The Constitutional Court found no 66 / 2010 Coll.
The Constitutional Court's finding of 9 February 2010 on the application for annulment of Decree No 618 / 2006 Coll., on which framework contracts are issued, or its individual provisions
Valid
66
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court ruled on 9 February 2010 in plenary composed of Stanislav Balík, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janů, Vladimir Krok, Dagmar Lastovecká, Jiří Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Excellent, Eliška Wagner and Michaela Židlická on the proposal of the Group of Members of the Chamber of Deputies of the Parliament of the Czech Republic to repeal the Decree of the Ministry of Health No. 618 / 2006 Coll., which is issued by framework contracts, alternatively, on the abolition of its individual provisions, with the participation of the Ministry of Health as a party to the proceedings
as follows:
Motion denied.
Reasons
Definition and recap of the proposal
1. The Constitutional Court has received a motion from a group of 45 Members of the Chamber of Deputies of the Parliament of the Czech Republic (hereinafter referred to as "the draftsman ') requesting the annulment of the Decree of the Ministry of Health No 618 / 2006 Coll., on the Constitutional Court, as amended (hereinafter referred to as" the Constitutional Court Act'). According to the appellant, the contested Decree No 618 / 2006 Coll. was issued in contravention of the constitutional principle of the responsibility of the Government of Parliament, inter alia, in respect of the Institute of Confidence under Article 68 (3) and (4) of the Constitution, in breach of the restrictions imposed by the Constitution on the Government, which was provisionally entrusted with the exercise of its functions until the appointment of a new Government [Article 62 (d) of the Constitution], and in breach of the powers of Article 17 (3) of the Act No 48 / 1997 Coll., and the need for legal basis for acts of public authority [Article 2 (3) of the Constitution, hereinafter "Law of Fundamental Rights'].
2. The appellant points out in the first sequence that Decree No 618 / 2006 Coll. was prepared and published at a time when the Ministry was managed by a member of the Government which did not gain the trust of the Chamber of Deputies. It points out that the Government of Mirka Topolánek, appointed on 4 September 2006, presented itself before the Chamber of Deputies pursuant to Article 68 (3) of the Constitution, in which it did not gain confidence in the vote on 3 October 2006 (Article 68 (4) of the Constitution). As a result of the refusal of confidence by the Government of the Chamber of Deputies, the Government decided on 11 October 2006 to resign (Article 73 (2) of the Constitution) and the President of the Republic accepted that resignation on the same day [Article 62 (a), Article 73 (3) of the Constitution]. At the same time, the President of the Republic has delegated this Government pursuant to Article 62 (1) of the Treaty. (d) the Constitution, by exercising its functions provisionally pending the appointment of a new Government. The new Government was then appointed by the President of the Republic on 9 January 2007.
3. It also stresses that the "fundamental feature of the relationship between legislation and the executive" in the constitutional system of the Czech Republic as a democratic parliamentary republic is the constitutional principle, according to which the duration of each government is "derived from the Chamber of Deputies" (Article 73 (2), sentence of the second Constitution) or explicitly expressed trust (Article 73 (2), sentence of the first Constitution). According to the appellant, this is about expressing the government's responsibility to the Chamber of Deputies (Article 68 (1) of the Constitution). That principle is, in the appellant's view, relevant precisely in a situation where the government is in a state of resignation in the current mandate to carry out its functions on a provisional basis. Although the Constitution does not contain a specific positive or negative list of powers of the 'Interim Government', this does not mean, in the appellant's view, that such a government can exercise its powers to the same extent as if it were a government with the trust of the Chamber of Deputies. This mandated government must "ensure that the fundamental substance of democratic governance is preserved in the parliamentary republic," which is to be expressed in the word used provisionally in Article 62 (d) of the Constitution.
4. The appellant supports the view that the government in the above-mentioned position must limit the performance of its functions to the "necessary minimum," by reference to the opinion of the legal doctrine (Pavlíček, V. - Hřebejk, J. Constitution and the constitutional order of the Czech Republic, 1st part. Linde, Praha, 1998, p. 221 n.). The appellant also points out an attempt to amend the Constitution by means of a 1999 proposal (press number 359), which was not approved, because the Senate rejected the proposal. Among other things, this proposal was intended to explicitly restrict the position of the government in the demise and the position of the newly appointed government, for which the Chamber of Deputies has not yet agreed to request a vote of confidence.
5. Furthermore, the appellant submits that the Government of Mirko Topolánek did not set limits between 4 September 2006 and 9 January 2007, but, on the contrary, it acted completely without borders to exercise its powers, which was reflected in the scope of its own government and ministries in that period and in the number of fundamental bills submitted to the Chamber of Deputies. One evidence of exceeding the constitutional limits of the government without the trust of the Chamber of Deputies is to be the contested Decree No. 618 / 2006 Coll., for which the appellant does not see any urgent reason. Its aim was only to "negate" the legal status established by Decree No. 290 / 2006 Coll., which is the decision of the Ministry of Health on framework contracts pursuant to § 17 (3) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and addition of certain related laws, which was issued by previous Minister MUDr. David Rath, who, unlike Minister MUDr. Tomáš Julínek, was a member of the government that enjoyed the trust of the Chamber of Deputies.
6. In the second sequence, the appellant contests the contradiction of the contested Decree No. 618 / 2006 Coll. with Act No. 48 / 1997 Coll. The appellant submits that the Ministry of Health is entitled to take a decision under Paragraph 17 (3) of the fourth sentence of Act No 48 / 1997 Coll. if there is no agreement between the parties to the conciliation procedure on the content of the framework agreement within six months or if the framework agreement submitted is contrary to legislation or public interest. This decision on the framework agreements was taken by the Ministry - in the appellant's view - on 7 June 2006 and was published in the Journal of the Ministry of Health in the part of the Binding Measures under No 1. The texts of each framework agreement are set out in the Annexes to this Decision. On 7 June 2006 the Ministry of Health issued Decree No. 290 / 2006 Coll., which took effect on the day of its publication, i.e. 16 June 2006. The annexes to this decree also contain framework contracts for health insurance companies and health establishments.
7. According to the appellant's objections, the contested Decree No 618 / 2006 Coll. was issued in breach of the provisions of § 17 (3) of Act No 48 / 1997 Coll., since the framework agreements covered by the contested decree were not the subject of a conciliation procedure between representatives of health insurance associations and representatives of the relevant group contractual health establishments represented by their interest associations, since this conciliation procedure, which was called on 6 December 2005 in the opinion of the appellant, did not reach an agreement and ended without success by applying the authority of the Ministry to take the relevant decisions.
8. The Ministry of Health was therefore not authorised under these conditions to issue Decree No. 618 / 2006 Coll., because the conciliation procedure initiated on 6.12.2005 did not reach an agreement within a period of 6 months, and the subsequent "meeting of selected civil associations with representatives of health insurance companies' could not have resulted in such an agreement because it was no longer a proper conciliation procedure. Moreover, a" meeting ', which was subsequently presented as a conciliation procedure, was not even invited by some civil associations representing more medical facilities on the basis of full powers.
9. The issue of the contested Decree No 618 / 2006 Coll. was thus intended to affect the "acquired rights" arising from the health care contracts concluded under the framework agreements under Decree No 290 / 2006 Coll. Following the issue of the earlier decree, public subjective rights against health insurance companies should have been established on the part of health care institutions to conclude individual contracts in the terms of Decree No. 290 / 2006 Coll., which some health care establishments have used. Paragraph 3 of Decree No 618 / 2006 Coll., according to which contracts concluded under the existing legislation "shall be brought into line with that decree by 31 December 2007 ', according to the appellant, is contrary to the principle of legal certainty (Article 1 (1) of the Constitution) and to the legal limits of public authority (Article 2 (3) of the Constitution, Article 2 (2) of the Charter).
10. The appellant therefore requests the Constitutional Court to rule that "Decree No. 618 / 2006 Coll., which is the issue of framework contracts, is hereby repealed with effect from the date of the declaration of the finding in the Collection of Laws."
Observation of the party and the appellant's opinion
11. The Constitutional Court requested the observations of the party to the proceedings, namely the Ministry of Health (hereinafter referred to as "the Ministry") as the authority which issued the contested regulation (§ 69 (1) of the First Law on the Constitutional Court).
12. The Ministry took the view that the issue of the contested Decree No 618 / 2006 Coll. was not contrary to the Constitution, nor does it agree that the issue of that Decree would not be "necessary or urgent." First of all, it points out that the previous Decree No. 290 / 2006 Coll. was issued without fulfilling the conditions foreseen by the provisions of § 17 (3) of Act No. 48 / 1997 Coll., i.e. without the finalisation of the conciliation procedure within the legal period of 6 months. The fact that there are no legal reasons for issuing Decree No. 290 / 2006 Coll. due to the pending conciliation procedure was also stated in the opinion of the Working Commission on the Law of the Private Legislative Council of the Government and the Working Commission on Public Law I of the Legislative Council of the Government. The aim of the Ministry when issuing Decree No 618 / 2006 Coll. was then to remedy this situation, in which the wide range of rights and obligations of the parties concerned were governed by the unlawful legislation and to adapt the framework agreements in such a way as to reflect the outcome of the conciliation procedure, in line with the real possibilities of the parties and the public health insurance system and the public interest.
13. Furthermore, the Ministry states that it does not agree with the appellant's assertion that the conciliation procedure for Decree No 290 / 2006 Coll. was called on 6 December 2005 and did not reach the outcome of the hearing within six months. In the Ministry's view, the conciliation procedure for framework contracts was properly convened by the Union of Health Insurance Companies only on 3 January 2006. It concludes from this that the six-month period laid down by the Act before the Decree No 290 / 2006 Coll. was not elapsed and therefore the legal fact with which Law No 48 / 1997 Coll. linked the formation of the Ministry's power to make a decision was not fulfilled.
14. The meeting on 6 December 2005 was convened by the Medical Trade Club - Czech Medical Association (LOK-SČL) "in the segments of outpatient specialists and practitioners', while in the segment of outpatient specialists the participants agreed that this was not the first round of the conciliation procedure, but only a preparatory meeting, in the segment of practitioners not all providers were sent and the convened negotiations could not be considered as a proper first round of the conciliation procedure within the meaning of § 17 of Act No. 48 / 1997 Coll. In this, the Ministry also refers to the justification for the proposal for the annulment of Decree No 290 / 2006 Coll. under sp. zn. Pl. ÚS 52 / 06.
15. To the appellant's claim that some associations were not informed of the conciliation procedure, the Ministry points out the wording of § 17 (3) of Act No 48 / 1997 Coll., which refers to "representatives of the relevant group contractual health establishments represented by their interest associations' without any specific definition of the bodies involved. The appellant's allegation of failure to notify certain specific entities is manifestly false. It follows from the minutes of the final conciliation meeting of 21 June 2006 that representatives of the Czech Medical Chamber - o. s. (hereinafter referred to as" CLK, o. s. '), Mgr. B., also representatives of LOK-SČL, MUDr. O., were present until the very end of the hearing. According to the Ministry, there was no unanimity on the part of representatives of providers in the segment of practitioners and practitioners for children. In view of the previous agreement, which included the CLK, o. s., and the LOK-SČL, in accordance with which, in the event of a conflict, the decisive power of the mandates expressed by the full powers, and the fact that the agreement concluded was supported by both the Association of Practices and Practices (more than 2000 full powers) and the two associations of health insurance companies, the articulated opposition of the abovementioned bodies, with approximately 200 full powers, is irrelevant for reaching the agreement.
16. Finally, the Ministry states that Paragraph 3 of Decree No 618 / 2006 Coll. cannot be interpreted as directly interfering in the good faith of the rights already acquired, but "states the intention (aim) or declares the outcome of the conciliation procedure to adapt these contracts" to the legal framework provided for in Decree No 618 / 2006 Coll. The former Decree No 290 / 2006 Coll., in the opinion of the Ministry, made a full voluntary adjustment to the relationships in question contrary to the real possibilities of the public health insurance system, where these relationships could not be changed in practice. The Ministry considers this situation to be contradictory to the public interest within the meaning of § 17 (3) of Act No. 48 / 1997 Coll. In view of the above, the Ministry has proposed that the Constitutional Court reject the proposal.
17. The Ministry added to its observations the "minutes of the opening day of the joint negotiations of the parties to the framework agreements' of 3 January 2006;" registration of the continuation of the initial joint action of the parties to the Agreement on framework contracts opened on 3 January 2006 'of 17.1.2006; "registration of the second continuation of the initial joint action of the parties to the Agreement on framework contracts opened on 3 January 2006' of 28 February 2006;" minutes of the final day of the joint deliberations of the parties to the Agreement on framework contracts' of 21.6.2006; hereinafter referred to as an annex thereto; Furthermore, the opinion of the Working Commission on the Law of the Private Legislative Council of the Government on the draft Decree of the Ministry of Health on the Issue of Framework Contracts of 22 May 2006 and the opinion of the Working Commission on Public Law I of the Legislative Council of the Government on the draft Decree of the Ministry of Health on the Issue of Framework Contracts of 15 May 2006. Both opinions are negative in relation to the draft Decree No 290 / 2006 Coll. because of the lack of legal authorisation within the meaning of Article 17 (3) of Law No 48 / 1997 Coll. on the part of the Ministry.
18. The appellant stated in a written reply to the Ministry's observations that it insisted on the proposal because the Government and, respectively, the Ministries were to measure at the relevant time the exercise of public authority on their part with the basic material constitutional principle of the provisional exercise of their functions, i.e. only in necessary and urgent cases and only for a period not significantly exceeding the term of the "government in the demise 'function. Within this limitation, the Ministry was to await a decision on the application for annulment of Decree No 290 / 2006 Coll. in proceedings before the Constitutional Court sp. zn. Pl. ÚS 52 / 06. The appellant also reiterates that the signing of new contracts under Decree No 618 / 2006 Coll. has already been affected in the good faith of acquired rights on the part of natural and legal persons - operators of non-state health facilities. Therefore, the Constitutional Court proposes to repeal the decree in its entirety or at least in those provisions which will be found contradictory to constitutional order.
19. In the requested additional opinion (dated 2 February 2010), the Ministry of Health stated that it is not and has never been a party to the conciliation procedure pursuant to § 17 (3) and (2) respectively, having regard to the wording of the then effective Act No. 48 / 1997 Coll., and therefore cannot comment in more detail on the organisational issues of the conciliation procedure. On 14 December 2005, as a result of the attached copy, the Ministry received an invitation by e-mail (to the address mzdr @ mded.cz) to "the negotiation of the Conciliation Procedure for Framework Contracts', which states that, on 3 January 2006, the meeting of the conciliation procedure in the building OP ŽP Praha, Perštýn 6 was convened. For example, the Ministry imports the regularity of the convening and conduct of the conciliation procedure from the agenda, which included a representative of the participants with evidence of the authorisation to represent, discuss and approve the rules of procedure, the appointment of representatives for the negotiation and the appointment of dates for the negotiation process, including the participation of the representative of the Ministry in the conciliation proceedings. It further stated that the results of the conciliation procedure were submitted to the Ministry within a legal period of six months. In its observations, the Ministry added the following documents in copies (as requested by the Judge-Rapporteur, ref. hereinafter referred to as" the minutes of the hearing convened by Lok SČL for the conciliation procedure for the Framework Agreement for medical establishments providing outpatient specialised care and care for female doctors of 6 December ', signed by the President of MUDr. J. V. and two verifiers of registration; a presentation letter in which the words "Conciliation procedure on the framework contract' are crossed out by hand and replaced by the word" Negotiations', hereinafter referred to as "6.12.2005 at 15.00 for medical institutions providing outpatient specialised care and care for female doctors' (2 sheets); a presentation letter in which the whole heading, as amended by the" Conciliation procedure for the framework agreement of 6.12.2005 at 15.00 for medical institutions providing care for practitioners and practitioners for children and adolescents' (3 sheets), is crossed by hand; hereinafter referred to as the Rules of Procedure for the conciliation procedure for framework contracts, dated 23.11.1998 (3 sheets); Furthermore, the communication by MUDr. Jiří Bek, President of the Association of Health Insurance Companies of the Czech Republic, to which (in the Annex) submitted agreed framework contracts to the Ministry dated 30 June 2006, bearing the stamp of the Ministry's Postal Office dated 30 June 2006; and the above invitation to the conciliation procedure.
Further supporting documents and the appellant's opinion
20. The Constitutional Court, as in the proceedings sp. zn. Pl. ÚS 52 / 06, requested the statement of the amicorum curiae of the Czech Medical Chamber and the General Health Insurance Company, as well as the Association of Health Insurance Companies of the Czech Republic as a convener of the conciliation procedure.
21. The Czech Medical Chamber (hereinafter referred to as "CLK"), through President MUDr. Milan Kubka, stated on the proposal that "it can be confirmed that the conciliation procedure for the framework agreement was called and held on 6.12.2005, the conciliation procedure did not reach an agreement and ended with the exercise of the authority of the Ministry of Health to take the relevant decision to replace the agreement in the conciliation procedure." ČLK further stated that according to its information after the issue of Decree No. 290 / 2006 Coll. before the issue of Decree No. 618 / 2006 Coll. the conciliation procedure was not held. ČLK itself as a professional organization established by Act No. 220 / 1991 Coll., about the Czech Medical Chamber, the Czech Dental Chamber and the Czech Pharmacy Chamber, as amended, does not participate in the conciliation procedure. At the same time, as far as the CLK is aware, in the event of a conciliation procedure, there is a very untransparent mandate commission, which makes it impossible to reliably verify how many full powers there are for specific associations of health care providers, and the Ministry of Health also refuses to make amends. In line with the appellant, they consider the rule contained in Section 3 of Decree No 618 / 2006 Coll. to be an intervention in the rights already acquired and in private commercial relations. The Member also recommended that other civil associations of health care providers should seek opinions.
22. The General Health Insurance Company of the Czech Republic (hereinafter referred to as "SZP"), through the Director of MUDr. Pavel Horák, CSc., MBA, pointed out in its observations that the "initiation" of negotiations convened on 6 December 2005 by LOK-SČL could not be considered as the opening of a conciliation procedure on framework contracts, as the majority of the participants stated, and on the contrary the agreement that the proper negotiation of the conciliation procedure would be called for the next possible date, not later than January 2006, in the form of an advertisement in certain periodicals. The conciliation procedure was therefore initiated on 3 January 2006, as the Association of Health Insurance Companies of the Czech Republic called an opening meeting for that day. For the proper information of health care providers, the invitation to this meeting was also published in the Economic Newspapers and Medical Newspapers. Thus, Decree No 290 / 2006 Coll. was issued by the Ministry on 7 June 2006, i.e. during the conciliation procedure and thus without legal authorisation. The legal uncertainty arising from this situation resulted in a proposal by the Constitutional Court to repeal Decree No 290 / 2006 Coll. and also in the publication of Decree No 618 / 2006 Coll., which responded to the outcome of the conciliation procedure, which was reached within the legally foreseen six months period. In relation to the objection concerning the obligation to bring the content of the existing contracts into line with the content of the framework agreement, ZVP points out the provisions of § 17 (3) of Act No 48 / 1997 Coll., where the legislator expressly states that the contract concluded between the "health insurance company and health establishment is governed by the framework contract '. In summary, therefore, the GPA contends the appellant's objections and recommends that the Association of Health Insurance Companies, which was the initiator of the conciliation procedure, also address the case and have at its disposal the supporting documents to support all claims contained in the GPA's observations.
23. The Constitutional Court, having regard to the annexes to the Ministry's observations, further requested the opinion of the Legislative Council of the Government of the Working Commission on Public Law I of the Legislative Council of the Government on the proposal (future) of Decree No 618 / 2006 Coll. of 18 December 2006, which contains comments of a legislative and technical nature.
24. The appellant added, in its written observations on the above, to the statement of amicorum curiae, that it was in agreement with the opinion of the Member State and did not agree with the opinion of the Court. He reiterated that before the issue of Decree No. 618 / 2006 Coll., there was no proper conciliation procedure, and certain meetings of Minister MUDr. Tomáš Julínek and his deputy representatives with certain politically inclined civil associations of health care providers could not be considered a proper conciliation procedure. The appellant also reiterates the situation in which, by the ministerial procedure, doctors who entered into contracts in different periods under different decrees had different positions. Paragraph 3 of Decree No 618 / 2006 Coll. continues to consider it contradictory to Article 1 and Article 4 (3) of the Charter of Fundamental Rights and Freedoms, since an obligation is imposed under the statutory law in contravention of contracts already concluded between private legal entities.
25. The Association of Health Insurance Companies of the Czech Republic (hereinafter referred to as the "PMI of the Czech Republic"), through the Ing. Ladislav Friedrich, CSc., President, stated in his written statement that the conciliation procedure for framework contracts was convened by default in accordance with Act No. 48 / 1997 Coll. on 3 January 2006. The meeting procedure was convened by the CAP of the Czech Republic. For the proper information of health care providers, the invitation to this meeting was published also in the Economic Newspapers and Health Newspapers. In the opening negotiations, with the participation of representatives of providers of all healthcare segments, the procedural rules for conciliation negotiations were discussed and approved ("Rules of Procedure of the conciliation procedure on framework contracts'). In relation to the negotiations held on 6 December 2005, the CAP states that representatives of the segments and associations of health insurance companies concerned stated that they did not consider this meeting to be the opening of a conciliation procedure for framework contracts. It was also agreed that the proper conciliation procedure for all segments would be called the PMI of the Czech Republic. The CAP already informed the Chairman of the LOK-SČL on 30 November 2005 that it did not consider the conciliation procedure convened on 6 December 2005 to be valid because it was convened by an entity which did not meet the statutory conditions for the conciliation procedure. Furthermore, the CAP states that the conciliation procedure launched on 3 January 2006 reached agreement in the full scope of the text of the framework agreements. The results of the framework contract conciliation procedure were transmitted to the Ministry within 6 months of the opening of the framework contract conciliation procedure for each segment. Finally, the PMI of the Czech Republic added the communication that according to Decree No. 618 / 2006 Coll. they have been concluded since 1 January 2007 by all health insurance companies contractual relations with health care institutions on the provision and reimbursement of health care paid from public health insurance.
26. In relation to the above claims, the PMI of the Czech Republic sent the following documents to the Constitutional Court in copies (except for those previously established by the Ministry): the letter by MUDr. Jiří Bek, President of the PMI of the Czech Republic, dated 30 November 2005, addressed to MUDr. Milan Kubk, Chairman of the LOK-SČL, who expressed the view that the procedure of the LOK-SČL is contrary to the law and that the call for conciliation is invalid; the advertisement "Invitation to the negotiating of the Conciliation Procedure on framework contracts' published in the Economic Newspapers on Wednesday 14 December 2005;" Rules of Procedure for conciliation on framework contracts', dated 28 February 2006; the communication by MUDr. Jiří Bek, President of the PMI of the Czech Republic, by which (in the annex) submitted an agreed framework agreement for the medical care segment, bearing the stamp of the Ministry of Health's Post Office dated 5 June 2006; a letter by MUDr. Vladimir Dryml, Deputy Minister of Health, dated 3 July 2006, giving the Ministry's opinion on the "protest 'concerning the issue of Decree No. 290 / 2006 Coll.; a letter by MUDr. Vladimir Dryml, Deputy Minister of Health, dated 4 July 2006, which returned the Czech Republic's CAP to the framework agreements sent and sent a list of authorised agents with full powers for conciliation to the values of the point, the amount of health care payments paid from public health insurance and the regulatory limitation of the volume of health care provided for 2007," containing a table with "names of agents' and" number of votes', undated, no. POJ 2195a / 17, signature illegible; and the text "framework contract for health care establishments and health insurance companies', undated, each of the 10 pages initialled four times (illegible).
Active legitimacy of the applicant, participation and intervening
27. The Constitutional Court notes that the proposal was submitted by an authorised body in accordance with § 64 (2) (b) of the Law on the Constitutional Court, in this case a group of 45 Members of the Chamber of Deputies of the Parliament of the Czech Republic. This is an admissible proposal (Section 66 of the Constitutional Court and contrario Act).
28. In accordance with Article 69 (1), the Law on the Constitutional Court considers as a party to proceedings for the annulment of laws and other laws to be a party to the proceedings for annulment of the law on the Constitutional Court to be the person who has issued the other legislation whose annulment is proposed. In this case, the Ministry of Health is a party to the proceedings.
29. In accordance with Article 69 (2) of the Law on the Constitutional Court, the Judge-Rapporteur also sent the proposal to the Ombudsman with a call for him to inform whether he was intervening. The Ombudsman replied within the legal period that he did not intervene.
30. For the sake of completeness, the Constitutional Court adds that the Law on the Constitutional Court is based on the principle of legality in terms of the definition of the parties and the interveners, i.e. the competent bodies acquire such status directly from the law. The Constitutional Court cannot grant other bodies the status of interveners, but this does not mean that it cannot obtain the comments of other bodies in the context of the taking of evidence. These bodies are also referred to as amici curiae in the case law of the Constitutional Court. As in the case-related proceedings sp. zn. Pl. ÚS 52 / 06, the Constitutional Court addressed the Czech Medical Chamber and the General Health Insurance Company, in view of the position of the organiser of the conciliation procedure in January 2006, the Association of Health Insurance Companies of the Czech Republic. In view of the content of their observations, the Constitutional Court no longer considered it necessary to establish the position of other players in the conciliation procedure as proposed.
The text of the contested Decree No 618 / 2006 Coll.
31. The Decree of the Ministry of Health No. 618 / 2006 Coll., which is the issue of framework contracts, dated 20 December 2006, with effect from 1 January 2007, was published in the Collection of Laws in the year 193, 2006, which was circulated on 30 December 2006.
32. The text of the contested decree is as follows:
"According to Article 17 (3) of Act No. 48 / 1997 Coll., on Public Health Insurance and on the amendment and amendment of certain related laws, as amended by Act No. 2 / 1998 Coll., Act No. 117 / 2006 Coll. and Act No. 245 / 2006 Coll., hereinafter" the Act ':
Framework contracts for health insurance (1) (hereinafter referred to as "insurance undertakings') and healthcare establishments (2) providing
1. health care for practitioners and practitioners for children and adolescents,
2. outpatient specialised care, with the exception of medical institutions providing physiotherapy (expertise 902 and 9183) and ergotherapy, and for medical institutions providing care for female doctors (expertise 603 and 6043) and clinical loopedia,
3. outpatient dental care,
4. health care in hospitals, professional medical institutions, professional children's and health and long-term care,
5. outpatient diagnostic care (expertise 222, 801, 802, 804, 805, 807, 809, 812 to 819, 822 and 8233),
6. domestic health care, physiotherapy (expertise 902 and 9183), ergotherapy, birth aid, orthoptics and pleoptic care,
7. medical emergency services and transport,
8. medical care,
9th spa care
are listed in Annexes 1 to 9 to this Decree.
Decree No. 290 / 2006 Coll., which issues a decision of the Ministry of Health on framework contracts pursuant to § 17 (3) of Act No. 48 / 1997 Coll., on Public Health Insurance and amending and supplementing certain related laws, is hereby repealed.
Contracts concluded under existing legislation shall be brought into line with this decree by 31 December 2007.
This Decree shall take effect on 1 January 2007.
Minister:
Dr. Julinek v. r. '
(NB: Annexes 1 to 9, the text of which is not useful because of the nature of the objections to the text of the finding.)
Oral proceedings
33. The Constitutional Court referred to the appellant and the party to the proceedings with a request for observations as to whether they agree to waive the oral procedure. The party to the proceedings has given its assent under Paragraph 44 (2) of the Constitutional Court Act. The appellant stated that it did not agree to the abandonment of oral proceedings.
34. During the oral hearing before the Constitutional Court on 9 February 2010, the representative of the appellant first excused the absence of Mr MUDr. David Rath by his departure abroad. He also summarised his argument in three headings. First, he pointed out that he considered it constitutionally unconformal if the government only provisionally took steps beyond the electoral period. He also stated that a proper six-month conciliation procedure was to be carried out following the issue of Decree No 290 / 2006 Coll. before the issue of Decree No 618 / 2006 Coll. which did not happen. It also questioned the conduct of the negotiations the Ministry considered to be a conciliation procedure before the contested decree was issued. Finally, on Article 3 of the contested order, the appellant's representative expressed doubts as to whether "it is possible to impose under the law on private law [...] in order to change the content of their contract within a certain period." The appellant's representative considers this to be "unprecedented interference in private-law relations," while health care institutions are also under pressure from health insurance companies. The solution to the situation should have been a new conciliation procedure, which would have resulted in framework contracts which would have been indicative of contractual relations, but only after the end of the period for which existing contracts were negotiated.
35. In conclusion, the representative of the appellant gave the opinion of Mr MUDr. David Rath. In this part of the speech, the representative of the applicant stated that the importance of the contractual relationship between the health care establishment and the insurance undertaking is "permanent 'in much of the European Union, unlimited in time. In the current system, the choice that a doctor will take care of the insured person of a particular insurance undertaking is not made by an insured person, but by a" health insurance official'. Upon expiry of the contractual relationship, the insurance undertaking may notify without giving any reason that it will no longer contract with the medical establishment. That was supposed to be the main reason why former Minister MUDr. David Rath wanted to secure a "permanent" contract. Any failure of a doctor should not be in the hands of a health insurance official, but in the hands of insured persons who have left the doctor. The applicant's representative also stated that, from personal experience, he is aware of cases where the doctor is afraid to sue the health insurance company as he would not have been contracted for a further period. This principle was also included in the draft law initiated by Mr MUDr. David Rath, but it did not become valid for the veto of the President of the Republic. On the other hand, it was in the interests of lobbying groups and former Minister MUDr. Tomáš Julínek, in order to control the health insurance system in large chains, to convey the position of Mr MUDr. David Rath. In conclusion, the representative of the appellant stressed his proposal if the Decree was not repealed as a whole in order to repeal Section 3 of the Decree separately.
36. In the course of the oral hearing, Vice-President Eliška Wagner also asked the question whether Paragraph 3 constituted the only difference between the two decrees. The appellant's representative stated that it did not and that the difference is in the annexes to the decrees which contain a different adjustment to the duration of the contractual relationship. Furthermore, Vice-President Eliška Wagner added a question as to whether health insurance companies have specific criteria according to which they decide to conclude a contract with a particular doctor. The representative of the appellant referred to the provisions of Act No. 48 / 1997 Coll., which lay down framework criteria and selection procedures, but whose results are not binding on health insurance companies. In order to ask whether insurance undertakings comply with them in practice, the applicant's representative referred to a specific case of 2006, when this did not happen, but in other cases they respect them. The representative of the Ministry said that this issue relates to Act No. 48 / 1997 Coll., not to the now discussed decree. To ask President Pavel Rychetski why the Ministry changed the system of contracts from an indefinite period of time, the representative of the Ministry added that it was about securing certain control mechanisms for insurance companies and rational measures within cycles that are repeated in the health system. In order to clarify Vice-President Wagner's political consideration, the representative of the Ministry stated that, as far as he knows, he did not. The question of Judge Jiří Nykoda, in which segments an agreement was reached on the content of the framework agreements, was made by the Ministry's representative that in all.
37. In his final presentation, the Ministry's representative stated that the present Decree was adopted in the ordinary legislative process on the basis of the results of the conciliation procedure. Among other things, it considers the previous Decree No 290 / 2006 Coll. to be adopted in breach of the legislative rules of the Government, as there were contradictions expressed by two working commissions of the Legislative Council of the Government. He proposed to the Constitutional Court to reject the application for annulment.
Relationship to design sp. zn. Pl. ÚS 52 / 06
38. Before the actual factual examination of the proposal, the Constitutional Court considers it appropriate to recall the substance of the proposal sp. zn. Pl. ÚS 52 / 06 on the annulment of Decree No 290 / 2006 Coll., since this proposal is materially related to the present case and is based largely on the same factual basis. In the present case, the appellant and the Ministry present a mirrored argument against the proceedings of Pl. ÚS 52 / 06. In essence, the current appellant has taken over the Ministry's legal conclusions from the proceedings of the "Pl. ÚS 52 / 06 'and the Ministry is now (among other things) presenting the objections of the group of senators from the" Pl. ÚS 52 / 06' proceedings.
39. The reason for the annulment of Decree No 290 / 2006 Coll. was the lack of legal authorisation. In the opinion of the then appellant, the Ministry issued Decree No 290 / 2006 Coll. at the time when the conciliation procedure initiated on 3 January 2006 had not yet been completed and the six-month period foreseen by the provisions of § 17 (3) of Law No 48 / 1997 Coll. has not yet expired for the Ministry to "make a decision '.
40. After the issue now contested Decree No. 618 / 2006 Coll. The Constitutional Court, pursuant to § 67 (1) of the Law on the Constitutional Court of Procedure sp. zn. Pl. ÚS 52 / 06 on 16 January 2007, suspended by order (ref.
Substantial assessment
41. According to Article 68 (2) of the Law on the Constitutional Court, it is the task of the Constitutional Court to examine the content of another law in respect of its compliance with constitutional laws and with laws and to determine whether it has been adopted and issued within the limits of the Constitution laid down by competence and by the constitutional procedure. In the present case, the appellant submits, in principle, two groups of objections, one of which is aimed at a lack of constitutional authority and the other a lack of the Ministry's legal competence to issue the contested decree.
42. In the present case, the objections coincide with the sequence of steps of the established review algorithm, on the basis of which the Constitutional Court first examines the procedure and conditions for the issue of the contested legislation and subsequently the content compliance with the Constitution and the laws.
Power to issue an order pursuant to Article 79 (3) in the light of Article 62 (d) of the Constitution
43. The Constitutional Court, in its previous case-law [the finding of 9 October 2003 sp. zn. IV. ÚS 150 / 01 (N 117 / 31 SbNU 57); the finding of 20 October 2004 sp. zl. ÚS 52 / 03 (N 152 / 35 SbNU 117; 568 / 2004 Coll.)] interpreted the conceptual difference between the powers and competences of the public authority. In the later findings, he stated that "[p] the power of a State authority should be understood to be the actual realisation of State power in the appropriate form (i.e. in the form of standard-making or individual-decision), whereas competences are already a very specific definition of issues in the exercise of powers. At this point of view, Article 79 (3) of the Constitution should be interpreted as meaning that the powers of ministries and other administrative bodies, or local authorities, to issue derived secondary legislation are already established by Article 79 (3) of the Constitution. It is a legal standard which, on a general basis, establishes the powers of the executive bodies to establish secondary legal standards, provided that the exercise of that power is specified in the law in relation to a particular competence (a certain legally defined part of the exercise of State authority). In other words, the power of the executive to issue substatutory legal standards is based directly in the Constitution, not in the regulation of the law. A legal authorisation which complies with the requirements laid down in Article 79 (3) of the Constitution shall then be the fulfilment of that power in terms of scope and content (competence). ';
44. The Constitutional Court also specified the following considerations: "The reason for establishing this power directly in the Constitution is the fact that it is a key question of sharing power between legislative and executive powers in the field of normative. Article 79 (3) Thus, on the one hand, the Constitution creates the power of the executive to derive standards and, in fact, sets its limits in relation to legislative power, on the other hand, it must be seen as also providing the protection of power to the legislature against unconstitutional intervention. As a result, if the legislature's legislative powers were to be constituted only by law, it would be directly available to the legislator, thereby allowing the legislator to intervene in itself in the powers of the executive authorities, for example by fully withdrawing such powers." Even the later case law of the Constitutional Court in the application for annulment of another law is based on the proposed concept (see, for example, the finding of 16 December 2008 sp. zn. Pl. ÚS 28 / 06, publ. under No 69 / 2009 Coll.; the finding of 26 May 2009 sp. zn. ÚS 40 / 08, publ. under No 241 / 2009 Coll.).
45. In any of these cases, the Constitutional Court was not confronted by the question of the interpretation of Article 62 (d) of the Constitution in relation to the standard competence of the Executive Board and formulated its conclusions in relation to the acts of the Executive Board from other constitutional aspects (see Articles 1, 2 (3) of the Constitution, Article 2 (2) of the Charter, protection of fundamental rights, etc.). Article 62 (d) of the Constitution provides that the President of the Republic... entrusts the Government whose resignation has been accepted or withdrawn to perform its functions provisionally pending the appointment of a new Government (Constitutional Court itemised). The appellant, from the interpretation of the concept of "provisionally" in the context of "parliamentary principles," rightly identifies constitutional restrictions on a government which does not enjoy the trust of the Chamber of Deputies or restrictions on ministries governed by the members of such a government.
46. First of all, the Constitutional Court considers it necessary to distinguish between the extent to which the appellant's objections relate to the legislative activities of the Government (Article 78 of the Constitution) and to the extent to which the legislative activities of the ministries (Article 79 (3) of the Constitution), as the appellant itself does not reflect this disassembly further. Indeed, the government and ministries are substantially different - with regard to the constitutional regulation of the power to legislate -.
47. While the government is in Article 78 The Constitution is empowered to issue regulations for the implementation of the Act and within its limits, but without requiring express legal authorisation for such an act, ministries and other administrative authorities may do so under Article 79 (3) of the Constitution on the basis of the law, within its limits and only if they are empowered by the law.
48. In this regard, the Constitutional Court therefore consistently distinguishes the position of the Government, on the one hand, and of the ministries, on the other hand, although both institutions are drawing the power to adopt implementing measures directly from the Constitution. At the same time, the Constitutional Court points out that the subject of the assessment in this case is not primarily a question of general (negative or positive) determination of the powers of a government that rules (until now or already) without the trust of the Chamber of Deputies.
49. The Constitutional Court refers only to the position of the Government in this case in the light of the applicant's specific objections. First of all, it is clear that such a restriction on normomaking does not result from the explicit text of the Constitution, not even in relation to the Government, nor in relation to the Ministry and other administrative offices. The Institute of Delegation of Government 'in the resignation' of the provisional performance of its functions under Article 62 (1) of the Treaty. (d) The Constitution is based on the concept of the need for a permanent exercise of executive powers, where it is not desirable in a legal State that any power in a State should not be exercised by its senior body for a certain period of time.
50. The concept of a pre-limited power of the Interim Government, typically by excluding certain acts from its competence, carries the risk that rigid - or, in establishing limits of relative (or indeterminate) uncertainty - will make the limits of such a limitation more difficult for the entire executive power to function properly, both in the performance of day-to-day tasks and in the performance of international obligations, including those arising from membership of the European Union and other international organisations. This hazard becomes significant in cases where the appointment of the Interim Government occurs more frequently or where such temporary authority is forced to operate for a longer period of time.
51. On the other hand, the opposite arguments, which are based primarily on the practical importance of the government's responsibility to the Chamber of Deputies (Article 68 (1) of the Constitution), manifested, inter alia, in the Institute of Confidence (Article 68 (3) of the Constitution). It is clear that, in relation to the House of Deputies' government with full confidence, the government is in a different position in terms of legitimacy and political authority, following a lack of confidence (Article 68 (3) of the Constitution), as well as a government which was subsequently misplaced (Article 72 (1) of the Constitution). In both of these situations, governments are not fully responsible for constitutional matters and are no longer subject to the main penalty of the Chamber of Deputies, which is precisely (another) a declaration of mistrust. Therefore, one of the main tools of the braking system and of the counterweights, which ensure a balanced relationship between the powers and their mutual control, is not applicable. The political mandate of the government is also called into question, as in neither of the above cases can be reliably talked about the reflection of the political interests of most voters (on the ground floor of the distribution of political forces in the Chamber of Deputies). Finally, it is also possible to argue with concerns about the purposeful steps of the provisional government, which could lead to an extension of their own existence in the misuse of powers.
52. For futuro, the Constitutional Court notes, however, that this is a conclusion, in particular, in response to the appellant's wider objections, that the above-mentioned general considerations concerning the position of the provisional government itself are necessarily a constitutional restrictive factor, which must demonstrate a restrictive approach to the exercise of both the powers to issue regulations under Article 78 of the Constitution and in other acts of government, in particular if they bear fundamental and irreversible consequences.
53. However, the specific and universally applicable limits resulting from mandates under Article 62 (d) of the Constitution (more precisely from their relationship with the Chamber of Deputies) cannot be definitively established on the basis of abstract (up to speculative) considerations, but only taking into account the current circumstances of the case presented to the Constitutional Court in the future and the specific relations between executive and legislative powers. The Constitutional Court's conclusions will therefore always have to respond to the diversity (unpredictability) of the legal or legal acts of the executive bodies.
54. In this context, the Constitutional Court cannot forget that the nature of executive acts, of course the self-control of any state power is desirable, is also given by a variable degree of legal and political culture in the state and the whole of society, which may be manifested, for example, in the eventuality of political self-restraint of government, which will take into account the political distribution of forces and its effective legitimacy. After all, even a government with the full confidence of the Chamber of Deputies cannot use its power to issue regulations in any way, but only in the intentions of the implementing law or Constitution. Nor is the authorisation of the Ministry under Article 79 (3) The Constitution must not be misused for objectives other than those foreseen by the Constitution and the law, particularly in constitutional terms, for any normative competition between executive and legislative powers, in practical terms for political struggle.
55. Constitutional practices will also play an important role in assessing legitimacy and limits of constitutional authority in a particular case. In any event, only a long-term practice of constitutional procedure, which is consistent with the value and institutional consensus of the constitutional authorities and repeatedly confirms a certain interpretation of the provisions of the Constitution, can be regarded as a constitutional practice that could be measured by the actions of the provisional government. However, the facts presented to the Constitutional Court are not sufficiently specific.
56. The fact that relations between the Interim Government and the Chamber of Deputies are controlled by sufficiently specifically articulated constitutional practices does not indicate a historical attempt by the Czech legislator to impose specific restrictions on the government and members of the government managed by the Ministry. However, the relevant draft amendment to the Constitution, including the addition of Article 75 thereof, according to which such a government could "only take measures that cannot be delayed ', was not adopted (Parliament's Document No 359 of 1999; draft approved by the Chamber of Deputies on 28 January 2000, rejected by the Senate on 29 March 2001).
57. Despite the above finding that there are constitutionally restrictive factors in relation to the government, provisionally mandated pursuant to Article 62 (1) of the Treaty. (d) The Constitution is not the solution to the government crisis by transferring the political control of the provisional executive to the Constitutional Court, whose powers, inter alia, in relation to the review of the standard of execution, or, where appropriate, in relation to the scope of the powers of state bodies, are defined in a taxa in the Constitution. The regime of the Interim Government places responsibility primarily on the Chamber of Deputies itself, which thus gives (time) room to create a sufficient political majority to express confidence in the new stable government. The exercise of the parliamentary mandate is not in any way available to Members or political parties, but must be directed towards the fulfilment of the Constitution or its envisaged procedures. In a similar context, the Constitutional Court refers to the "constitutional pressure on the combination of the expression of mistrust (or denial of confidence) to the Government, with the knowledge of constitutional consequences in the absence of a new parliamentary majority capable of creating a government '(the finding of 10 September 2009 sp. zn.
58. Neither shall the President in accordance with Article 62 (1). (d) The Constitution is without prejudice - it cannot be omitted - to the remaining control mechanisms by which the Minister from the Constitution is subject. "The Minister responsible for the constitutional political responsibility for the activities of the Ministry shall be the minister responsible, who shall be controlled in this respect by the usual means of parliamentary democracy, such as interpolation (Article 53 (1), (2) of the Constitution), the right of citation of the Chamber of Deputies and its bodies or the Commission of Inquiry (Article 30, Article 38 (2) of the Constitution). Another control mechanism, which monitors the activity and calls for constitutional responsibility by the Minister, is the possibility of withdrawing it from office. Article 74 The Constitution is the responsibility of the Prime Minister (motion to appeal the Minister) and the President of the Republic (appeal itself)," as already stated by the Constitutional Court in the decision of 13 September 1994 sp. zl. ÚS 9 / 94 (N 40 / 2 SbNU 7; 207 / 1994 Coll.).
59. In particular, in relation to the legislative powers of the Ministry managed by the Minister, who is a member of the Government entrusted under Article 62 (d) of the Constitution, the Constitutional Court further notes that the construction of the provision of Article 79 (3) of the Constitution, which has a purpose other than the general authorisation of the Government pursuant to Article 78 of the Constitution, and the nature of the legal authorisation standard (Part VIII / b of the finding) is a decisive aspect of the assessment of the case.
60. In the context currently under consideration, it is not possible to ignore the following characteristics of the sublegal norm of the creation of central government bodies, which in itself already acts as a restriction in relation to authorisation:
(a) The existence or absence of such authorisation shall always be available to the legislator through the conditions of legal authorisation (Article 79 (3) of the Constitution). In this respect - with respect for balancing the relations between executive and legislative powers - there is no urgent need to impose specific constitutional restrictions on the Ministry or any other administrative authority for their substatutory constitutional norm, when the decision on the existence or absence of specific powers always depends on the will of the legislator. It is only Parliament that finds the necessity, or the appropriateness, of issuing a statutory regulation for the proper implementation of the law on a particular matter. The admission or, where appropriate, the withdrawal of such authorisation does not pursue objectives other than the proper implementation of the law, which is essentially independent of constitutional (political) relations between Parliament and the Government. The legal authorisation according to its specific wording contains, more or less in practice, the obligation of the authorised authority to issue an implementing act (Part VIII / b of the finding) in order to enable the law to produce the intended effects.
b) The law-defined speciality of such normomaking is evidenced by the different functional concepts [cf. also by the partial definition of the competence of ministries as opposed to the "management, control and unifying" role of the government under Act No. 2 / 1969 Coll., on the establishment of ministries and other central bodies of the state administration of the Czech Republic, as amended, (hereinafter referred to as the "competent law"). While respecting the division of power (restrictive interpretation of legal authorisation) and the principle of legal certainty, the power to issue legislation is so precise and concrete as to its extent, content and purpose that the Ministry or other administrative body cannot deviate from the legal limits and thus apply, for example, its own legal (political) will to defiance of Parliament. Such a requirement for legal authorisation to define as precisely as possible the content, purpose and scope of the adjustment can be derived from the principle of predictability of the law based on Article 1 (1) of the Constitution [cf., e.g. the finding of 12 March 2008 sp. zn. Failure to respect one of the three elements of the empowerment standard leads to a conclusion on a lack of legal authorisation to issue an implementing regulation.
c) The ministries and other administrative offices have no direct link - unlike the government - to the political will (trust) of the Chamber of Deputies. The Minister is accountable to the government, to the Chamber of Deputies only through mediation. For the fundamentally different position of the Government, on the one hand, and of the ministries and other administrative offices, on the other hand, on the subject of the sublegal norm, the system of the Constitution, or the inclusion of ministries in relation to the constitutional mandate in Article 79 (3) of the Constitution, is also demonstrated by the same level as the "other administrative authorities'. If the existence of a government crisis followed by the President's action pursuant to Article 62 (1) of the Treaty were to occur. (d) The Constitution was intended to constitute a constitutional restriction of the legislative power provided for in Article 79 (3) of the Constitution, from which the constitutional basis of its powers is drawn up by the abovementioned authorities, such restrictions would (hypothetically) have to affect all those authorities which are in a position identical in terms of empowerment. Under the same (constitutional) conditions as the ministries, the" other administrative bodies' and "central administrative bodies' (§ 2 (1) of the competent law) are also subject to the statutory rules. The appointment of the President of such an office shall be made by the President, on a proposal from the Government (Czech Statistical Office, the Office for the Protection of Competition) or by the Government itself (§ 2 (3) of the Competent Act) without any further interference of the Chamber of Deputies. Nor is the normative power of these central government bodies at ministerial level conditional on the existence of a government that has gained the trust of the Chamber of Deputies under Article 68 (3) of the Constitution. This, of course, while maintaining the standard restrictions that are imposed on substatutory normative production.
61. From the above, the Constitutional Court concludes that the constitutional power of the Ministry to legislate under Article 79 (3) The Constitution is not specifically limited to the extent and content of ex constitutione, in a situation where the Ministry is managed by a minister who is a member of the Government in charge of the performance of his duties under Article 62 (d) of the Constitution. However, for the assessment of each individual case (normative act), the general requirements for delegated standards shall always apply consistently, which shall only be within the strictly interpreted limits of content, scope and, in particular, the purpose of the empowerment standard. In accordance with this procedure, legislative acts of the Ministry may be excluded which pursue a purpose other than the proper implementation of the law and include, for example, content (political) which would be contrary to the constitutional purpose of the prior non-disclosure of trust (Article 68 (3) of the Constitution) or the expression of distrust (Article 72 (1) of the Constitution) of such a provisionally appointed government. This will also be reflected in the reference points in the possible proceedings before the Constitutional Court, whose case-law can undoubtedly in future contribute to the limitation of provisionally mandated governments in specific cases.
Legal authorisation under the provisions of § 17 paragraph 3 of Act No. 48 / 1997 Coll.
62. The second heading of the appellant's objections concerns the alleged absence of legal authorisation on the part of the Ministry or exceeding the authorisation under the provisions of § 17 (3) of Act No 48 / 1997 Coll.
63. In its case-law, the Constitutional Court consistently confirms that the implementing act is Article 79 (3) The Constitution is only linked to such detailed arrangements as are "on the basis and within the limits of the law '[cf. the finding of 11 October 1995 sp. zn. In the opinion of the Constitutional Court, the draft Constitution also states that the legislature does not, in the form of ordinary laws (in Article 79 (3) of the Constitution), establish the power to entrust it with the possibility of executive powers in a specific case. This competence (in the sense of the substantive definition of issues implemented in the exercise of powers process) is then required by a specific executive body to implement it on the basis and within the limits of the law which empowered it to establish a secondary legal standard.
64. In relation to the review of the constitutional conformity of the derived standard of execution on the basis of legal authorisation, the Constitutional Court has also defined the practical aspects of the review [cf. the finding of 14 February 2001 sp. zn. Pl. ÚS 45 / 2000 (N 30 / 21 SbNU 261; 96 / 2001 Coll.); the finding of 16 October 2001 sp. zn. Pl. ÚS 5 / 01 (N 149 / 24 SbNU 79; 410 / 2001 Coll.]:
■ the Regulation must be issued by an authorised body,
■ the regulation cannot interfere with matters reserved for the law,
■ the legislator's will to regulate above the legal standard must be clear (therefore, the scope for the regulation).
65. In the first two points mentioned, the appellant does not dispute Decree No 618 / 2006 Coll. but contends that the conditions of legal authorisation for the issue of a statutory law ("clear will of the legislator" according to the above terminology) have not been fulfilled.
66. The text of the empowerment provision § 17 (3) of Act No. 48 / 1997 Coll. is as follows:
[...]
(3) The contract referred to in paragraph 1 between a health insurance undertaking and a healthcare establishment shall be governed by a framework contract resulting from a conciliation procedure between representatives of the associations of health insurance undertakings and representatives of the relevant group contractual health establishments represented by their interest associations. Individual framework contracts shall be submitted to the Ministry of Health, which shall assess them in terms of compliance with legislation and public interest in ensuring the quality and availability of health care, the functioning of the health system and its stability within the financial possibilities of the public health insurance scheme (hereinafter referred to as the "public interest ') and shall then be issued as a decree. If a new contract is not concluded before the end of the contract, the contract shall be renewed until the new framework contract is concluded. Where there is no agreement between the parties to the conciliation procedure on the content of the framework agreement within six months or where the framework agreement submitted contravenes legislation or public interest, the Ministry of Health shall be entitled to take a decision. The framework agreement shall always contain a provision concerning the period of effectiveness, the manner and the reason for the termination of the contract referred to in paragraph 1, with a minimum notice period of six months being available on 1 January of the following year. This period of notice shall not apply in cases where, as a result of serious circumstances, a further performance of the contract cannot reasonably be expected. In addition, the framework contract shall include the arrangements for the payment of the medical care provided, the rights and obligations of the parties to the contract referred to in paragraph 1, unless they are provided for by law, the general conditions of quality and effectiveness of the provision of health care, the conditions necessary for the performance of the contract referred to in paragraph 1, the control mechanism of the quality of care provided and the accuracy of the amounts charged, as well as the obligation to communicate to each other the data necessary to check the performance of the health provision contract, the manner and reasons for the termination of the contract referred to in paragraph 1, the provisions on arbitration.
[...] '.
67. Thus, it follows that the Ministry is empowered by law to act in two cases:
(1) if the conciliation is the result of a framework agreement, it shall assess this in the light of its compliance with the legislation and public interest in ensuring the quality and availability of health care, the functioning of the health system and its stability within the financial possibilities of the public health insurance system and subsequently declare it a decree; or
(2) where there is no agreement between the parties to the conciliation procedure on the content of the framework contract within six months, or where the framework contract submitted contravenes legislation or public interest, it shall be entitled to "make a decision."
68. The central principle of that authorisation is that the Constitutional Court sees in the legislature the priority of the agreement to be the result of the conciliation procedure. The purpose of the conciliation procedure is to reach an agreement by common procedure on the content of the framework agreements, not to use up the six-month period in vain, thereby allowing further action by the Ministry, whose direct authorisation only starts in a subsidiary manner. In view of this preferred purpose, it is necessary to interpret other terms and conditions of the conciliation procedure or to interpret the empowerment standard itself. Contrary to this priority, for example, it would be such as to establish the conditions for the conduct of the conciliation procedure that would make it objectively and realistically impossible to reach any legally foreseen consensus (e.g. by establishing the unsatisfactory procedural rules of the conciliation procedure, the unconditional requirement of unanimity of all and, for example, procedural votes, etc.).
69. In the present case, the Ministry is based on the fulfilment of the conditions under (1), while the appellant argues that there was no appropriate conciliation procedure before the issue of the contested Decree No 618 / 2006 Coll. was issued, so there is no outcome in the form of a framework agreement, since the only conciliation procedure prior to the issue of the contested order ended with the expiry of a period of six months.
70. On that question, the Constitutional Court first notes that, in this case, the appellant, having regard to the nature of his objections, is faced with contradictory factual arguments which are based in the contested opening and conduct of the conciliation procedure pursuant to § 17 (3) of Act No 48 / 1997 Coll. In the light of the appellant's objections, in relation to the determination of the fulfilment of the conditions of § 17 (3) of Law No 48 / 1997 Coll., only the examination of whether the framework agreements submitted were "the result of the conciliation procedure 'and whether the" outcome of the conciliation procedure' was submitted to the Ministry within a legal period of six months. These facts appear to be key to the appellant's argument. Only if these conditions are met is the authorisation clause "activated" for the benefit of the Ministry, which will then be assessed in terms of content (according to the criteria set out in § 17 (3) of Act No. 48 / 1997 Coll.) and (without its own content changes) will prepare for publication.
71. A number of materials have been submitted to the Constitutional Court to document in fact the progress of the conciliation procedure which the Constitutional Court has examined to the extent necessary to determine whether the condition for the issue by the Ministry of Finance of a subordinate provision has been met (conditional authorisation). First of all, in relation to the present case, it is clear that it is clear from the "minutes of the opening day of the joint negotiations of the parties to the Conciliation Procedure 'of 3 January 2006 that the Czech Republic's CAP was the initiator of the conciliation procedure, with the majority of the representatives of health insurance companies and health care providers clearly expressing their belief that this is the first round of negotiations in the conciliation procedure. The objection of some of the participants to the hearing that the first" in the outpatient specialised care and practitioners' segment had already taken place on 6 December 2005 was raised at the hearing, but most of them were not accepted as they thought it would be a preparatory meeting. The participants' good faith in the regularity of the conciliation procedure in which they are involved and the common procedure objectively leading to the fulfilment of the intended purpose of the conciliation procedure are also evident from the minutes of the other meetings, including the final negotiations (17 January 2006, 28 February 2006, 21 June 2006). In addition, the Constitutional Court notes that other issues in question, such as whether the parties to the conciliation procedure can establish rules of procedure or whether the approval of the proposals is possible by majority or only unanimously (consensus vote). On these internal issues of the organisation of conciliation proceedings, the Constitutional Court does not intend to express itself, at least as long as the legislature's intended substance of the conciliation procedure, which neither the creation of the Rules of Procedure nor (in some votes) the principle of majority approval (or in the rational determination of a certain vote) is maintained. These principles are undoubtedly reflected in many other provisions across Czech law, including rules of procedure and negotiations.
72. That conclusion on the opening of the conciliation procedure on 3 January 2006 is further supported by other documents, in particular the steps that led to the invitation of participants to 3 January 2006 (one of them is the invitation addressed to the Ministry and the advertisement published in the Economic Paper). Also at the "negotiation 'itself, which took place on 6 December 2005, the majority of the participants agreed that the conciliation procedure was not initiated for specific reasons. This view, as follows from the relevant minutes, was expressed by" PMI of the Czech Republic, Open Association of Health Insurance Companies of the Czech Republic, SPL of the Czech Republic, SPLDD of the Czech Republic, APRIMED, PRIVALAB. "The opposite view, namely that the conciliation procedure was properly initiated, was only held by" LOK SČL, ČLK - o. s.'. A similar conclusion is drawn from the minutes of 6 December 2005 taken at the hearing "for medical establishments providing outpatient specialised care and care for female doctors'. From those entries in the summary, the Constitutional Court concluded that, at the hearing on 6 December 2005, these negotiations were already considered by a majority to be non-standard," initiation ', and thus not proper (opening) conciliation negotiations, explicitly including by reference to concerns about calling into question the "ordinary legislative procedure'.
73. In addition, the Constitutional Court states that even if (hypothetically) the majority of the parties to the conciliation procedure had come to a subjective conclusion that the conciliation procedure had already been initiated on 6 December 2005, such a procedure would not have been in conformity - meaning the subsequent procedure of the Ministry, which issued Decree No. 290 / 2006 Coll. - objectively meaning the empowerment provision of Paragraph 17 (3) of the fourth Act No. 48 / 1997 Coll., since the legislature clearly presupposes the equal position of all the parties to the conciliation procedure and thus the possibility of their participation in the conciliation procedure over a maximum of six months. Such an interpretation of the conditions for initiating the conciliation procedure, which would trigger the running of the procedure and hence the six-month period only by an act of one segment of health care providers (i.e. a mere formal act of "calling 'the conciliation procedure without being accompanied by the appropriate content), would create an inequality between individual providers, since, as would have been the case in this case, the other participants in the conciliation procedure would have had to be shortened by almost one month to reach an agreement, but theoretically by any period of time (since, in short, the other" segments' would have been introduced into the procedure only during the procedure). Such a concept does not support the legal construction of the priority of the agreement of the participants, as unpredictable factual manipulation of the length of the conciliation procedure can undoubtedly affect the conduct of the whole conciliation procedure, including the risk that, under greater time pressure, the legally foreseen result will not be achieved at all.
74. In this procedure, it is no longer for the Constitutional Court to assess the procedure of the Ministry, which already issued Decree No 290 / 2006 Coll. However, it cannot overlook that, prior to its publication, the Ministry had (among other things) negative opinions at the disposal of the two working committees of the Legislative Council of the Government, which drew attention to the "termination of conciliation '. It should (could and should) also have continuous information on the development of the procedure and on the very majority opinion of the parties to the conciliation procedure. The Constitutional Court recalls, on the other hand, its conclusions set out in Article 78 of the Constitution and the specific provisions of Article 17 (5) of Act No 48 / 1997 Coll. (in the version of the Act No. 135; 167 / 2000 Coll.), in which it dealt with the dispute between the content of the General Authorization of the Government in Article 78 of the Constitution and the specific provisions of Article 17 (5) of the Act No. 48 / 1997 Coll. (in so far as it is effective) on the value and the amount of the medical care paid by health insurance.
75. The Ministry of the Ministry sent a communication from the President of the CAP of 30 June 2006, in particular from the post office of the Ministry, also indicated that the outcome of the conciliation procedure was submitted to the Ministry on 30 June 2006 within six months of the opening of the conciliation procedure (3 January 2006), or in relation to the framework agreement on pharmacy health care already on 5 June 2006, the last day of the period for which the number of months fell to 3 July 2006. The date of the relevant protocols on the outcome of the conciliation procedure (between 1 June and 29 June 2006) logically precedes the date of their delivery to the Ministry. Therefore, the condition for submitting the outcome of the conciliation procedure to the Ministry within six months was fulfilled.
76. Before issuing the contested Decree No 618 / 2006 Coll. the Ministry therefore had at least six months' notice of the outcome of the conciliation procedure initiated on 3 January 2006, including the related protocols and the resulting text of the framework agreements, from the corresponding entries resulting from the information on the conduct of the conciliation procedure, including the date of its initiation, and from the opinions of the Administrative Commission of the Government on the draft Decree No 290 / 2006 Coll., and from the draft (future) Decree No 618 / 2006 Coll. These facts (among others) were assessed by the Ministry in relation to the fulfilment of the conditions laid down by the authorisation provision. The conclusion that the conciliation procedure ended in agreement with the text of the framework agreements submitted to the Ministry is completely adhered to and therefore the Constitutional Court does not change anything.
77. From the text of the law and the purpose of the conciliation procedure itself, which is not designed in any way as an optional institute, the Constitutional Court concludes that the authorised authority, subject to other statutory conditions, is obliged to respect the outcome of the conciliation procedure. It can also be concluded from the assumption of a rational and economic legislator that a relatively complex conciliation institute, which would take place for several months, will not be inserted into the authorisation standard (§ 17 (3) sentence of the second Act No. 48 / 1997 Coll.) in a self-purposely, in such a way that the Ministry (now and despite the text of the standard) would have the possibility of considering whether or not it would use the authorisation to issue agreed framework contracts in the decree. The theoretical possibility of this consideration would only make the conciliation procedure an advisory institute and wipe out the differences between the two empowerment standards reflected in the procedures under (1) and (2) above.
78. The legislative technique of empowerment standards undoubtedly allows the legislator to clearly state whether the standard contains an obligation or merely the possibility of issuing a delegated implementing regulation ["The competition rule determines (...) whether the authorised body has an obligation to issue normative acts or whether it is only permitted to do so" - see Weinberger, O. Norma and institutions. Introduction to the theory of law. Masaryk University, Brno, 1995, p. 77.]. In addition, the Constitutional Court points out the above considerations and the mandatory character of the provisions of § 17 (3) of the second Act No. 48 / 1997 Coll., according to which the Ministry will issue individual framework contracts "[...] as a decree."
79. The Constitutional Court notes that, in this situation, the Ministry of Justice, from the limits of the empowerment provision of § 17 (3) of Act No. 48 / 1997 Coll. did not deviate if the framework agreements which were submitted within the legal period as a result of a properly completed conciliation procedure, with regard to the legal priority of such procedure, issued as Decree No. 618 / 2006 Coll. In particular, this procedure is directly foreseen by the empowerment provision, and even if the other criteria laid down in Section 17 (3) of Act No 48 / 1997 Coll., are fulfilled, this provision does not give the Ministry the possibility of further discretion (a cogent imperative standard), even if the Ministry is managed by a minister who is a member of the government appointed by the President pursuant to Article 62 (d) of the Constitution.
Other objections by the applicant
80. Further objections by the appellant to the conciliation procedure are not considered relevant by the Constitutional Court, including the claim that the LOK-SČL and the CLK, o. s. were not invited to the final hearing. Even if such a formal error were to be established, this does not change the fact that the representatives of these bodies were present at the final hearing, as is apparent from the relevant minutes and attendance forms, as the Ministry also points out.
81. In response to the implicit objection of the appellants, calling into question the separate annulment of the previous Decree by the provisions of § 2 of Decree No 618 / 2006 Coll., the Constitutional Court states that, by concluding the conciliation procedure and submitting the individual framework agreements to the Ministry, Decree No 290 / 2006 Coll. (now notwithstanding the lack of legal authorisation for its publication) and the "material presumption of its existence" (cf. one of the notable ideas of the finding of 20 October 2004 sp. sp. zl. ÚS 52 / 03 - see above). In this case, it is legally logical and proportionate to the principle of protecting legal certainty that the former legislation is derogated by a new (equal) regulation.
82. In his final remarks, the appellant's lawyer reiterated the alternative petit - the proposal for the annulment of Paragraph 3 of the contested decree - with the argument that it is a provision that, with retroactive effects, the health care provider is obliged to change contracts already concluded for an indefinite period of time (usually for eight years) and thus unacceptably interferes with contractual autonomy. However, it follows from the annexes to the contested decree that, although the newly agreed framework agreements contain, in relation to all segments of the providers of such care, arrangements for the negotiation of fixed-term contracts but always with the phrase "unless otherwise agreed by the Contracting Parties'. The Constitutional Court notes that, in this form, it is not such an intervention in contracts already concluded and contractual freedom as would require the deregation of the Constitutional Court. The issue of equality between the parties and their contractual freedom in the present case is much more closely influenced by the de facto unequal relationship between health insurance companies on the one hand and health care providers on the other, but which is not feasible at the level of a statutory standard such as the contested decree. In addition, the Constitutional Court points out, in particular, the inspecificity of such an objection in relation to the alleged" interference with acquired rights'. In addition, it can be noted that the Ministry also states in its observations that the provisions of Section 3 of Decree No 618 / 2006 Coll. "cannot be understood to interfere in the good faith of acquired rights. '
83. In this context, it can first of all be pointed out that the Constitutional Court has consistently held that the question of the protection of acquired rights and the retroactive application of the rule of law has been repeatedly addressed in its decision-making practice. In a number of its findings, he stressed that the rule of law is inseparably related to the principle of legal certainty and the protection of citizens' trust in law, which includes the prohibition of the retroactivity of legal standards or their retroactive interpretation [cf., for example, the finding of sp. zn. IV. ÚS 215 / 94 of 8.6.1995 (N 30 / 3 SbNU 227); the finding of sp. zn. Pl. ÚS 33 / 01 of 12.3.2002 (N 28 / 25 SbNU 215; 145 / 2002 Sb.) and others]. The Constitutional Court also stated the conflict of old and new legislation in the opinion of the Constitutional Court, for example, on the basis of the sp. zn. Pl. ÚS 21 / 96, in which it submitted the principle of retroactivity of the legal standards of analysis and expressed the view that, in general, false retroactivity applies in this case, i.e. from the effectiveness of the new legal standard even legal relations arising under the repealed legal standard are governed by the new legal standard. The emergence of legal relationships existing before the entry into force of the new legal standard, the legal requirements arising from such relationships, as well as the legal acts carried out, is governed by the repealed legal standard (the result of the opposite interpretation of the conflict of laws would be genuine retroactivity). The Constitutional Court persists in the view that, in terms of legal certainty, false retroactivity is acceptable.
84. For the application of later legislation, it is always necessary to adopt an interpretation which saves the meaning and substance of the basic law. It is, where appropriate, for the general courts to adopt, when assessing possible disputes, an interpretation respecting the constitutional protection already established [cf., e.g. the finding of 15 December 2004 sp. zn. I. ÚS 344 / 04 (N 191 / 35 CollNU 497)]. If the appellant refers to the principle of the protection of acquired rights, the Constitutional Court therefore refers to any individual litigation before the general courts, since these claims cannot be decided in the proceedings before the Constitutional Court (that is to say, as in the case sp. zn. Pl. ÚS 52 / 03).
85. Paragraph 3 of Decree No 618 / 2006 Coll. - using the interpretation methods outlined above - thus does not imply that it should produce unacceptable retroactive effects into the rights actually acquired, or that this interpretation is held by the Ministry itself. The principle of the protection of rights already acquired does not include the element of the absolute continuity of the related legislation in the future. To that effect, the Constitutional Court, for the purposes of the framework agreements under Law No 48 / 1997 Coll. also notes that the nature of this institute is not to exercise the autonomy of the parties' will (contractual freedom). The legal obligation to respect the framework agreements resulting from the conciliation procedure and duly declared above all does not result from the contested provision of § 3 of Decree No. 618 / 2006 Coll., but directly from Act No. 48 / 1997 Coll., first sentence of Paragraph 17 (3) ("The contract concluded in accordance with paragraph 1 between the health insurance undertaking and the health establishment is governed by the framework contract ').
86. As regards the broader argument put forward by the appellant's representative at the oral hearing in relation to the provisions of § 3 of Decree No 618 / 2006 Coll., the Constitutional Court states that, by its substance, it passes with the petition and limits of the review carried out by the Constitutional Court in this proceedings. The subject of the assessment of the Constitutional Court was not, above all, the overall concept of the relationship between health establishments and health insurance companies (i.e. a number of institutes in Act No. 48 / 1997 Coll.) or the construction of tenders for the creation of a network of health establishments through individual contracts with individual health institutions (§ 46 to 52 of Act No. 48 / 1997 Coll.), although this process, prior to the creation of a contractual relationship, is considered problematic by the appellant. In this context, it is not even the subject of the Constitutional Court's reasoning whether the existence of a five-year or eight-year contractual relationship, or an indefinite contractual period, has any constitutional legal relevance whatsoever. More precisely, it was not even claimed by the appellant that a certain duration of the contractual relationship would be guaranteed by constitutional certainty. On the other hand, the variability in this aspect directly presupposes the authorisation provision § 17 (3) of the fifth sentence of Act No 48 / 1997 Coll., which states, inter alia, that "[r] amic agreement always contains a clause concerning the period of effectiveness... ', thus, in the present version it does not in any event contain a legal requirement that framework agreements be concluded for an indefinite period. If, in the first half of 2006, the Ministry has come to its own (political) consideration before the end of the conciliation procedure, that the duration of individual contracts should not be limited in time for various reasons in the future, which is now not to be assessed by the Constitutional Court in substance, the former Decree No 290 / 2006 Coll. must nevertheless be subject to the requirement of legal authorisation.
87. The Constitutional Court reiterates that, in view of the construction of the empowerment provision § 17 (3) of Act No. 48 / 1997 Coll. is, in principle, the obligation of any (later) Minister or Ministry, subject to further conditions, to issue framework agreements resulting from the conciliation procedure as a decree. In this Constitutional Court did not accept the appellant's argument, which indicated the political (or other interest) purpose of issuing the contested Decree No. 618 / 2006 Coll., note bene if it was established that the conciliation procedure was initiated at a time when the outcome of the subsequent elections to the Chamber of Deputies and the (political) composition of the future government could not be objectively anticipated. Specific result of conciliation - which is the content of Decree No. 618 / 2006 Coll. - was the result of the will of an authority other than the Minister and was known more than two months before MUDr. Tomáš Julínek was appointed Minister.
Varia
88. The Constitutional Court considered it unnecessary to carry out evidence in relation to the chronology of constitutional steps linked to the appointment of governments and the process of expressing confidence by the Chamber of Deputies in 2006 and 2007, as these are generally known facts. It also seemed superfluous to request further opinions from the parties to the conciliation procedure, including those recommended by the appellant in its written submissions.
89. At the same time, the Constitutional Court did not find any grounds for priority consideration under § 39 of the Law on the Constitutional Court, since the alleged lack of legitimacy (in the level of constitutional authority) for the issue of Decree No. 618 / 2006 Coll. at the time of the submission of the proposal, the new Government of Mirek Topolánek, which gained the trust of the Chamber of Deputies on 19 January 2007, was not at any time critical at the time of the proposal. The Ministry, led by a member of the Government, who gained the trust of the Chamber of Deputies, did not, in its opinion, feel Decree No. 618 / 2006 Coll. as an unconstitutional extension of the previous "provisional" executive to its own competence, but defended it. At the same time, the possible priority (in the order of the months) of the annulment of the contested Decree No 618 / 2006 Coll. would not have been objectively removed when two groups of health care establishments with contracts governed by different framework contracts, according to the period of effectiveness of both decrees. By abolishing the contested order, neither the "revival 'of the legislation of the previous and, therefore, the former framework agreement, to which the appellant has cloned in substance, would have brought to life. At the same time, the validity of contracts already concluded would not be affected. Finally, the Constitutional Court did not find the urgency of the alleged interference of the contested decree in the rights already acquired, since the existence of such interference in the application was not substantiated, the appellant's argument was only in the general concern level and the assessment of the alleged individual claims could not be the subject of this procedure.
Conclusion
90. The Constitutional Court therefore did not find any contradiction between the contested decree or part thereof with the constitutional order or the law, and therefore rejected the application for annulment of the contested order pursuant to Paragraph 70 (2) of the Constitutional Court Act.
President of the Constitutional Court:
JUDr. Rychetský v. r.
Different opinions pursuant to Article 14 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, were taken by the full Judge Eliška Wagner and Jan Musil.
Sign in for notes, favorites and notifications
Regulation Information
| Citation | Findings of the Constitutional Court No 66 / 2010 Coll., on the application for annulment of Decree No 618 / 2006 Coll., which issue framework contracts or its individual provisions |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 16.03.2010 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
Comments 0