinction between the two options, which is "efficient and economical use of public health insurance resources." Neither are the criteria for determining the cost of healthcare in distinguishing its basic and more economically demanding option. It is not so clear whether the criterion is the price of medicinal products, the price of medical supplies, medical devices, the price of medical supplies, the quality of care in medical facilities (diet, equipment of premises, additional services), the level of remuneration of health workers, personnel and technical equipment, or the current level of remuneration of individual medical performance under the contract for the provision and reimbursement of the services paid under the Public Health Insurance Act. The condition of the distinction between the two options, i.e. the possibility of providing a health service in more than one way, does not indicate anything about the legal standard of healthcare. In this context, the appellants point to the finding of sp. zn. This constitutional bail-out was repeated by the Constitutional Court in the sp. zn. Here, the Constitutional Court also stated that "from constitutional and legal principles, this care cannot be divided into a basic," cheaper, "but less suitable and less effective, and above-standard," more expensive, "but more appropriate and more effective. The difference between standard and superior care should not consist of differences in the suitability and efficacy of the treatment. The law does not regulate the health care that a doctor or health care facility can provide, but which it must provide, in the general interest, so that all insured persons are equally entitled to treatments and treatments that meet objectively identified needs and requirements of appropriate level and medical ethics. The development orientation of health care, based on laws, is therefore not based on the transfer, better 'health care activities from free care to the area of insured persons paid directly, but rather in the direction of improving the activities provided free of charge from public health insurance'. The contested regulation is considered discriminatory by the appellants, since access to the more economically demanding option will depend on the willingness or ability to pay the cost of health care, not on the need to draw it. This creates a real double health care system - for those who have only the basic option and for those who can afford the more economically demanding option. The applicants believe that health service providers will prefer insured persons who choose an economically more demanding option because they will be economically involved. On the contrary, insured persons who choose the basic option will be identified by the health record as those who bring nothing more and will therefore be affected, for example, by a long waiting period for the use of the health service. Meanwhile, insurance companies will be very difficult to control the legal ban on such conduct. The introduction of two health care options according to the criterion of whether an insured person has the means to pay for his care is a denial of the principle of equality between people in dignity and rights. The appellants recall that the unconstitutional nature of the amendments adopted and the consequences of their application was highlighted by individual legislators in their speeches in plenary debates in the Chamber of Deputies and the Senate, citing the representative contributions in the proposal.

4. According to the Charter, the limits of fundamental rights and freedoms can only be laid down by law and health protection rights can only be invoked within the limits of implementing laws. The Act on Public Health Insurance provides that the level of compensation for health services in the basic variant, as well as the definition of health services which are more economically demanding, is laid down in an implementing regulation, namely the Decree of the Ministry of Health. It also sets out a list of health performance with point values indicating health care variants. Even in this case, some legislators have already pointed out a breach of the constitutional principle, according to which the conditions for providing health care and the conditions for entitlement to free health care can only be defined by law. By 31.3.1997, similar arrangements contained Act No. 20 / 1966 Coll., on the care of the health of the people, as amended, according to which health care for full or partial remuneration, or its amount, should have been defined by the Ministry of Health in agreement with the Ministry of Finance by decree. The related provisions of Act No. 550 / 1991 Coll., on General Health Insurance, as amended, entrusted the provision of care headings fully paid and partly paid to the Health Code, which was authorised by the Government to issue its regulations. This legislation was annulled by the Constitutional Court by its finding sp. zn. The contested regulation now shows, according to the appellants, the very same features of the unconstitutional restriction of fundamental rights with the one which the Constitutional Court annulled by that finding.

(b) Increase in the regulatory fee

5. The applicants submit that they consider all the regulatory fees imposed by Act No 261 / 2007 Coll., on the stabilisation of public budgets to be unconstitutional, and in this respect they agree with the argument contained in the different opinions of the seven judges of the Constitutional Court submitted for the finding of the sp. zn. They note, however, that they do not have the need to re-assess the same, i.e. the whole regulatory fee complex, but completely new legal regulations increasing the regulatory fee for each day providing bed care from 60 CZK to 100 CZK. The reasons for the 2 / 3 increase, i.e. to a significant extent, were justified only in a proclamative manner, without proof of the necessity and rationality of such a measure, after all the reservations raised by the Ministry of Finance in the comment procedure. Since the introduction of the levy in 2008, there has been no such significant increase in costs either in the sleeper and health sector as a whole. The increase does not correspond to inflation rates or nominal and real wage growth. The amount of the increase is not negligible, especially for some social groups will be a barrier to access to healthcare, especially if no protective limits are set. The increase has a significant negative impact on disabled people. In the appellants' view, the increase in the fee has, in particular, in relation to groups of insured persons such as children, seniors, people with disabilities and persons with social disabilities, a "choking effect."

(c) Authorisation of health insurance companies to penalise health service providers

6. Insurance undertakings are granted the right in question, although they are not public authorities and are not in principle against health service providers, either in a superior capacity or in the capacity of the authority authorised to exercise public authority over them. Relations between health insurance companies and health service providers are based on private law and the principle of private autonomy applies. Moreover, this approach was criticised by the legislature by some of the judges of the Constitutional Court in their different opinions on the above-mentioned finding, Pl. ÚS 1 / 08. Health insurance companies have a very wide margin of discretion when imposing fines, both up to and including its re-imposition. The maximum amount of fines is significant and may be jeopardised by the economic existence of the health service provider itself. The applicants express concern that the health insurance undertaking may, through this sanction authorisation, directly or indirectly operate on health service providers in relation to the conclusion, performance or termination of the contract for the provision and payment of the services paid, in particular if they are or have been in dispute. In cases where the imposition of a fine gives rise to the termination of the contract for the provision and reimbursement of the services paid without notice (Section 17 (2) of the Public Health Insurance Act), the health insurance company may act as a genuine "judge in its own case '. On the other hand, the health service provider has no similar public-law sanction against the health insurance company.

7. The Constitutional Court sent the application for the initiation of proceedings in accordance with the provisions of Section 69 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, (hereinafter referred to as the Law on the Constitutional Court) to the parties - Chamber of Deputies and Senate of the Parliament of the Czech Republic.

8. The Chamber of Deputies responded briefly. It recaptured the course of the legislative process, stating that it considers the laws amending the Public Health Insurance Act to be properly adopted and declared. The assessment of the contested provisions leaves it entirely up to the Constitutional Court to consider.

9. The Senate also did not clearly express its support for neither the submitted proposal nor the contested legislation. He stated that the issue had already been given great attention in the Senate bodies, where, as in the plenary, the reservations of the senators evaluated the proposal as unconstitutional, as opposed to the minority opinion, were prevalent. This has also been reflected in the vote. The statement subsequently describes the discussion of the amendment in relation to the individual provisions proposed now for annulment. On the whole, the Senate also leaves complete consideration to the Constitutional Court as the various parts are assessed and definitively decided.

10. The possibility of the Government and the Ombudsman entering the proceedings as an intervener, enshrined with effect from 1 January 2013 in Sections 69 (2) and (3) of the Law on the Constitutional Court, as amended by Act No 404 / 2012 Coll., applies only to proceedings initiated after 1 January 2013 (see Notice of the Constitutional Court No 469 / 2012 Coll. on the effects of Act No 404 / 2012 Coll., amending Act No 99 / 1963 Coll., Civil Code, as amended, and some other laws, on the pending proceedings before the Constitutional Court, started before 1 January 2013).

11. The Constitutional Court considered it desirable to have a more comprehensive view of the issues outlined, so it reached out to other bodies representing individual interest groups in which it expected a conflicting approach to the reform in question. In order to maintain the balance of opinion, it gave the opportunity to comment on the proposal in particular to the Ministry of Health as a processor of the health reform, the Association of Health Insurance Companies of the Czech Republic, the General Health Insurance Company, the Czech Medical Chamber and the Association of Patients of the Czech Republic.

12. The Ministry of Health submitted a detailed opinion on the proposal structured according to the headings defined in the proposal. The basic and economically more demanding treatment in terms of constitutional conformity, according to the Ministry of Health's opinion, illustrates the following: (a) the guarantee of certain, comprehensive health care covered by health insurance, defined by qualitative characteristics; (b) health care must be effective; (c) both forms of care must be effective; (d) the insured person has the right to offer a basic fully paid option and information on the more economically demanding option, including the difference in price; (e) in the case of the choice of more economically demanding options, the insured person pays only the difference from the basic variant; (f) the price list of more economically demanding options is publicly available; (g) it is prohibited to prefer patients choosing a more economically demanding variant; (h) the economically more difficult option is the one identified in the implementing regulation; (i) free care does not become paid, the amount of fully paid care remains. In principle, the Ministry of Health does not agree that the definition of basic and more economically demanding care is lacking. Paragraph 13 (1) of the Public Health Insurance Act provides for the insured to be entitled to health care covered by public health insurance, which is defined here by general characteristics (the aim is to improve or maintain health or alleviate suffering, must correspond to the health status of the insured person and the purpose to be achieved is consistent with the current available knowledge of medical science and there is evidence of its effectiveness). The highest possible standard of health care corresponding to the patient's health condition and needs in terms of the same therapeutic effect is always ensured for both variants, i.e. also for the basic variant. It is only if health care can be provided which meets the criteria of Section 13 (1) of the Public Health Insurance Act in several ways which have the same therapeutic effect, that the criterion of reimbursement of possible options is the effective and economical use of public health insurance funds. When comparing the costs of individual options, everything related to the provision of such care must be included (performance itself, length of hospitalisation, medicines, medical devices, etc.). No healthcare that can be provided only in one way can be described as a more economically demanding option. The procedure of the health service operator will always be such that the doctor will assess the patient's health status and the relevant purpose of providing the health services, setting out the optimal choice of care, which will become an essential option in the case at hand, and then examine whether there are more economically demanding options for the relevant treatment procedure with an identical therapeutic effect. The determination of the conditions under which the care option can be identified is not left to the opinion of the Minister, the regulation merely implements the relevant provisions of the law to make the application of the general legal limits as simple and user-friendly as possible. The power is a reflection of the legislator's attempt to optimally set up the system so that it does not run out, but at the same time allow the law guaranteed by the Charter to be implemented. It works with terms of purpose and cost-effectiveness of paid care, where the purpose is a medical aspect reflecting the patient's interest and economy reflects a limited amount of public health insurance. The described method and new legal limits have already been applied by the Ministry of Health in Decree No. 411 / 2011 Coll., amending Decree No. 134 / 1998 Coll., which publishes a list of health performance with point values, as amended; The more economically demanding option of health care is only one that no longer brings medical improvement to the patient, but brings him increased comfort or fulfills his subjective preferences (some vaccinations, fixation plaster, etc.). The Ministry of Health also disagrees with the way the legislation is compared now challenged by the Constitutional Court by the finding of sp. zn. Pl. ÚS 35 / 95 (No 206 / 1996 Coll.), or the claim that they have the same characteristics. The definition of both options, both in terms of the elements of the common (same therapeutic effect) and in terms of differences (compliance with the efficient and economical use of public health insurance resources), is now laid down directly by law. In the previous case, it was merely a statutory rule - the health rules envisaged. As regards the increase in the regulatory fee, it certainly does not create a barrier to access health care. It is not provided as a condition for providing paid health care, which must be provided to the health service provider regardless of whether or not the fee has been paid. By analyzing the statistics, the Ministry of Health found that the system of regulatory fees, as set up since 1 January 2008, did not in any way limit the availability of health care, even for the poorest citizens. It met the intended purpose of the regulatory effect on health care consumption. The level of the increase is based on the economic calculations of the daily consumption costs of 10% of households with the lowest income in the Czech Republic converted per capita (not including spending on housing, but on food and beverages, tobacco, water and bilge, electricity, gas and fuel, outpatient health care, fuel and oil, cultural services, recreational and sports services, gambling and lottery, restaurants and cafés and canteens), which amounted to CZK 99.74 in 2010. Therefore, the proposed measure cannot have a declared choking effect. Finally, the Ministry of Health does not agree with the promoters that it would contradict the constitutional order of the authorisation of health insurance companies to fine health care providers. It refers to other cases where the law entrusts the exercise of public administration to a person governed by private law, and, moreover, in the case of the State and public bodies, it is common for them to act as private bodies in addition to public law. The Constitutional Court [The Ministry of Health refers repeatedly to the decision of page II of the ÚS 75 / 93 of 25.11.1993 (U 3 / 2 of the SbNU 201) and page I. ÚS 41 / 98 of 1.12.1998 (N 147 / 12 of the SbNU 363)]. In the case under consideration, the administration is specifically delegated by law, the cases, conditions and penalties are specified, the procedure of health insurance companies is subject to the administrative rules and their decision is subject to review by the court. According to the Ministry of Health, the regulation is similar to cases where the State, through administrative authorities, imposes penalties for infringement of the law on persons with whom it concludes or can conclude contracts with a variety of transactions. The legislation so far allows insurance companies to penalise insured persons and employers, which the appellants, oddly enough, do not object to. The legislative solution is not only justified but also appropriate, as insurance companies have the necessary data from health service providers and insured persons. It is mostly personal data whose further transfers threaten to protect them. It is also possible to point out the practice in which the fine was imposed in just 93 cases and selected only 41 cases in total amount of CZK 587 500.

13. The Association of Health Insurance Companies of the Czech Republic also rejects the arguments of the applicants through its President. The distribution of healthcare cannot be discriminatory due to the same therapeutic effect. The association of health insurance companies, after sharing care into standard and above-standard long-term calls, welcomes the introduction of a legal option to pay for health care. On the contrary, the legislation has made available even more economically demanding health care options for those who could not afford to pay for the entire medical device or service, as today they will only pay for the difference. The increase in the regulatory fee should be seen in the overall context of the adjustment when, on the other hand, the fee for the item on the recipe has been cancelled. As a result, the load decreased for the wider group of patients. In addition, there is the possibility of not paying the regulatory fee at all when it comes to an insured person receiving a benefit in a material emergency. As regards the authorisation of insurance undertakings to penalise health establishments, two different, independent relationships that may arise between the insurance undertaking and the health establishment must be distinguished according to the Union of health insurance undertakings; on the one hand, a purely commercial legal relationship and on the other, a public relations relationship whereby the insurance undertaking acts as a public authority executor. The Constitutional Court itself, in its finding, sp. zn.

14. The general health insurance company also disagrees with the applicants. The introduction of superstandard is a modern way of achieving public interest and a step forward. The contested scheme cannot be considered discriminatory or hindering access to care. The care covered must correspond to the patient 's medical condition and the purpose to be achieved. This means that if a particular insured person is a more economically demanding option, the alternative will be essential. Variety differences do not consist in the suitability and effectiveness of treatment, the law clearly requires the same therapeutic effect. The General Health Insurance Agency draws attention to the fact that the participation in medicinal products is determined by the State Institute for Drug Control by a simple decision, and the system of variations of payment for glasses has long been used. The conditions are clearly laid down by law (only the cheapest is paid from the same effective treatment procedures), the list of health performance does not decide on anything, it merely indicates those performances that the law has included for their price only covered by the cheapest alternative. As far as the charge for bed care is concerned, it has proved itself to regulate the use of care. In doing so, the increase was necessary to have a truly devastating effect. It can certainly be a burden for some groups of insured persons, but the State has social security instruments to deal with these situations. It cannot be overlooked that the limit on (other) regulatory fees has been reduced in children and elderly, thus reducing the overall burden. Finally, the possibility of imposing public law sanctions is the best way to impose obligations on health service providers. Health insurance companies are public institutions, the minimisation of abuse of authority by them is guaranteed by imposing fines in administrative proceedings, followed by the possibility of judicial review.

15. The Czech Medical Chamber of Care distinguishes between two aspects. First, it is the distribution of the health performance of the same therapeutic effect on the performance carried out in the basic variant and variant more economically demanding with a supplement of the insured person, which he does not consider to be unconstitutional in itself. In the current legislation resulting from Section 13 of the Public Health Insurance Act, the insured person is guaranteed that all the health insurance services necessary to protect his or her health are covered, but the way in which they can be implemented, if they can be different in some cases, can choose and pay more voluntarily. In a situation where Czech health care is repeatedly faced with serious economic problems and where even in neighbouring democratic countries there is an opportunity for citizens to make a regular contribution, with general health insurance covering only the most necessary care, the possibility of paying for a certain superstandard is desirable and the health service providers themselves called for it. In addition, it is newly calculated only with the difference between a more comfortable and less comfortable performance of the health care or medical device, which according to the Czech Medical Chamber is positive for insured persons, since they have so far had to pay for such performances or aids entirely themselves. As regards the second aspect, the method of selecting the individual actions for which care and aid options can be offered is left to the purely administrative official procedure - the Ministerial Decree (the current practice is that the Ministry of Health decides in a decree setting out a list of health performance with points that can be offered in addition to the basic and more economically demanding option). The Czech Medical Chamber has only a terminological reservation for the charge for the provision of bed care, as it is in fact a payment for hotel services. It is more or less a service that a hospitalized patient would have to pay in the home environment (diet, light, heat, bed linen change). It does not object to the increase as such, it seems to it corresponds to the increased costs that have taken place in four years. Finally, according to the Czech Medical Chamber, the authorisation of health insurance companies to penalise providers is unprecedented and excluded in democratic countries. In the wider context, it recalls the repeatedly criticised unequal status of insurance and health care establishments and draws attention to the problem even more severe than the one contained in the proposal, namely the distorted and non-transparent rules for concluding insurance and health care contracts; the existence and absence of a private doctor or health care institution is decided by the de facto favor or adversity of a monopoly health insurance official, not patient preference.

16. The association of patients of the Czech Republic is, on the contrary, in agreement with the opinion of the applicants. Only the attending doctor can decide what needs to be done for the patient in a specific case and this is precisely to be covered by public insurance. According to the association, it is even necessary to prohibit the parallel provision of individually paid care in establishments working contractually for a public insurance company. They reject all restrictions on the payment of health care, whether by law or by law, as they are fundamentally contrary to Article 31 of the Charter. They also reject regulatory fees, including the bed care fee, as they have nothing to regulate. The number of patients treated after their introduction has fallen only by the poorest, but they are really sick. On the contrary, the phenomenon called for control examinations has spread, which some providers have made significant trade. The amount of the hospitalisation fee is inconsiderate and therefore supports the argument of the proposal for its annulment. The sanctions that insurance companies can impose on providers are senseless, and the real motivation for their implementation must have been to provide a tool to liquidate certain health insurance providers. The opinion of the Association of Patients of the Czech Republic included the expression of the National Council of Persons with Disabilities. It considers the issue of health fees to be the most important subject under discussion. They do not agree to their payment. In handicapped patients, they have no regulatory role, hospitalization is always associated with a number of unpleasant, in the expression of the described obstacles, and therefore try to avoid hospitalization. Moreover, these patients have more frequent medical conditions, the need for a hospital stay is longer, generally more difficult to treat. These persons are further limited in earning opportunities, in reality the job offer is minimal for them. Invalidity pensions, which are usually their only income, are very low and the set amount of the bed care fee makes them unacceptable. On a model example, the National Council of Persons with Disabilities calculates that for disabled persons, the payment of regulatory fees, including hospitalisation fees, can be economically liquidating.

17. The Constitutional Court also provided information on standard and superstandard health care and on the participation of patients, as dealt with by legislation in the neighbouring countries, in view of the historical context, for our relevant countries.

18. In Slovakia, Law No 576 / 2004 Z. z., on health care, health care services, and the amendment and addition of certain laws, health care as a "body of working activities, which are carried out by health professionals, doorman provided by a liekov, health workers Pomôcok and dietetic food with cieľom predžije žena žení živých živých živod (delé len, person), increased the quality of his life and healthy development of buducich generace; požitná hodažlivosť zaháňa prevenciu, dispenzarizáciu, diagnostics, liečbu, biomedicinsky výskum, ošetrovateľskú hodažilivosť a pôrodnú assistaciu. 'At the same time, it sets out the principle of equal treatment, according to which" The right to provide health care is guaranteed equally to everyone in the súlade and to the principle of equal zaobchadzania in health care provided by a personalised predpisom. V súlade so principle vrnaký zaobchadzania sa prohibits discrimination, aj z dôvov pohlavia, religious zonania alebo viery, marital state and family state, farby skin, language, political alebo iném zúšľania, trade union activity, nánného alebo sociálneho pôvod, health ného popodohhoutia, veku, property, rod alebo iného postavenia. "Health care is divided from the point of view of public insurance cover, the conditions are laid down in Law No 577 / 2004 Z., the extent of health care paid on the basis of public health insurance and the reimbursement of health care services, supplemented by Government Decree No 722 / 2004 Z., the amount of the insured's remuneration for health care services, and Government Decree No 777 / 2004 Z., which gives a list of diseases in which health performance is partly paid or not paid on the basis of public health insurance.

19. On the question of direct payments from patients in the find sp. zn. Pl. ÚS 38 / 03 of 17 May 2004 (No 396 / 2004 Z. z.), issued in the application procedure concerning "spoplatnenia certain part of the provision of health care provided on the basis of medical poistenia, ako aj kosnov and activities, which are provided on the basis of medical poistenia úzko súvisia, but netvoria jej dostednú súčasť ', the Constitutional Court of the Slovak Republic expressed. In the analogous wording of Article 40 of the Slovak Constitution and Article 31 of the Czech Charter, the legal sentence was worded that" Free care of the podľa Article 40 of the Constitution has a svoj, range', i.e. that nie omitko sa provides free of charge no. "

20. In Austria, however, the other structure of public insurance (about 80% of the Austrian population is insured under the General Social Insurance Act, the remaining population groups, such as civil servants, are insured under special regulations, there are no so-called state insurers, the costs of the care of unemployed persons are included in the health insurance contributions of other persons; It is also possible to conclude non-compulsory extra-standard insurance) and other expenditure structures (around half of the health expenditure is financed by health insurance contributions, a fifth of tax income and over a quarter are financed directly by citizens) - divided by care in terms of remuneration, so that in each public hospital a "general class' (charge / accommodation class) must be created. All persons who do not require admission to a special class shall be admitted to that class. In addition to the general charge class, a" special class' may be set up in a public hospital, which is intended for the admission of persons or of their family members who require admission to that class and, on the basis of their income or property conditions, are able to pay contributions to the treatment day and other payments in the special class for themselves or for their family member [see for example Section 32 of the Hospital Act for Vienna (Wiener Krankenanstaltengesetz 1987 - Wr. KAG)]. In the general class, the payment of care (fees / contributions for care, so-called "Pflegegebühren ') is (with certain exceptions) covered by all hospital performance (since 1997, hospital care payments have been largely dependent on medical and nursing performance in Austria). For example, the costs of transporting patients to and from the hospital are not included in the care payments, the cost of making dental allowances - unless they are linked to treatment provided in the hospital, the production of orthopaedic aids (replacement of parts of the body) - as far as the therapeutic support is concerned, the cost of the funeral of an individual who died in the hospital [see Section 44 (4) of the Hospital Act for Vienna (Wiener Krankenanstaltengesetz 1987 - Wr. KAG)]. The same applies to additional procedures which are not related to medical procedures (not related to medical procedures) and are provided at the express request of patients. In addition to the care payments (insurance premiums), special fees (Sondergebühren) and fees may be required. This is, for example, a special accommodation fee, the so-called outpatient fee (so-called" Ambulatorium sbeitrag, "which was allegedly cancelled in 2003, since many citizens were exempted from the charge), as well as the cost of transporting patients, dental compensation, unless they are related to hospital treatment, orthopaedic aids, etc. Patients in a special class may also be required to receive a contract (medical) fee [cf. § 45a of the Hospital Act for Vienna (Wiener Krankenanstaltengesetz 1987 - Wr. KAG)]. The same applies in respect of fees for laboratory or consular examinations, rtg or other physical performance and for the activities of special medical practitioners such as anesthesiology and intensive medicine. It is therefore an exercise under a private contract. A part of the contract fee (not less than 40%) falls to the treating physician. The hospital also collects the so-called" cost contributions'. Exceptions are also provided for here, i.e. some persons do not pay or have a reduced rate (taking into account the amount of income - e.g. if the patient's income does not exceed about 900 €). Reimbursements for care and, where applicable, special fees are published in the Land's Law Collection (Journal) by the Land Government in the form of regulations. The hospital charges the patient on the last day before his release, only after six weeks from the due date of the account can legal late interest be charged - the patient's weakness is calculated after his release from the hospital, giving him time to pay later, only then the legally regulated interest is applied. A person may object in writing or orally to the bill of payments within two weeks of issuing the account. The objection shall be decided by the Magistrate as the Regional Administrative Office. There are exceptions for certain population groups in paying for the participation. Co-participation is normally required for dental practitioners, non-contractual doctors, therapists, psychologists, etc. Some performance or means (e.g. dental bridges) are paid in full by the patient.

21. In Poland (see IMPROVING THE HEALTH-CARE SYSTEM IN POLAND, OECD document No. JT03321394 of 10.5.2012), access to basic care is ensured without limitation on the basis of general health insurance. Health care is not divided into standard and above standard. Most of the basic care, regardless of the ownership status of the provider, is still covered by public health insurance. Poland pays 7.4% of GDP to the healthcare system. The share of privately owned outpatient care facilities increased from 42% in 2000 to 82% in 2009, and the overall use of outpatient care increased. Poland is one of the OECD countries, which has a high proportion of direct payments (medicines, medical fees for specialised doctors in private establishments, dental payments, pre-paid medical care packages paid by the employer to employees). All these services are formally paid separately because there is no private insurance, although discussions on the need to introduce private health insurance have been taking place in Poland for at least ten years. The National Health Fund (NFZ) is a non-profit organisation whose primary task is to provide access to public health insurance services. Service providers shall be granted equal treatment. The NFZ is fully responsible for evaluating the needs and checking the agreed medical services. In addition to the contract services, the NFZ also finances selected public health programs, outpatient treatment regulations, experimental programs, rehabilitation and spa treatment and long-term care. Since 2008, the list has been extended to highly specialised treatment procedures. In 2009, the legislation mentioned the so-called guaranteed healthcare package for the first time, which is a comprehensive list of medical services covered by health insurance, excluding such medical performance as plastic surgery, influenza vaccination, sex-changing surgery and in-vitro procedures. The primary care providers have a contribution for the patient, while the payment scheme for the care of specialists is a service fee. In the case of care covered by public health insurance, no payment shall be made for a bed in a hospital.

22. In the Federal Republic of Germany, as regards the question of the distribution of health care in terms of its remuneration to standard and superstandard, whether the division relates only to "complementary" or "related" care, used materials and aids, or also to medical performance as such, was addressed in this specific question by a letter from the Federal Ministry of Health (Bundesministerium für Gesundheit). The reply received shows that the remuneration for hospital care provided is determined primarily on the basis of case flat rates according to the DRG system and additional payments. Such remuneration shall be granted for the total amount of performance required in individual cases to ensure effective and adequate patient care. These are so-called general hospital functions, including the care of the sick, necessary operations, hospital stay, meals and other activities of the hospital. If it requires health indications, this includes treatment with the chief. Hospitals can charge optional - above standard - performance, which is different from general hospital care if their separate billing has been agreed. The patient may also require treatment by a certain doctor of the facility (Chefarztbehandlung), although this is not necessary according to the health indication; the agreement to choose a doctor applies to all hospital doctors who are entitled to issue accounts and are involved in the treatment of the patient. All doctors involved in the treatment receive separate invoices, which must be paid for normal hospital reimbursement under the general hospital performance system. The amounts charged shall be reduced by 25% of the corresponding credit for the remuneration for medical treatment at the rates for the treatment day. As a superior service you can arrange a hospital stay in a single or double room. In addition, the Constitutional Court found that the provisions of § 2 of the Fifth Social Code, which regulates legal health insurance (Sozialgesetzbuch V - Gesetzliche Krankenversicherung, hereinafter referred to as "SGB V '), show that health insurance companies pay health care to insured persons with regard to the principle of economy (§ 12 SGB V), while at the same time the quality and effectiveness of healthcare must correspond to a generally recognised state of medical knowledge and must take into account medical progress (§ 2 SGB V in fine). The patient's participation in payments other than general hospital performance depends to a large extent on the type of private health insurance offered in Germany. As regards the regulatory fee (supplement - Zuzahlung) for hospitalisation, the fee is set at €10 per calendar day, but is maximum for 28 days of hospitalisation in the calendar year - see Section 61 of SGB V. Other regulatory fees are additional prescription fee, rehabilitation fee, ambulance transport fees, etc. As in the Czech legislation, maximum limits are set for fees levied and various exemptions (e.g. for long-term unemployed in Hartz IV, etc.). The regulatory fee for a visit to a medical practitioner, dental practitioner, outpatient specialist, psychologist (so-called Praxisgebühr), which was set at €10 per calendar quarter and was the income of a health insurance company, was cancelled by the Federal legislator on 31 December 2012. For the sake of interest, the Federal Social Court (BSG) concluded in 2009 that this regulatory fee did not interfere with the constitutionally guaranteed rights of patients (see judgment of 25.6.2009 sp. zn. B 3 KR 3 / 08 R).

23. The documents provided (in particular the material of: 6.11.2012, author: Petr Gola, available at http: / / finexpert.e15.cz / za.den. hospital -plattime-100-kc- yak -to-v-ostatnich) also show that in Europe the hospital fee is in the following relations:

Belgium - The basic participation of patients with health insurance in a state hospital is €14.71 per day. In addition, an admission fee of €42 is needed.

Bulgaria - Health insurance is paid 2% of the minimum wage per day by citizens. Currently the minimum monthly wage is 270 BGN (138 €). The participation per day is €2.76 per day.

Estonia - The level of participation in hospitalization varies according to individual medical facilities. The most, however, is €1.60 a day.

France - The basic hospitalisation fee is €18 per day (€13.50 in a psychiatric institution).

Latvia - The patient's contribution varies according to the type of hospital and treatment. The contribution ranges from LVL 9 (€14).

Luxembourg - The hospitalisation fee is €19.62 per day.

Germany - The basic participation of patients with health insurance is €10 per day of hospitalisation.

Austria - The amount of the patient's contribution varies according to the type of hospital and Länder. It moves around €10 per day of hospitalization.

Sweden - The level of participation in hospitalization varies according to individual medical facilities. However, the maximum amount is SEK 80 (€8,94) per day.

Switzerland - Patients in state hospitals pay 15 CHF (12 €) per day.

24. The applicants submitted a reply to the submitted comments and opinions, in which they dispute, in particular, the various arguments of the Ministry of Health. They repeat the criticism of the explanatory memorandum, which they find completely unsatisfactory. The Ministry did not in any way refute the lack of legal limits on basic and more economically demanding options of care, the wording of the contested provisions makes the extent of the care covered by public health insurance dependent on the Ministerial Decree. Even in the law, the condition of the same therapeutic effect cannot establish the authority of the Ministry to determine arbitrarily which care has such effect and which no longer. The Ministry's overriding idea of practical application of the contested regulation has no basis in the law. The optimal option of care will not be covered by public health insurance under the conditions laid down by law depending on the patient's state of health, but purely on whether or not it will be described as a more economically demanding option in the statutory regulation. It also does not appear from the wording of the Public Health Insurance Act that the more economically demanding option, marked by the so-called Decree, could be an ad hoc option in the case of a particular insured person based on a medical point of view, rather a disinterpretation of the Ministry. It is also not appropriate to refer to current practice, since the health care paid by the insured person is, contrary to the contested scheme, laid down directly by law. If a single indicator of the daily consumption cost of 10% of the poorest households in 2010 is the increase in the fee, this is more likely to be against the increase in the fee, as it is unacceptable in a civilized country that the charge for a single day of bed care exceeds all the expenditure taken into account for calculating the daily consumption of the poorest households. The parties to the sanctions imposed by health service providers recall that they did not in any way call into question the possibility of delegating private law to the exercise of public administration, but criticised the absence of legal limits on the level and possibility of reimposing fines, the inadequate adjustment of the upper limit and the disproportionate increase in the upper limit of the fine for non-collection of regulatory fees. In particular, in response to the statement of the Union of Health Insurance Companies, the applicants state that the adopted possibility of paying the patient extra for care has nothing to do with the concept of the right to free health care and on the covered medical devices established by the Charter. They express concern that the contested treatment will be implemented in the spirit of the trend of recent years, when the more the insured pay, the closer the coverage. In relation to the reservations against the increase in the regulatory fee, the notice on cancellation of the fee for the item on the recipe cannot then be relevant, which is not of practical importance for insured persons receiving bed care. The point is that the fee is not limited by any limit and also applies to children under 18 years of age. The appellants certainly do not agree with the position of the General Health Insurance Company, which rejects the proposal in the part concerning the care options as purposeful and incorrect, and that the list of health performance only indicates the performance, which has already been designated by the law as covered by the cheapest alternative. The appellants insist that the law itself does not indicate any performance, so it does so to the extent that the regulation is sublegal, which they consider to be a deficit of constitutionality. They also reject the claim of the insurance company that the increase in the charge for the provision of bed care required practice because the current amount of CZK 60 did not have enough demographic effect and did not lead to the desired objective, thus reducing the overuse of bed care. The appellants disagree with the initial premise that the insured persons deliberately extend their stay on the bed arbitrarily, but according to them the fee does not have any regulatory function. In this respect, the insurance companies argue that they have not provided any empirical data (which they undoubtedly have) for their claims. The applicants point out that they have tabled a bill (House Press No. 979) which would abolish the bed fee for children under the age of 18. While the government disagreed with this on the pretext of legislative shortcomings, it said that it generally shares this intention. The opinion of the Czech Medical Chamber is identified by the appellants in the part where the contested legislation is criticised for inconstitutionality. On the contrary, it does not agree with the view that it is okay if the law allows the patient to offer a more comfortable performance or a more comfortable aid at an additional cost with the same therapeutic effect. Intentions of Article 31 The charter cannot be paid for by public health insurance without more comfortable execution or more comfortable facilities. The opinion presented goes against the desirable trend when more comfortable performance and more comfortable medical supplies are only for those who can afford to pay extra for them, not for all insured persons. The condition of the same therapeutic effect is also problematic when it is left to the discretion of a minister who has such an effect and who does not. The applicants also reject the opinion of the Czech Medical Chamber that the increase in the charge for the provision of bed care corresponds to the increase in the costs incurred in recent years. Finally, with the arguments of the Association of Patients of the Czech Republic and the National Council of Persons with Disabilities, the applicants fully identify and emphasise their seriousness.

A) Regulation on the definition of health care, which is provided in the basic and more economically demanding version

25. Provisions:

Section 11 (1) (f): The insured person has the right to choose the option of providing health services under Section 13,

Section 12 (n): The insured person is obliged to pay to the provider or to another body which has provided the health services to the insured person, the difference between the price of the health services provided and the amount of the health insurance reimbursement provided under Section 13.

Article 13 (3) to (7):

(3) Where the health services referred to in paragraph 1 can be provided in more than one way, all of which satisfy the conditions laid down in paragraph 1 and have the same therapeutic effect, the health services shall be reimbursed in such a way as to comply with the efficient and economical use of public health insurance resources (hereinafter referred to as the "basic variant '). Other forms of health services, according to the first sentence, which do not meet the conditions for the efficient and economical disposal of public health insurance sources (hereinafter referred to as the" more economically demanding option'), shall be paid from health insurance at the level set for the reimbursement of such health services in the basic variant.

(4) Only health services which are thus identified in the implementing legislation issued pursuant to § 17 may be considered more economically demanding. A more economically demanding option cannot be identified as health care that can only be provided in one way.

(5) Prior to providing health services that can be provided both in the basic variant and in the more economically demanding variant, the provider is obliged to offer the provision of health services in the basic variant and to inform the insured about the more economically demanding option, including the difference between the price of the more economically demanding option established in accordance with the price regulation and given in the provider's price list, and the amount of the payment of health services in the basic variant provided for in the implementing legislation issued under § 17 and the price regulation. The procedure under the first sentence shall not apply if, due to the medical condition of the patient, it is not possible to request his consent and it is urgent to save life or health. The price list of more economically demanding health services must be published by the provider on the premises of the healthcare facility in a accessible place and in a way that allows remote access.

(6) In the cases referred to in paragraph 5, the provider shall record in the health file of the insured person that he has been offered the provision of health services in a basic variant and that he has been informed of the possibilities of providing health services in a more economically demanding variant. Part of the entry in the health file is the consent of the insured person to provide the health services in the basic variant or to provide the health services in the more economically demanding option, if the insured person has decided for such a variant; in that case, the entry in the medical file shall also include the consent of the insured person to pay an amount equal to the difference between the price of the more economically demanding option and the amount of the payment of the health services in the basic variant. Such consent shall be signed by the insured person and the treating physician; if the insured person is unable to sign the alert due to his medical condition, he shall confirm his undoubted speech of will with his signature by the attending physician and another witness. The record shall state the manner in which the insured person has shown his will and the health reasons preventing the signature of the insured person.

(7) Providers shall not give preference to insured persons who choose an economically more demanding option when providing health services.

Article 17 (4): The Ministry of Health provides by decree a list of health performance with point values and with the indication of health care variants according to § 13.

B) Increase the regulation fee for provided bed care from 60 CZK to 100 CZK / day

26. Paragraph 16a (1) (f):

(1) The insured person, or his legal representative, is obliged to pay a regulatory fee of CZK (...) 100 per day for the provision of the services paid to the provider who provided the services, including for the provision of bed care including spa rehabilitation care, the day on which the insured person was admitted to provide such care, and the day on which the provision of such care was terminated, shall be counted as one day; this also applies to the stay of the child's guide, if it is covered by health insurance under Section 25. This is without prejudice to obligations arising from other laws.

C) Authorisation of health insurance companies to penalise health care providers for infringement of certain provisions of the Public Health Insurance Act

27. Provisions:

§ 32 (5): In the event of a repeated infringement pursuant to paragraph 4, the health insurance company shall be entitled to impose a fine of up to CZK 1 000 000. The fine may also be imposed repeatedly. When imposing a fine, the health insurance undertaking shall take into account the seriousness of the infringement, the level of blame and the circumstances in which the infringement occurred. The fine may be imposed within 1 year of the date on which the health insurance undertaking has established a breach or failure to fulfil the obligation, but not more than 3 years after the date on which the infringement or non-compliance occurred. The fine is the income of the health insurance company that imposed it.

§ 44 (5): For repeated infringements of the obligation laid down for providers in § 11 (1) (d), the competent health insurance company shall impose a fine on the provider up to CZK 1 000 000; the determination of the amount of the fine shall take into account the seriousness of the infringement, in particular the manner in which it was committed and the consequences thereof and the circumstances in which it was committed; a fine may be imposed within 1 year of the date on which the competent health insurance undertaking has established an infringement, but not more than 3 years from the date on which the infringement occurred; the re-imposition of the fine is the reason for the termination of the contract for the provision and reimbursement of the services paid without the application of the period of notice referred to in Article 17 (2).

§ 44 (6): The fine imposed under paragraphs 1 to 5 shall be the income of the health insurance undertaking which imposed it.

§ 13 (8): For repeated infringements of the obligation under paragraphs 6 to 7, the competent health insurance company shall impose a fine on the provider up to CZK 1 000 000. The determination of the amount of the fine shall take into account the seriousness of the infringement, in particular the manner in which it was committed and the consequences thereof and the circumstances in which it was committed. The fine may be imposed within 1 year of the date on which the relevant health insurance undertaking has established an infringement, but not more than 3 years from the date on which the infringement occurred. The fine is the income of the health insurance company that imposed it. Repeated grant of the fine is the reason for the termination of the contract for the provision and reimbursement of health services without the application of the period of notice referred to in Article 17 (2). The provider shall not be responsible for the infringement if he proves that he has made every effort to prevent the infringement.

Paragraph 16a (9) to (11):

(9) The provider shall collect the regulatory fee referred to in paragraph 1 from the insured person or his legal representative unless it is an exemption from the payment of the regulatory fee referred to in paragraphs 2 to 4. In the event of a repeated and continuous breach of this obligation, the health insurance company is entitled to impose a fine of up to CZK 1 000 000. The fine may also be imposed repeatedly. When imposing a fine, the health insurance undertaking shall take into account the seriousness of the infringement, the level of blame and the circumstances in which the infringement occurred. The fine may be imposed within 1 year of the date on which the health insurance undertaking has established a breach or failure to fulfil the obligation, but not more than 3 years after the date on which the infringement or non-compliance occurred. The fine is the income of the health insurance company that imposed it.

(10) The provider shall not levy regulatory fees in connection with the provision of services paid which are not subject to regulatory fees under this Act. When this obligation is repeated, the health insurance company is entitled to impose a fine of up to CZK 50,000 on this provider.

(11) Repeated grant of the fine to the provider pursuant to paragraphs 9 and 10 shall be the reason for the termination of the contract for the provision and reimbursement of the services paid without notice pursuant to Article 17 (2).

28. The proposal for the abolition of the marked provisions of the Act on Public Health Insurance was submitted by a group of fifty-one Members of Parliament of the Czech Republic and thus in accordance with the conditions contained in the provision of § 64 paragraph 1 (b) of Act No. 182 / 1993 Coll., on the Constitutional Court. In the present case, it can therefore be concluded that the conditions of active legitimacy on the part of the applicant are met.

29. The Constitutional Court is required, in accordance with the provisions of Paragraph 68 (1) of the Law on the Constitutional Court in proceedings for the control of laws or other legislation, to assess whether the contested legislation has been adopted and issued in a constitutional manner.

30. The text of the contested legislation was incorporated into the Act on Public Health Insurance 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, which have been amended by Content Act No. 369 / 2011 Coll., amending Act No. 48 / 1997 Coll., on Public Health Insurance, and amending and supplementing certain related laws, as amended, and certain other laws; However, as amended by the contested regulation, only the existing terminology changes. The draft amendment (later published under No. 298 / 2011 Coll.) of the Act on Public Health Insurance was submitted to the Chamber of Deputies by the Government of the Czech Republic on 13 April 2011 (House Press 325). By Resolution No 592 of 21 June 2011, the Lower House approved the proposal by a majority of 105 Members out of 180, 73 votes against the proposal.

31. The Senate discussed the referral (referral on 30 June 2011) on 21 July 2011 and in Resolution No 281, the majority of the 75 Senators present voted in favour of its rejection. The Chamber of Deputies of the Chamber of Deputies discussed the rejected bill on 6 September 2011 (resolution 668), and the bill was approved by a majority of 103 Members out of 177 present. 68 Members voted against. The law was delivered to the President of the Republic on 15 September 2011 and signed on 29 September 2011.

32. The Constitutional Court notes that the adoption and issue of the legislation under review took place in the prescribed manner.

33. Following the finding that the contested legislation had been tested in the light of the constitutionality of the procedure for its adoption, the content of the contested provisions could be dealt with. The justification is designed in the same spirit as the proposal, thus gradually addresses the constitutionality first of all the division of health care and health services into a variant of basic and more economically demanding, then an increase in the charge for providing bed care and finally the right of health insurance companies to penalise for the defined actions of the health service provider.

A) Variants of health services in terms of their reimbursement from health insurance

34. As described above, the appellants see the unconstitutional nature of the legislation, on the one hand, in the way it is defined, namely in the wording (or absence) of the conditions and criteria of the health care options in terms of its reimbursement from health insurance, and, on the other hand, in the form it was done. Thus, the first set of objections calls into question the possibility at all for the legislator to divide healthcare according to whether or not the patient should pay for it. It is therefore desirable to reflect further considerations on the answer to this fundamental question, namely whether the distribution of health care (having the same therapeutic effect in the context of the treatment under examination), according to the criterion of its reimbursement by public insurance, allows Czech constitutional order or not.

35. The content of Article 31 of the Charter is for this to be determined. It guarantees everyone the right to health protection. Citizens are entitled, under public insurance, to free health care and medical supplies under the conditions laid down by law. The question is whether this provision of the Charter, which constitutes the right to free health care and to public health care, includes without further delay all available and taking into account the incoming care and facilities, and whether, at the same time, the possibility of dividing a certain part of the care as above-standard and removing it from the public insurance reimbursement scheme, more precisely, full remuneration.

36. Pursuant to Article 89 (2) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution), enforceable decisions of the Constitutional Court are binding on all institutions and persons. The content of the right to free healthcare has been repeatedly addressed by the Constitutional Court in the past. In this respect, three of its decisions are essential: the finding of sp. zn. The Constitutional Court also expressed its opinion on the broader context of healthcare funding in addition to the substance assessment. In view of the binding nature of the supporting parts of the reasoning, the Constitutional Court had to rely on these decisions even now.

37. The possibility of dividing health care into standard, i.e. paid from public insurance, and above-standard, i.e. partly or entirely paid by the patient, the Constitutional Court has already admitted in the sp. zl. In the reasoning of the finding - the terminology of the law now under appeal - the choice of care is imputable to them, even though it focused on the substance of the case, namely the legislative form of legislation: "The right to free health care and health care is for citizens on the basis of public insurance and under the conditions specified by the law. Therefore, if these conditions can only be regulated by law, it is imperative that the scope and the manner in which they are provided be defined by the same legislative regime. Other than legal regulation would be a violation of the Charter and therefore constitutional. The definition of the extent of the amount of healthcare provided for full or partial remuneration cannot be allowed to be left to provisions other than statutory legislation. This would put the sphere of protection of fundamental rights and freedoms under the authority of an executive who is not entitled to such powers." He made it even more strongly stated in the finding in point sp. zn. This interpretation was explicitly agreed by a group of seven dissenting judges. The same sentence was also cited in the majority opinion of the plenary in the sp. zn. Pl. ÚS 1 / 08 (paragraph 125), where it was further noted that... "formal adherence to the invalidity of medicine for individuals in the broadening concept could rather lead to a reduction in the level of free medical care paid from public insurance in the true sense of all members of the company." In his different opinion, Judge George Nykodemi said: "I do not want to say at all that all health care must be provided free of charge.... It is possible by law to determine which medical care activities are fully covered by public health insurance, which partly and not at all, as is the case with the reimbursement of medicinal products and food for special purposes. At the same time, however, voluntary insurance must be provided to cover treatment costs which will not be covered by public health insurance. The fact that the State has not been able to draw up a law, at least since 1995, to determine health care fully or partly covered by health insurance, and thus to define the care from these funds not paid at all, so that the public health insurance budget is balanced, although for a number of years it is clear that expenditure is higher than income, cannot be a reason for breaching constitutional order. In the finding sp. zn. Pl. ÚS 35 / 93 defined the possibilities for this legal regulation in such a way that the cross-compliance of this law by law does not mean that the law can rule out the law entirely. The law may determine what is free and what is no longer free. 'Judge Vojen Güttler applied for his dissent. The direct payment of services was admitted, albeit with more careful wording, by Judge Pavel Holländer in his different opinion:" In relation to Article 31 of the Charter, it is also possible to imagine the direct payment of services (again with the possibility of contractual insurance) which are not an immediate part of healthcare. "

38. The Charter includes provisions on fundamental rights which are different in terms of normative content. First of all, these are fundamental human rights that emerge directly from human existence, and only this is the basis for defining their constitutional content and scope. These are values which contain fundamental rights for the preservation of the integrity of man and for ensuring his dignity, such as the right to life, the integrity of a person and personal freedom. Such rights are inalienable, inalienable, unbiased and irrevocable (Article 1 of the Charter). Their limits may be adjusted under the conditions laid down in the Charter and only by law (Article 4 (2) of the Charter).

39. On the other hand, the rights and freedoms contained in Title Four as "Economic, social and cultural rights' require further factors to be cohesive; does not act directly as the rights referred to above. In the case referred to in Article 31 of the Charter, this fact is explicitly expressed in the second sentence. The right to free health care and medical supplies is limited to the scope of public insurance and is therefore conditional on the payment of insurance amounts and the amount of funds thus created and ready for redistribution. All rights contained in Title Four shall depend on the economic and social level of the State and the level of living associated with it. This right falls under the regime of Article 4 (1) of the Charter, whereby obligations may be imposed only on the basis of the law and within its limits and only with respect to fundamental human rights.

40. The real fulfilment of the claimed right to health care and health care, which will be truly effective and correspond to modern trends in medicine, is conditional primarily on adequate financial background. The fact is that - and it is not meant in the negative sense of the word - the financial needs of health care are constantly growing. Progress, research and technological options in the field of economic growth and the volume of public health insurance resources linked to it are not enough. The Ministry of Health, as the body responsible for the stability of the resort, therefore logically seeks ways to obtain additional funds for the financing of health care (or health services). Increasing the proportion of patients' direct payments is one of them.

41. This possibility is not excluded by expressly introducing the Constitution into Article 31 of the Charter. The concept of "free of charge" from the point of view of the title of the Fourth Charter governing economic, social and cultural rights, which was also interpreted by the Constitutional Court. In the finding sp. zn. Pl. ÚS 35 / 93 (No 49 / 1994 Coll.; N 7 / 1 SbNU 51) he dealt with a proposal to repeal the provisions of the article I Act No. 190 / 1993 Coll., amending the provisions of Section 4 (1) of Act No. 29 / 1984 Coll., on the System of Primary and Secondary Schools (School Act), as amended. In Article 4 (1) of Act No. 29 / 1984 Coll., the sentence "Education and education are free." was replaced by the sentence "In schools which are part of the system of primary and secondary schools, citizens are entitled to free education, unless otherwise provided for by the law." The Constitutional Court annulled that provision in the "unless otherwise provided for by the law 'section, stating as the main reason that even though under Article 41 (1) of the Charter of Law referred to in Article 33 (2) of the Charter, i.e. the right to free education in primary and secondary schools, can only be invoked within the limits of the laws implementing those provisions, it can hardly be considered that the investigation of the limits of fundamental rights and freedoms would still be compatible with the legal exception of the contested inconditionality of the right to free basic and secondary education. In the subsequent finding sp. zn. This regulation sets out the extent to which pupils are provided free of charge with textbooks, teaching texts and basic school supplies. He rejected this proposal and stated in his reasoning that the freedom of education cannot consist of the State bearing all the costs incurred by citizens in implementing the right to education. Thus, the State may demand that part of the costs be paid in connection with the exercise of the right to education, and the Government is undoubtedly entitled to do so. This does not in any way call into question the principles of free education in primary and secondary schools. These two findings were defined by the Constitutional Court in a general sense in such a way that the cross-compliance of the law contained in the Charter by law does not mean that the law does not exclude the law entirely. The law may determine what is free and what is no longer free.

42. From the perspective of the Constitutional Court, it is essential that the content of Article 31 of the Charter is not effectively emptied. In his spirit, public health insurance funds must be fully covered by quality, full-fledged and effective care as basic, standard care. As was said in the find of the sp. zn. The difference between standard and superior care should not consist of differences in the suitability and efficacy of the treatment. The law does not regulate the health care that a doctor or health care facility can provide, but which it must provide, in the general interest, so that all insured persons are equally entitled to treatments and treatments that meet objectively identified needs and requirements of appropriate level and medical ethics. The development orientation of health care, based on laws, is therefore not based on the transfer, better 'health care activities from free care to the area of insured persons paid directly, but rather in the direction of improving the activities provided free of charge from public health insurance'. It should be noted that, although the existing legislation does not raise such concerns as a matter of principle, since the Public Health Insurance Act in Paragraph 13 (1) defines the quality conditions of the public health services covered by the public health insurance in accordance with the two options of care in such a way that (a) they correspond to the health status of the insured person and the purpose for which they are to be provided and are reasonably safe for the insured, (b) they are consistent with the current available medical science knowledge, (c) there is evidence of their effectiveness in relation to their purpose. On the other hand, it cannot be excluded that, with more treatment options, each of which meets the above parameters, a more expensive procedure may be more appropriate than cheaper in view of individual conditions of a particular patient. In such a case, the treating physician must be given the possibility to decide, in order to protect the patient's life and health, on the suitability of the use of an economically more expensive variant which, if the conditions are met, will still be fully covered by public health insurance. The patient cannot get into a situation to which the current treatment is based: he will be instructed about a basic and more economically demanding treatment procedure, and the treating physician will inform him of the fact that he will be fully covered by the health insurance only in the basic option, but at the same time, with regard to his specific conditions, recommended as a more appropriate treatment procedure in the more economically demanding option. It is therefore necessary to establish the legal limits between informing about the underlying variant and the more economically demanding variant (s) and the recommendation to use one of the possible options for treatment. If the treating physician decides to recommend a more economically demanding option for a specific diagnosis, he can only do so on condition that it is fully covered by public health insurance. It cannot be ignored that the patient is a weaker party in negotiating treatment conditions and, if the legislation provides protection for consumers in the field of binding legal relations of material nature, the more so the legislation must provide protection for the patient where the values are more relevant. Examples of such a situation can be patients with associated illnesses in whom the underlying exercise option would entail an increased risk of complications, possibly life-threatening, and therefore the more economically demanding performance should be considered as essential to protect the health of a particular patient. In such a case, it is impossible that this, given the individual circumstances of the patient, is not fully covered by public health insurance.

43. The above arguments thus lead the Constitutional Court to a partial conclusion that the very division of health services covered by public health insurance funds into basic, fully paid public insurance, and the more economic option is in line with our constitutional order. It is also important that the European Union countries approach this issue similarly. The above mentioned conclusion of the Constitutional Court of the Slovak Republic, contained in the Found sp. zn. Pl. ÚS 38 / 03 (No 396 / 2004 Z.), is also inspiring, according to which free care under Article 40 of the Constitution of the Slovak Republic (in the analogous version of Article 40 of the Slovak Constitution and Article 31 of the Czech Charter) has its scope and does not mean that all care is provided free of charge.

44. It has been said that economic, social and cultural rights, including the right to free health care under Article 31 of the Charter, are expressly specified by the relevant law and can only be invoked (within its limits) (Article 41 (1) of the Charter). On the other hand, it has to be a law, it is not enough to make legislation legal. In the sp. zn. Pl. ÚS 35 / 95, the Constitutional Court put it very clearly: "The right to free health care and medical aid is for citizens under public insurance and under conditions specified by law. Therefore, if these conditions can only be regulated by law, it is imperative that the scope and the manner in which they are provided be defined by the same legislative regime. Other than legal regulation would be a violation of the Charter and therefore constitutional. The definition of the extent of the amount of health care provided for full or partial remuneration cannot be allowed to be left to provisions other than statutory legislation. This would put the sphere of protection of fundamental rights and freedoms under the authority of an executive who is not entitled to such powers." In the light of the above, the Commission considers that, in the light of the above considerations, the Commission considers that the measure is compatible with the internal market. For a further review, this interpretation is decisive and it will be examined whether the legislator, in addition to its own distribution of health care and medical supplies, has indeed defined the scope and manner of providing them within individual variants, or has actually remained in the implementing ministerial decree.

45. In the conditions of the modern (regulatory) state, the executive is granted its own standard-making activity. In order to be regarded as a constitutionally conformal and indiscriminate exercise of power, it must always have the limits laid down by law for its norm. Ministries and other administrative offices may, pursuant to Article 79 (3) of the Constitution, legislate by law, within its limits and only, if empowered by law, legislate. In the sp. zn. Pl. ÚS 45 / 2000 of 14.2.2001 (N 30 / 21 SbNU 261; 96 / 2001 Coll.) The Constitutional Court stated: "It can therefore be summed up that the constitutional definition of the derived standard of execution is based on the following principles: (a) the regulation must be issued by an authorised body, (b) the regulation cannot interfere with the matters reserved for the law (so it cannot provide for primary rights and obligations) and (c) the legislator's clear will to regulate above the legal standard (thus the scope of the regulation must be opened)." The Implementing Decree, as another case of derived normomaking, was addressed in the find sp. zn. Therefore, the constitutional order of the Czech Republic allows the legislator to authorise the executive authorities under certain conditions to legislate. However, the authority must be explicit and the content of the substatutory provision must comply with the law which it implements and must therefore be issued on its basis and within its limits. However, if Parliament resigns to the establishment of the relevant framework and authorises the executive to set out what is right, what are the rights and obligations of persons or what are the powers and duties of administrative authorities, it infringes the principle of a limited delegation of standards, thus violating the principles of division of power, as laid down, inter alia, in Article 2 (1) of the Constitution. The restriction of the normomaking delegation is one of the traditional and key aspects of the division of power and system of brakes and mutual balances on which the constitutional order of the Czech Republic is built. In principle, a legislator in a division system of power cannot delegate its power to another entity, to entrust it to other hands (...). According to the case law of the Constitutional Court, any obligation does not need to be laid down by law, since the requirement that any obligation be laid down directly and exclusively by law would obviously lead to absurd consequences, in order to deny the meaning of secondary standard, since the definition of certain rights and obligations of the addressees of the standard '(cf. Case No 410 / 2001 Coll.) is a conceptual part of each legal standard. However, the statutory law must always be within the limits of a law which is either expressly defined or resulting from the meaning and purpose of the law. On the basis of legal authorisation, the implementing act is to specify the matter covered by the fundamental features already under the law itself, but must never go beyond the law. "In the finding sp. zn. Pl. ÚS 3 / 2000 of 21.6.2000 (N 93 / 18 SbNU 287; 231 / 2000 Coll.), the Constitutional Court stated that Article 79 (3) The Constitution must be interpreted in a restrictive manner, which means that the powers to legislate must be specific, unambiguous and clear.

46. The Constitutional Court has already expressed its views repeatedly on the authorisation of the executive in the implementation (or regulation and the related possibilities of limitation) of the fundamental rights contained in Title IV of the Charter. In the above mentioned finding sp. zn. Pl. ÚS 45 / 2000 he dealt with the fundamental right to do business (Article 26 (1) of the Charter), which "does not operate immediately and can only be invoked within the limits of the law, but on the other hand, for any limits of such business or activity there is a reservation of law." At the time, the Government's regulation under consideration contained a number of provisions in the area of free enterprise. Although the Constitutional Court respected the principle of a freer relationship between the law and the regulation, when it considered its compliance with the meaning and purpose of the law as a whole to be a priority, it was forced to state that the grammatical, systematic or logical interpretation, even with the greatest extent of the extensive approach, does not imply that it is possible to derive from that provision of the law regulation of the production that follows agriculture or to restrict the application of the manufactured goods on a particular market. If the legislator cannot delegate the scope of the regulation of the relations provided for by the law to power-efficient and thus in fact resign from its legislative obligation, all the more so, the executive authority cannot assume the right to such regulation itself, referring to a law which clearly has a different purpose and purpose. The contested regulation infringed the rule of law and restricted free enterprise in a way that neither foresees nor provides for a framework regulation. If the Constitutional Court acceded to the repeal of the statutory provisions on the ground that the limits established by the legislator for the legislative activity of the executive are uncertain, all the more so must be done in an area where the legislative initiative of the government does not foresee the law at all. In the sp. zn. Pl. ÚS 5 / 01 of 16.10.2001 (N 149 / 24 SbNU 79; 410 / 2001 Coll.) The Constitutional Court stated that it is not true that any restriction on the fundamental right enshrined in Article 26 (1) of the Charter can only be implemented by law (and not by government regulation). Government Decree No. 445 / 2000 Coll., on the establishment of milk production quotas for the years 2001 to 2005, considered (except for one provision) to be constitutionally conformal, since it only, on the basis of explicit legal authorisation, specified the issue laid down in the basic features of the law itself. "The opposite conclusion, which would require the setting of any obligation directly and exclusively by law, would obviously lead to absurd consequences, namely to deny the meaning of secondary (and, in some cases, primary) standards, since the definition of certain rights and obligations of the addressees of the standard is a conceptual part of each legal standard. 'If the Government has respected the relevant principles for the issue of the contested regulation - on the basis of explicit legal authorisation - and this regulation only specifies in more detail the legal authorisation cited, i.e. the issue covered by the basic features already under the law itself, the regulation cannot be unconstitutional; the limits of fundamental rights and freedoms in this case have been laid down directly by law (Article 4 (2) of the Charter) and the obligations arising from this Regulation are therefore imposed" on the basis of and within the limits of the law' (Article 4 (1) of the Charter). In the finding sp. zn. Pl. ÚS 23 / 02 (see above), the Constitutional Court annulled the provisions of Act No. 109 / 2002 Coll., on the performance of constitutional education or protective education in educational establishments and on preventive educational care in educational establishments and on the amendment of other laws. The law introduced into the Czech legal order the term "contractual family," which however did not specify any further, and its provisions were indefinite in this respect. The rights and obligations of the persons and bodies involved in the Institute and their powers would have to be laid down by the Ministry's decree in order for the Institute to become operational at all. Therefore, the contested provisions were, inter alia, contrary to Article 79 (3) of the Constitution, since they constituted an inadmissible delegation of standards to the executive authority and allowed the limits of fundamental rights and freedoms to be adjusted by a statutory legal standard. The contested provisions of the law were contrary to this article of the Constitution because the Ministry was empowered to modify something for which the law itself did not impose any limits which it itself did not regulate. It was therefore not a matter of implementing the law, but of supplementing it, as the implementing act would have to be precisely defined by the Institute of the Contract Family. Therefore, there was no appropriate legal regulation to be implemented by the Ministerial Decree. By its concise and indeterminate nature, the law did not provide the necessary basic framework for that substatutory regulation. The contested law did not follow the constitutional principles of sublegal norm in the present provisions. The definition of the concept of contract family in the law was vague. The conditions under which a child can be placed in a contractual family were equally uncertain ("in particular justified cases, if the child's interest so requires'). The intensity of this uncertainty was so high that it excluded the possibility of determining the normative content of the provisions by using the usual interpretation procedures.

47. The centre of gravity of the modification of the health service variants lies in Section 13 of the Public Health Insurance Act. Paragraph 1 of this provision (which is not proposed for cancellation) contains the definition of health services covered by health insurance; (b) comply with the current available knowledge of medical science; Paragraph 2 (also not currently contested) defines the service lines (e.g. health care preventive, diagnostic, provision of medicinal products, transport of insured persons, etc.) which are covered to the extent and under the specified conditions of public insurance. In paragraphs 3 and 4 of this Article, the distinction of care options is defined by providing, if the health services referred to in paragraph 1 can be provided in more than one way, then, where all of these methods meet the conditions laid down in paragraph 1 and have the same therapeutic effect, those which are consistent with the efficient and economical disposal of public health insurance resources, referred to as the "basic variant '. Other forms of health services satisfying the same conditions, except for the efficient and economical use of resources, are only covered as a" more economically demanding option' from public insurance at the level set for the reimbursement of such health services in the basic variant. The more economically demanding choice of health services must be identified in implementing legislation; According to Section 17 (4) of the Public Health Insurance Act, the Ministry of Health sets out by decree a list of health performance with points and indications of health care options. A more economically demanding option cannot be identified as health care that can only be provided in one way.

48. It is therefore a question of whether, by this formulation, the legislature complied with Article 31 of the Charter. According to the Ministry of Health, the first paragraph of Section 13 of the Public Health Insurance Act in particular guarantees that both options will meet the highest possible standard of health care corresponding to the health condition and needs of the patient. Thus also the basic variant, which meets all the criteria of paid health care including the same therapeutic effect. The Ministry interprets the variants so that, first, the patient's health status will always be carefully assessed and the optimal care option will be established, which will become the basic option for the case. Only then will it be examined whether there is, in fact and formally, a more economically demanding variant with the same therapeutic effect for the relevant treatment procedure. It will be the kind of care that no longer brings medical improvement for the patient (has the same therapeutic effect), but only increased comfort or subjectively preferred by the patient. In the opinion of the Ministry of Health, the elements of both options are enshrined directly in the law, and the decree only makes its provisions user-friendly.

49. This can only be partially accepted. It is true that the general basis of the basic and more economically demanding variants is contained directly in the law. However, from the perspective of the Constitutional Court, it is essential that the regulation in the law itself, even without an implementing decree, is sufficiently understandable to the addressees and would be applicable. The implementing regulation should only specify its details. In addition to the amount of the general framework reproduced in the Public Health Insurance Act, the Ministry of Health is currently in a decree issuing a list of health performance with points, where health services can be offered between the basic and more economically demanding options. Therefore, health service providers, insurance companies and insured persons are only clear from the decree what is the basic option and what health performance, aids, resources and medical material can or must be paid in excess of the public insurance remuneration. It does not come from the law itself, and it cannot be inferred from it by the freest interpretation. The Public Health Insurance Act therefore only took the first step towards defining the standard and superstandard (in the words of the Public Health Insurance Act, the basic and more economically demanding options). The second but substantial part, without which the Institute is inviable, namely the specific determination of what is in the intentions of Article 31 of the Charter of free care, is only covered by the Implementing Decree. According to the Constitutional Court, the legislature did not comply with the requirements set out in the constitutional order and the repeated interpretation of the existing decision-making practice.

50. From Article 4 (2) The Charter shows that "the requirement of a legal basis for the possible limitation of fundamental law is derived from a democratic principle as well as from the principle of a material rule of law. Its purpose is to make it impossible for the executive to realise their own ideas about how and how much fundamental rights can be reduced. By granting this power to a democratically legitimate parliament, it is to be ensured that the restriction of fundamental rights will take place only after a democratic parliamentary discourse and, moreover, obtain a restriction of fundamental law and subsequent democratic feedback" (cf. Wagner, Eliska, Šimělek, Vojtěch, Langášek, Tomáš, Pospíšil, Ivo et al. Charter of Fundamental Rights and Freedoms). Comment. Praha: Wolters Kluwer, 2012, p. 128). The legislator cannot delegate to power the powerful imposition of primary obligations, the substatutory regulation must always respect the purpose and meaning defined by law. The sublegal regulation itself, without any support in the law, defined the definition of the character to which the obligation is bound. This is therefore an adjustment which, inter alia, coincides with the requirement under Article 4 (1) of the Charter. In relation to the material under consideration, it can be concluded that some of the essential definitions to which the obligation to pay health care (although after the choice of its more economically demanding option) is primarily defined only by a subordinate regulation, as well as the obligation of healthcare providers to offer variants or documentation of patient consent.

51. As has been said, sublegal legislation is unconstitutional if the limits of fundamental rights and freedoms cannot be imposed by law alone. This is also the case in the present case with the limit of the right to free healthcare. Although the issue is regulated in basic features already in the Act on Public Health Insurance itself, only partly. The necessary basic framework for substatutory legislation is therefore too brief and vague. In addition, the legal definition as referred to in recital 42 cannot be overlooked.

52. For the above reasons, the contested provisions of Sections 13 (3), (4) and 17 (4) of the Act on Public Health Insurance remain to be repealed for the contradiction with Articles 4 (2) and 31 of the Charter. As the related provisions of § 11 (1) (f), § 12 (n), § 13 (5) to (7) cease to apply, these provisions were also repealed.

B) Increase the regulatory fee for the provided bed care

53. The appellants challenge the provisions establishing the charge obligation [Paragraph 16a (1) (f) of the Public Health Insurance Act], or not the fee as such, but its increase to the current 100 CZK per day of provided bed care.

54. The Constitutional Court has already dealt with the withdrawal of the charge for the provision of bed care in the sp. zn. Pl. ÚS 1 / 08 (No 251 / 2008 Coll.; N 91 / 49 SbNU 273) in the context of the assessment of the constitutional conformity of the regulatory fee system in health as a whole. The proposal to cancel the fee - in the amount of CZK 60 per day - was rejected. In relation to all charges, he found reasons for maintaining the maximum degree of restraint in the exercise of his power to proceed to a derogatory decision, with the fact that the submission of the most appropriate means of fulfilling social rights under the title of the Fourth Charter is the task of political parties based on the mandate obtained from voters. At the same time, as a supportive step, he carried out a reasonable test with the conclusion that the contested adjustment would stand in all its steps. In relation to the now addressed hospital charge, the Constitutional Court took into account that the applicants themselves admitted that it was a charge for "hotel services', namely the setting of a charge for hospital bed and board, which does not have to be out of the constitutional limits. Thus, in the case of the payment of the hospitalisation fee, it is clearly not possible to constitute free healthcare or medical supplies within the meaning of Article 31 of the Charter, but also other related services provided in parallel. Otherwise - led ad absurdum - Article 31 The Charter was to be entitled to free accommodation or hospitality services outside medical facilities and whether or not they were provided in connection with health care or not. The Constitutional Court concluded that, in a situation where it would not be challenged because of the lack of conformity of the legislative process, it would consider the part of the proposal (to abolish Article 16 (1) (f) of the Public Health Insurance Act) as manifestly unfounded.

55. It follows from the substance of the conclusions set out above. However, the change in circumstances, namely the change in the legislation that occurred after the decision in the case of page Pl. ÚS 1 / 08 and which increased the fee from the original CZK 60 to the current CZK 100 per day of hospitalisation, leads the Constitutional Court to believe that the question of constitutional consistency of the provision needs to be reopened. Indeed, the increase in the fee rate of 2 / 3 is so significant that it is in fact a different provision. After all, it was in the sp. zn. The Constitutional Court stated that... "he did not approach questions relating to social rights in a static manner, but with particular emphasis on the state at the time of his decision." At the same time, in relation to the field of social rights, he recalled that in the intentions of the finding of sp. zn. Another option is to change or shift the legal environment consisting of sub-constitutional legal standards, which, in summary, affect the view of constitutional principles and principles without, however, deviating from them and, above all, do not restrict the principle of democratic statehood (Article 1 (1) of the Constitution). Another option for changing the case law of the Constitutional Court is to amend or supplement those legal standards and principles which constitute binding reference points for the Constitutional Court, i.e. those contained in the constitutional order of the Czech Republic, unless, of course, changes contrary to the limits laid down in Article 9 (2) of the Constitution, i.e. changes to the essential requirements of the democratic rule of law. "

56. The Constitutional Court therefore reapplied the provision in question in its current form to a rationality test, which, in similar cases, already uses the methodology [in addition to the finding of sp. zn. The test reflects, on the one hand, the need to respect the legislator's relatively large discretion and, on the other hand, the need to exclude its possible excesses. It consists of four steps: (1) the definition of the meaning and substance of social law, namely its essential content, (2) the assessment of whether the law does not affect the very existence of social law or the actual realisation of its essential content, (3) the assessment of whether the legal regulation pursues a legitimate objective, i.e. whether it is not a arbitrary substantial reduction in the overall standard of fundamental rights, (4) the consideration of whether the legal instrument used to achieve it is reasonable (rational), although not necessarily the best, most appropriate, effective or wisest. As regards the first three steps of the test, reference may be made to the conclusions contained in the reasoning of the finding, sp. zn. the third round of the test is only specified and specified that the objective pursued, namely to remove from the public health insurance reimbursement scheme those services which do not have anything to do with their own provision of health care, is legitimate. However, for the reasons set out below, the Constitutional Court has come to different conclusions on the part of the law under appeal.

57. As has been said, the charge for the provided bed care is essentially a payment for the provided "hotel services." This is evidenced by the argument of the Ministry of Health to the specific level of the fee in question, which is derived from per-capita costs for food, drinks, energy, water etc. It is therefore seen as the equivalent of the costs that the patient would necessarily incur anyway (even outside the health care facility). The first constitutional reservation of the Constitutional Court is then referred to. The anchored obligation does not differentiate in any way where bed stay is only a normal part of the treatment, with the health service only related, in the extreme case of substitutable stay outside the medical facility, although it would not be a practical and optimal solution for the patient, and where it is already a necessary part of the actual medical performance. It is difficult to accept that "hotel service" is provided to the patient during hospitalization in the intensive care unit. In such cases, the obligation to pay the fee is already in conflict with Article 31 of the Charter. The hospital, which is a health care in the narrower sense, paid for by public health insurance, must be provided free of charge as there is no alternative for the patient.

58. Another factor causing a constitutional deficit is the absence of limits on this payment; In this respect, the Constitutional Court had to fully testify to the appellants. The Public Health Insurance Act imposes a general obligation, it has to be paid by persons employed, including groups of people at social risk, children, people with disabilities, etc. Similarly, the obligation to pay the fee is not limited in time, so the patient should pay it in full regardless of the duration of the hospitalisation. A combination of these factors may cause a financially unacceptable situation not only in the above mentioned categories of patients. In any case, it denies the essence of solidarity in healthcare. The measure effectively mitigating the effects of the obligation in question is not an exemption from the fee of those insured persons who are proved by a decision, notification or confirmation issued by the institution to assist in a material emergency of the benefit provided. The activity involved in the handling and provision of an official document, which is difficult to expect or request from people at social risk.

59. The legislation in question, which is criticised above, also stands out in the context of the hospital charge paid in the surrounding countries, as described in the narrative section. In the Federal Republic of Germany, a supplement (Zuzahlung) is charged for hospitalisation of €10 per calendar day, but the maximum is collected for 28 days of hospitalisation in a calendar year [Paragraph 61 of the fifth book of the Social Code (Sozialgesetzbuch V - Gesetzliche Krankenversicherung)]. For the sake of completeness, it should be noted that this was affected by some of the comments made in the present case that this charge, namely the supplement, was not abolished. On 31 December 2012, the Federal legislator abolished the regulatory fee for visiting a practitioner, dental practitioner, outpatient specialist, psychologist (so-called Praxisgebühr), which was set at €10 per calendar quarter and was the income of a health insurance company. In doing so, the Federal Social Court (BSG) concluded in 2009 that this regulatory fee did not interfere with the constitutionally guaranteed rights of patients (see judgment of 25.6.2009 sp. zn. B 3 KR 3 / 08 R). In Slovakia, according to the provisions of Section 1 (1) (a) of Decree-Law No 722 / 2004 Z. z., the amount of the insured person's payment for services related to the provision of health care, issued for the implementation of Law No 577 / 2004 Z. z., on the extent of health care paid on the basis of public health insurance and on the remuneration for services related to the provision of health care, does not apply. In Austria, the insured person also pays a contribution for each day of hospitalisation of around €10 per day (the so-called hospital fee) - the amount of which varies from one country to another, but the maximum is paid for 28 calendar days per year. These funds are usually used to compensate out-of-court patients for lack of care. Even if the patient is not exempted from the charge, he may ask the hospital for emergency remission due to the current adverse situation. In the case of dependent family members of the insured person, a contribution of 10% of the daily rate is expected to be paid during the first four weeks. From the fifth week onwards, hospital treatment is free of charge for insured persons and non-insured family members. In some cases, the health insurance company may pay part or full of the travel expenses incurred for access to healthcare (MISSOC: Your social security rights in Austria. Brussels, 2011, p. 11).

60. As has been said, the constitutional deficit of the levy increase is found precisely in its lack of differentiation and application in combination with the absence of any limits. Paragraph 16a (1) (f) of the Public Health Insurance Act thus contravenes Article 31 of the Charter and Article 3 (1) of the Charter guaranteeing fundamental rights to all without distinction of property. The Constitutional Court therefore acceded to its annulment. At the same time, the legiskation period was established by the end of 2013, as the bed-care fee is currently not a minor income of health service providers and would be affected unreasonably and unfairly by its immediate failure. The legislator is thus created a time space to set the payment parameters in terms of this finding.

61. The Obiter Dictum gives the Constitutional Court the legislature to consider whether to specify the chosen, truly confusing terminology. The payment in question is called a charge, although in legal terminology the charge is the payment obligation of a natural or legal person in connection with the activity of a public authority (State or municipality) carried out in the exercise of public authority in its interest. This is a payment which is intended, first, to act as an incentive in relation to an entity seeking a particular act of public authority (i.e., as an objective of the seriousness of an act, non-abuse of public authority, such as judicial fees) and also to perform a fee as part of the economic equivalent of the activity of public authority. Article 11 of the Charter provides that taxes and charges may only be imposed on the basis of law, while it must be pointed out that the determining feature of taxes and charges is that they are subject to public budgets. It is evident that this kind of payment is not involved. It is, in essence, a payment for "hotel services," which are the income of health service providers and do not result in public funding. No State authority in the provision of its functions or resources has been delegated to the provider or in connection with the collection of regulatory fees. These are private law entities. It would therefore be more appropriate not to use the term "charge 'in this context.

C) Authorisation of health insurance companies to penalise health service providers

62. The subject of the assessment is a list of the negotiations contained in the Public Health Insurance Act for which health insurance companies may impose sanctions on providers. The Constitutional Court only marginally addressed the issue of property sanctions in the sp. zn. In this way, he dealt with property sanctions for not collecting a fee from medical institutions (according to the new terminology "health service provider '). In the then valid and effective version it was a property penalty of CZK 50,000. Paragraph 16a (9) of the Act on Public Health Insurance, as amended, is now challenged, which allows for the same offence to impose a fine of up to CZK 1 000 000, together with paragraphs 10 and 11, all in relation to the proposal to repeal the provision for increasing the hospital's regulatory fee. In addition, the current proposal is directed against the property sanctions provided for in other provisions of the law, namely the provisions of Sections 13 (8), 32 (5) and 44 (5).

63. The Constitutional Court has, however, not until now - neither in the finding of the Pr. This should also be the case with the intensity of its deformation resulting from the specific status of health insurance companies, given that they manage in particular public and not private funds. The Constitutional Court does not dispute that it is generally acceptable for a particular body to act in private legal relations and at the same time be given the authority of the highest authority, but in relation to the health care provider (services) - the health insurance company must take into account the specificities of the reality of the Czech environment. A precondition for the viability of the health service provider is the conclusion of a contract to provide and pay them with a health insurance company, in particular a dominant general health insurance company. In spite of this objective existential dependence on health insurance companies' friendliness, there are no formal, verifiable and, above all, transparent rules in terms of the provider's entitlement to its conclusion if certain assumptions are met. This de facto unequal position is further exacerbated by the broad sanction of insurance undertakings.

64. The Constitutional Court has already dealt with the issue of equality in rights in a number of its decisions. In particular, he stated that the constitutional principle of equality, as set out in Article 1 of the Charter, does not mean absolute equality. In the finding of sp. zn. Pl. ÚS 6 / 96 of 5.11.1996 (published under No. 295 / 1996 Coll., N 113 / 6 SbNU 313), to which further case law has been followed, this was specifically expressed as follows: "The constitutional principle of equality, in the rights enshrined in Article 1 of the Charter, cannot be understood as absolute and equality as an abstract category. The Constitutional Court of the Czech and Slovak Federal Republic has already expressed its understanding of equality, enshrined in that article, as a relative equality, as all democratic constitutions mean it, only demanding the removal of unjustified differences (the finding of the Constitutional Court of the CSFR published under No 11 of the Reports of the Resolution and of the Constitutional Court of the CSFR). The principle of equality in rights must therefore also be understood as meaning that legal discrimination in access to certain rights between legal entities must not be an expression of pleasure, but does not imply that any right must be granted to anyone."

65. The Constitutional Court generally interprets the principle of equality from a dual point of view [see for example the findings of sp. zn. Pl. The first is due to the requirement of the legislature to rule out the libel in the procedure of differentiating groups of entities and their rights, and the second to the requirement of the constitutionality of the aspects of differentiation, i.e. the inadmissibility of a fundamental right and freedoms by the legislator. While the postulate of equality does not imply a requirement of general equality between everyone and everyone, it implies a requirement that the law does not, without justification, favour or disadvantage one over another. Thus, the Constitutional Court also admits a legal inequality if there are constitutionally acceptable reasons for doing so.

66. That is not the case here. The dominant position of insurance undertakings, in particular the General Health Insurance Corporation, in combination with the sanction and regulation against health service providers, namely performance limits, financial penalties for the prescription of medicines and the required care in excess of the prescribed limits, is not offset by anything on the part of health service providers, such as the contractual obligation on insurance undertakings in cases where objectively generally binding conditions are met. According to Article 16 (a) (10) and (11) and Article 32 (5) and Article 44 (5) and (6) of the Act on Public Health Insurance, the sanctioning powers imposed by paragraphs 1 to 5 of the Act on Public Health Insurance are thus limited to the constitutionally acceptable inequalities as defined by the Constitutional Court in the above mentioned findings. Moreover, this inequality is multiplied by a large range of most sanctions, which is not, in itself, unconstitutional, as will be stated below, but highlighted in combination with the above mentioned facts. Thus, the designated legal provisions are contrary to Article 1 of the Charter guaranteeing equality in rights.

67. As regards the provisions of Section 13 (8) of the Public Health Insurance Act, this relates to the obligations of health service providers arising from the newly created distribution of care into variants in terms of remuneration from public insurance. In particular, it allows a breach of the provider's obligation to record in the patient's medical file, on the one hand, the offer of a health service in the basic variant and a lesson on the possibility of drawing it in the more economically demanding and, on the other hand, the patient's consent and the breach of the prohibition to favour the patient who elects the more economically demanding service variant. In view of the abolition of the basis of the material enabling the provision of paid care in variants, it follows from the logic of the case that it is another reason for the repeal of that provision that the penalties for its implementation under the repealed provision are lifted. Therefore, this provision is hereby repealed by the Constitutional Court on the date of the declaration of the finding in the Collection of Laws. The other provisions shall be repealed by the end of 2013, which is sufficient time for the legislator to make an adjustment to the wording of the contested provisions in the intentions of the finding. Furthermore, the legislator should consider not to include any adjustments to the objectives of this finding in the penalties for not charging other health care, which were not affected by the proposal under assessment.

68. The Constitutional Court has not testified to the appellants that a wide discretion of the health insurance company is not acceptable, both in determining the amount and parties to the possibility of re-imposing fines and that the upper limit of the fine is not adequate. Currently - in the find sp. zn. Pl. ÚS 1 / 12 of 27.11.2012 (No 437 / 2012 Coll.) - the Constitutional Court addressed the question of constitutional conformity of the part of Act No. 372 / 2011 Coll., on health services and the conditions for their provision (Health Services Act), defining the facts of offences and other administrative offences, as well as the amount of penalties for them. The proposal of a group of senators in this section [specifically in relation to the provisions of Sections 114 (1) (g) and 117 (1) (e), (f), (g), (n) and (r) and (3) (d), (e), (f), (g), (h), (i) and (m) of the Health Services Act], according to which the upper limits of the fines are excessively high in view of their seriousness, was rejected as it did not find the form of sanctions to be inconsistent with Article 11 (1) in conjunction with Article 4 (1) and (4) of the Charter. At the same time, it noted that the possibility of reviewing the specific application of the provisions in question in the proceedings on constitutional complaints remained unaffected. It has substantiated its conclusion in recitals (329- (337) of that finding and this reasoning is now referred to.

69. The Obiter Dictum Constitutional Court finds that the scope of the sanctions cannot be balanced by the legitimate objective pursued by their imposition, i.e. the fair treatment of public health insurance funds. Such a measure appears disproportionate in a situation where, in addition to the General Health Insurance Company, such public funds are managed by other occupational health insurance companies which are purely private-law entities. The legislator should consider a more cost-effective way of managing public health insurance funds from the point of view of the organisation. As regards the horizontal relationship between health insurance companies and health service providers in order to avoid its continuing distortion, inter alia, by conferring sanctions on health insurance undertakings, it should, under current conditions, be the body awarded by that authorisation either by the Ministry of Health itself, or (alternatively) in the case of state and regional health service providers by their promoters and, in the case of private health service providers, by competent bodies such as the professional medical associations.

70. To the affected parts of Sections 12 and 44 of the Act on Public Health Insurance, it must be added that, during the examination of the proposal, these provisions have been amended by Act No. 458 / 2011 Coll., on the amendment of the laws related to the establishment of a single collection point and other changes to tax and insurance laws (the amendment concerns only the structure of the provision where the existing text of the provision § 12 will become paragraph 1 and will be supplemented by paragraphs 2 and 3 and, in the case of § 44, paragraph 5 will become paragraph 2, paragraph 6, paragraph 3). The amendment will become effective only as of 1 January 2015, so the operative part of the decision corresponds to the legislation in force and effective at the time of decision-making, as well as to the change that is yet to come into effect. It should be added that, in the case of the provisions of § 12, the appellants, although the amendment made by Act No. 458 / 2011 Coll. even in the supplemented version of the petition, they did not reflect, but the Constitutional Court, based on the content of the submission, did so. The Law on the Constitutional Court does not link the assessment of constitutionality to the effectiveness of the law but to its validity, as a result of which it must be regarded as admissible proposals for the annulment of the law even if they are not effective as a result of both of the indicated possibilities (see Filip, J., Holländer, P., Šiměl, V. Act on the Constitutional Court). Commentary. 2., reworked and expanded edition. Praha: C. H. Beck, 2007, str. 387).

71. In the light of the above arguments, the Constitutional Court has held that the provisions of § 11 (1) (f), § 12 (n), § 13 (3) to (8), § 16a (1) (f) and § 9 to 11 [in so far as they relate to the charge for bed care under the provisions of § 16a (1) (f) of the Act on Public Health Insurance], § 17 (4) in the words "and with the indication of the variants of health care under § 13", § 32 (5), § 44 (5) and § 6 in the words "imposed under paragraphs 1 to (5) of the Public Health Insurance Act and the amendment of certain related laws, as amended by Act No 458 / 2011 Coll., under the provisions of Paragraph 70 (3) of the Constitutional Court of Procedure," imposed on the provisions of Paragraph 32 (5), "of Law No 48 / 1997 Coll. The enforceability of the annulled operative part No III and part of the operative part No IV of the finding shall be postponed until 31 December 2013 for reasons of divorce.

72. In accordance with Section 70 (3) of the Law on the Constitutional Court, the relevant parts of the annex to the Decree of the Ministry of Health No. 134 / 1998 Coll., which publishes a list of health performance with points values, as amended, were also deleted in the designation of performance as variants more economically demanding. For the sake of clarity, the Constitutional Court interprets the operative part II by deleting the description of the more economically demanding option in the decree alongside the symbol "E 'itself.