The Constitutional Court found No 8 / 2017 Coll.
The Constitutional Court found of 13 December 2016 sp. zn.
Valid
8
FIND
The Constitutional Court
On behalf of the Republic
The Constitutional Court decided under point Pl. Pl. ÚS 19 / 16 on 13 December 2016 in plenary composed of the President of the Court of Pavel Rychetský and Judge Louis David, Jaroslav Fenyk, Josef Fiale, Jan Filip, Jaromír Jirsy, Jan Musil, Vladimir Sládeček, Radovana Sukánek, Kateřina Šimáčková, Vojtěho Šimíček (Judge of the Rapporteur), Milady Tomková, David Uhlíř and Jiří Zemáří Zemánek as a member of the Chamber of the Parliament of the Czech Republic, for which Senator Jiří Čunek, represented by JUDr Tatianá Jirásková, lawyer, on the annulment of the Order No. 273 / 2015 Coll.
as follows:
Paragraph 4 (2) and Annex 1 (B) (2) (b) of the Decree of the Ministry of Health No 273 / 2015 Coll., on the determination of the value of the points, the amount of payments of the services paid and the regulatory restrictions for 2016, in the words "and (e) 'shall be deleted from the date of the publication of this finding in the Collection of Laws.
Reasons
Subject matter
1. A group of 24 Senators of the Senate of the Parliament of the Czech Republic ("the applicants") requested the annulment of the Decree of the Ministry of Health No. 273 / 2015 Coll., on the setting of the values of the item, the amount of the fees paid and the regulatory restrictions for 2016 (hereinafter referred to as the "reimbursement order"), namely in the words "and (e)" contained in the provisions of § 4 (2) and its Annex 1 in Part B (2) (b) (hereinafter referred to as "the contested provisions").
2.
Article 4 (2)
For paid services provided by post-bed care providers, long-term bed care providers, special outpatient care provided under § 22 (c) and (e) of the Act and special-bed care providers, paid at a flat rate for one day of hospitalisation or performance, the value of the point, the amount of payment of the services paid and the regulatory limit shall be set out in Annex 1 to this Decree.
Annex No 1, Part B, point 2 (b)
For providers of special outpatient care provided pursuant to § 22 (c) and (e) of the Act, the amount of the remuneration according to the list of performances is determined by payment for the performance provided...
3. On 10 May 2016, the Constitutional Court received a proposal from a group of 15 senators of the Senate of the Parliament of the Czech Republic, who also sought the annulment of the words "and (e) 'contained in the contested provision of Paragraph 4 (2) of the Order of Payment. In view of this, this proposal, because of litispendence (§ 35 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court) under the provisions of § 43 (2) (b) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, in conjunction with its § 43 (1) (e), was rejected by a resolution of 21.6.2016 sp. zn. The Constitutional Court will therefore address the question of the compliance of the contested provision of the order for reimbursement, the annulment of which was the substance of the rejected application, in the (previously initiated) proceedings for the appellants' proposal, including from the point of view of the arguments contained in the later proposal of the said group of senators [cf. sp. zn. According to the provisions of Paragraph 35 (2) of the Law on the Constitutional Court, this group of Senators was thus granted the right to be an intervener in the proceedings for the present proposal.
Recital of the appellants' and interveners' submissions
4. The contested provisions of the Preservation Order, according to the applicants, set for 2016 the value of the point, the amount of the payments of the services paid and the regulatory restrictions on nursing care provided by the practice of the treating doctor to insured persons located in residential social services facilities within the meaning of the provisions of Section 22 (e) of Act No. 48 / 1997 Coll., on public health insurance and on the amendment and addition of certain related laws, as amended (hereinafter referred to as the "Public Health Insurance Act '). However, according to the appellants, this regulation is contrary to Article 1 (1) of the Constitution of the Czech Republic (hereinafter referred to as the Constitution) and, in particular, Article 79 (3) of the Constitution, since the reimbursement decree was not issued by the Ministry of Health in relation to nursing care to insured persons placed in social services accommodation facilities within the limits and under the law (secundum et intra legem) but outside the law (preater legem).
Regulation of the reimbursement of health services provided by social services in the public health insurance system
5. First of all, the applicants point out in their proposal that, at the same time as the creation of conditions for the provision of nursing and rehabilitation care by resident social services facilities (foreseen in particular in the provisions of Section 36 of Act No. 108 / 2006 Coll., on Social Services, as amended by Act No. 206 / 2009 Coll.), the method of payment of such care from public health insurance had also to be chosen. In this case the so-called performance method of payment was chosen, i.e. the remuneration for health performance according to the list of health performance with point values, as modified by Decree No. 134 / 1998 Coll., which publishes the list of health performance with point values, as amended ("Decree No. 134 / 1998 Coll. '). With effect from 1.1.2007 (pursuant to Decree No. 620 / 2006 Coll.), a new expertise" 913 - general nurse in social services "has been assigned here and the relevant performance of this expertise has been adjusted, the general nurse in social services being understood as" general nurse providing health care to insured persons in social services accommodation, and the healthcare provided is reported on the basis of the doctor's office of the relevant professional performance 913'.
6. As part of the payment of nursing and rehabilitation care from public health insurance provided to clients of social services residence facilities, three bodies are present: health insurance, medical care and social services residence facilities. The treating doctor is a provider of health services, which has its own right to provide health services and has a contract with the health insurance company to provide and pay for health services (according to the provisions of Section 17 of the Public Health Insurance Act). In essence, it is any registered doctor whose relationship to social services residence is defined only by the fact that some of his patients are also clients of the social facility. These patients are then taken care of by the attending physician, inter alia, by ordering, on the basis of the planned nursing plan, specific health performance for the social services residence facility, which will be performed by its own staff with appropriate competence. If a so-called special contract is to be concluded with social services (within the meaning of Section 17a of the Public Health Insurance Act), it is subsequently entitled to report the health care provided to the health insurance undertaking (a specific procedure provides for a methodology for the acquisition and transmission of documents by health insurance companies). In other words, "a social services residence facility is only entitled to payment of the care provided to the extent of the order of the treating doctor, who has assessed the provision of the care as necessary, and is a separate provider of health services outside the contractual relationship of the health insurance undertaking and the social services residence facility '.
7. In the case of the so-called performance method of remuneration, it is also necessary to determine who is entitled to determine the value of the point, since otherwise the amount of healthcare provided could not be converted into financial benefits. According to the applicants, it is a fundamental question for the assessment of this proposal whether the Ministry of Health is entitled to determine the value of the point also for the payment of health services provided by social services accommodation facilities. According to the provisions of Section 17 (5) of the Public Health Insurance Act, the Ministry of Health is empowered to determine the value of the point, the amount of compensation of the services paid and the regulatory limitation for "contractors' who are authorised to participate in the conciliation procedure. However, only natural and legal persons authorised to provide health services under Act No. 372 / 2011 Coll., on health services and the conditions for providing them (Health Services Act), as amended, are entitled to participate in the conciliation procedure (hereinafter referred to as the" Health Services Act '), and at the same time have a contract on the provision and reimbursement of paid services under Section 17 of the Public Health Insurance Act. However, in the appellants' view, the historical and grammatical interpretation of the provisions of Section 17 (5) of the Public Health Insurance Act cannot be concluded that "contractual providers' are also resident facilities of social services, although they provide health services and are in contractual relationship with a health insurance company. However, these contracts are not contracts for the provision and payment of paid services within the meaning of the provisions of § 17, but so-called special contracts with a specific purpose (provision of benefits in kind in the provision of nursing care) which are concluded under the provisions of § 17a of the Public Health Insurance Act. According to the applicants, that statement is confirmed by the fact that throughout the period of effectiveness of Act No. 108 / 2006 Coll., on Social Services, as amended, (hereinafter referred to as the" Social Services Act '), the expertise of 913 or the nursing care provided to insured persons located in residential social services facilities was never subject to regulation of the reimbursement order. The regulation of expertise 913 took place for the first time only in the remuneration decree in question for 2016, which, according to the applicants, is a manifest excel of the Ministry of Health and a breach of legal authorisation to issue it.
8. At the same time, however, the applicants stress that excluding the application of the reimbursement order to social services housing does not imply the absence of any price regulation of the services they provide. The authority of the Ministry of Health to regulate payments of paid services is not the only authorisation for price standards, since the Ministry of Health is also empowered to regulate the prices of the provided health services by Act No. 526 / 1990 Coll., on prices, as amended, in conjunction with Act No. 265 / 1991 Coll., on the competence of the authorities of the Czech Republic in the field of prices, as amended. With reference to the above laws, the Ministry of Health Bulletin, as every year, published the Price Code of the Ministry of Health 1 / 2016 / DZP of 1 December 2015 on the regulation of the prices of health services provided, the setting of maximum prices for health services provided by dental practitioners covered by public health insurance and specific health performance ("the Price Code '). In other words, in a situation where social service providers are excluded from participating in the conciliation procedure prior to the adoption of the reimbursement order within the meaning of the provisions of Section 17 of the Public Health Insurance Act, the Price Code is precisely the regulation of the health services they provide.
Weaknesses in the process of receiving the remuneration order
9. In their proposal, the appellants take full account of the actual course of the process of accepting the remuneration order, highlighting two important and controversial facts (they also demonstrate their claims by the annexes to the proposal). The first is that the conciliation procedure foreseen in Article 17 (5) of the Public Health Insurance Act did not take part (and, in view of the wording of the provision cited, could not take part) in the representative of social services providers (represented by the Association of Social Services Providers of the Czech Republic). Paragraph 17 (5) of the Act on Public Health Insurance shows that the Ministry of Health is entitled, after the conciliation procedure, to issue a decree setting out the value of the point, the amount of payments of the services paid and the regulatory limitation. The conciliation procedure is a binding step before the issue of the relevant decree, as the Ministry of Health is responsible for assessing whether or not the outcome of the conciliation procedure is legal and public interest, or to act if there is no agreement between the parties concerned at the statutory time. At the same time, this defines the subject matter of the decree, which can only regulate the remuneration of the services paid to those providers who are authorised to take part in the conciliation procedure and thus submit proposals, discuss them or approach compromise solutions. Otherwise, the meaning and importance of the conciliation procedure, which is to create an area for reaching agreement between stakeholders on the price of the services paid and the conditions for their reimbursement, would be completely denied. If the participation of one of the service providers paid for in the conciliation procedure is excluded, the Ministry of Health cannot fulfil its basic obligation, which is to assess the results of the conciliation procedure with legal or public interest.
10. The second appellant is stressed that, contrary to Article 16 of the Legislative Decree of 12 October 2015, the Ministry of Health did not respect the opinion of the Working Committee of the Legislative Council of the Government of Public Law II, after the draft reimbursement decree was submitted in accordance with the legislative rules of the Government. In it, the working committee responded to the original draft Decree of reimbursement of the Ministry of Health, in whose provision Section 1, and therefore the subject of regulation included the expertise "913 - social services residence facilities - expertise 913 - general nurse in social services." This procedure was followed by a comment from the Working Commission, which pointed out that "the draft decree is in some way contrary to the legal authority represented by Article 17 (5) of Act No. 48 / 1997 Coll., on Public Health Insurance, as amended, when the publication of such decree is preceded by the conciliation of health service providers under the Health Services Act. The accommodation facilities of social services - expertise 913 - general nurse in social services - are not providers of health services, but providers of social services, although they also provide health services to a certain extent. Therefore, this expertise cannot be modified by the proposed decree - its providers, represented by the Association of Social Services Providers, did not participate or were not able to participate in the conciliation procedure required by Act No. 48 / 1997 Coll. as a binding step before the decree was issued, as they were not representatives of health service providers. Nursing care provided by general nurses in the facilities of social services providers is to be covered by a special contract between the provider and the health insurance company concluded under § 17a of Act No. 48 / 1997 Coll., and not by a contract between the health service provider and the health insurance company concluded under § 17 (5) of Act No. 48 / 1997 Coll. 'For these reasons, the Working Commission called for the" omission of the word, 913' of the provisions of § 1 (g), of § 10 and other provisions of the draft reimbursement order. "
11. However, according to the applicants, the Ministry of Health responded to this comment by deleting the word "913" from the draft reimbursement order, but also by adapting the wording of the provisions of Section 4 (2) of the reimbursement order, according to which the value of the point, the amount of the payments of the services paid and the regulatory restrictions for the services paid, inter alia, to providers of special outpatient care within the meaning of Section 22 (e) of the Public Health Insurance Act, which is the nursing care provided by the social services in the professional capacity 913, is set out in Annex 1. By this procedure, the Ministry of Health, according to the applicants, "not only has the opinion of the Working Commission been completely flagrant, but it also violated the legislative rules of the government."
Opposition of the contested provisions with Article 1 (1) of the Constitution
12. The appellants take the view that the procedure described above by the Ministry of Health in the process of accepting the recovery order is contrary to Article 1 (1) of the Constitution and, in case of case law [the appellants refer to the findings of the Constitutional Court and quote from sp. zn. Pl. Pl. ÚS 5 / 02 of 2.10.2002; 37 / 2007 SbNU 25; 476 / 2002 Sb.), sp. zl. Pl. ÚS 77 / 06 of 15.2.2007 (N 30 / 44 SbNU 349; 37 / 2007 Sb.) or sp. Pl. ÚS 19 / 13 of 22.10.2013 (N 178 / 71 SbNU 105; 396 / 2013 Sb.)] derived from the principles of general terms of normoproduction, namely, namely, the contract of the livovole and arbitral and the principle of predictability. Although the draft conclusions cited in the case-law of the Constitutional Court relate mainly to the legislative process, the appellants consider that they are also applicable to derived standards. "Even power of power cannot proceed arbitrarily when legislating, but it is also bound by law. In addition to the Constitution and the laws, these are certainly procedural rules when adopting substatutory standards, if they are consistent with higher values of law-making, especially when these rules are created by the very power of the Czech government." According to the appellants, the addressees of the legislation clearly also have "the right to legitimately expect that the legislation has passed a discourse not only in its content, but also in its formal correctness. If, in accordance with its de facto procedure, the author of the draft decree prevents the possibility of professional discourse, whether this legislation or some of its provisions are not contrary to the Constitution, the infringement of the legislative rules must be regarded as a breach of the fundamental principles of the legislations of the Constitution '. Resignation to check the constitutionality of the adoption of an implementing act in accordance with the legislative rules of the Government would thus" mean the possibility for the authorities of power of executive, endowed by law-based normomaking, to sow the rule of law through a number of regulations or decrees issued on the basis of legal authorisation but otherwise issued outside their competence. "
Opposition of the contested provisions with Article 79 (3) of the Constitution
13. The contested provisions of the recovery order according to the appellants also derogate from the constitutional bond provided for in Article 79 (3) of the Constitution. The Ministry of Health has significantly exceeded the limits of the above-mentioned statutory authorisation laid down in Section 17 (5) of the Public Health Insurance Act, provided that it has set the value of the point, the level of compensation of the services paid and the regulatory limit also for special outpatient care provided under Section 22 (e) of the Public Health Insurance Act, i.e. for nursing care provided to insured persons located in residential social services facilities, although those cannot in any case be considered as "contractual providers' within the meaning of Section 17 (5) of the Public Health Insurance Act. The applicants therefore conclude that the" completely unexpected inclusion of nursing care provided to clients in social services residence facilities in the 2016 payment order is a breach of legal authorisation and a violation of the prohibition of libel and the principle of predictability of law '.
Application by the intervener
14. The intervener also justifies its application for annulment of the contested provision [the words "and (e)" contained in the provisions of Paragraph 4 (2) of the Order of Payment], in particular, by the extension of the scope of the Order to entities referred to in Paragraph 22 (e) of the Act on Public Health Insurance, does not, on the one hand, have the basis of the Act, on the other hand, of remuneration for the entities to which the Order affects the contested scope, cannot be regulated from this point of view by the Order at all, which constitutes a breach of the constitutional cauties referred to in Article 79 (3) of the Constitution; 238 / 2013 Coll.
15. In the view of the intervener, in so far as the order for reimbursement has been contested, none of the constitutional conditions for the issue of the statutory law is fulfilled. Although there is a legal basis in general (Public Health Insurance Act), it does not in any way allow the rules on the provision of nursing care payments to be included in the statutory legislation. On the contrary, the Act on Public Health Insurance refers only and exclusively to the so-called special contract which the health insurance company must conclude with each individual social service provider in Articles 17a and 22 (e). This implies that the Ministry of Health is not legally empowered to regulate the amount of remuneration for the care thus provided by the law. "The Eo ipso decree is also found outside the legal limits of the law, precisely because the law allows for the issue of statutory legislation only for the purpose of providing health care payments to health service providers." According to the intervener, the exceeding of the legal authorisation in the Public Health Insurance Act is so obvious that there is no need to explain it more widely. Moreover, this claim is also supported by the fact that the level of remuneration paid to social services providers has never been enshrined in any remuneration decree for the previous years (i.e. 2015 and previous years). It is clear from this that the Ministry of Health, starting in 2007 and ending in 2015, has respected the fact that regulation of such material in a statutory legislation is not at all for it.
16. In addition to the argument that the reimbursement order was issued to the extent contested outside the legal competence of the Ministry of Health (pursuant to the provisions of Section 68 (2) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.), the intervener also points out in its proposal "its overall construction, which is very problematic also in terms of the requirements for transparency of the law '. There is no reason for social service providers, if the remuneration decree could ever affect them, not to be mentioned in Paragraph 1, in addition to the other bodies affected by the remuneration decree, in order to maintain the desired legal system." There is no reason for the Ministry to choose the legislative solution except that, in this way, the extension of the staffing scope of the decree, contrary to the law at first sight, does not strike eyes'.
17. Last but not least, the intervener also claims substantive reasons in its application and, in support of the case-law of the Constitutional Court [in particular in the cited finding of the sp. zn. Pl. ÚS 19 / 13 or sp. zn. Pl. The contested unconstitutional nature of the contested provision of the order for reimbursement is seen by the intervener in the way in which the initial rules for calculating the remuneration for care for social services providers are laid down. The fact that social service providers "were inorganically and unintentionally" included under the staffing scope of the decree, the same rules apply to them for calculating the amount of remuneration to be paid to healthcare providers. However, the status of social services providers is not comparable with that of healthcare providers. At the same time, the position of social service providers among each other is not comparable, given the specific nature of social services.
18. This is reflected in particular in the calculation of the amount of the remuneration, since according to the provisions of Paragraph 2 (1) of the Order, one of the starting parameters for calculating the amount of the remuneration is the reference period, which is 2014. All the services provided in 2014, the provider reported by 31 March 2015 and the health insurance company recognised by 31 May 2015 (Section 2 (3) of the remuneration order) are included in the reference period. According to the provisions of Paragraph 17 (2) of the Remuneration Order, a provider that did not exist during the reference period was established during the reference period or did not have a contract with a health insurance undertaking, the health insurance company uses the benchmarks of comparable providers. However, according to the intervener, as is apparent from the follow-up of the legislation, until the end of 2015, social service providers were completely excluded from the scope of the decree, which means that there was no objective common framework for calculating the remuneration for the years 2014, 2015 or all previous periods. In fact, all social services providers were reimbursed by health insurance companies under their individual contracts within the meaning of the provisions cited in Sections 17a and 22 (e) of the Public Health Insurance Act. The level of the agreed payments was thus different on a case-by-case basis or depended on a specific health insurance company and a specific social service provider. In the absence of any reference criteria (no reference period can be used or comparable providers exist since individual contracts have been concluded with individual providers), social service providers cannot take any idea at all about the level of remuneration and therefore whether they will be reimbursed at least the costs of the services provided. "This affects not only the right to a return on costs incurred, or the right to create conditions that give a real presumption of profit, but also the principle of predictability of the effects of the regulation on the legal status of its addressees, since the basic input values to be included in the calculation are unknown (cf. point 57 of the sp. zn. Pl. ÚS 19 / 13). '
19. A breach of the principle of the protection of legitimate expectations is then seen by the intervener in that the social service providers referred to in Section 22 (e) of the Public Health Insurance Act fell exclusively under the provisions of Section 17a of the Public Health Insurance Act, and thus concluded, as has been repeatedly pointed out, so-called special contracts with health insurance companies. This long-term practice, based on the unambiguous wording of the law, has led to the creation of an environment that has shaped the certainty and stability of the service providers and affected their economic activities (long-term investment in the equipment they operate and so on). The "change 'brought about by the contested provision of the remuneration order brought about an element of uncertainty in these stable relations, as it fundamentally changed such an important factor for each economic operator, such as the way in which the remuneration for the services it provides is determined.
20. In its observations on the appellants' proposal, registered at the Constitutional Court on 15 August 2016, the intervener states that "overall, it agrees with the proposal that, in accordance with its initial proposal, it proposes that the contested provisions be repealed on the date of the publication of the decision in the Collection of Laws, because there is no reason to postpone the effects of the finding in this case '. Although, contrary to the appellants, the intervener does not consider that the contested provisions of the recovery order would be contrary to Article 1 (1) of the Constitution for the reasons set out in the proposal, since" the rules of the normative procedure in the issuing of substatutory legislation rely on Article 79 (3) of the Constitution; the meaning of Article 1 In that context, the Constitution is so general that it cannot be found to be infringed unless the infringement of Article 79 (3) of the Constitution has always implied an infringement of Article 1 of the Constitution, "arguing that the infringement of the rules governing the issue of the statutory provisions resulting from Article 79 (3) of the Constitution is a key part of the application by the intervener and therefore concludes that" it fully agrees with the content of Part VIII of the draft, as it conforms to its own arguments on key points'.
Expression and reply of the Ministry of Health
21. The Constitutional Court pursuant to the provisions of § 42 (4) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 77 / 1998 Coll., sent the proposals in question for the annulment of the contested provisions of the reimbursement order to the Ministry of Health. At the same time, according to the provisions of Section 69 (3) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended, he sent it to the Ombudsman with a request to be heard as an intervener. However, the Ombudsman responded to the call by a letter dated 25.7.2016, in which he informed the Constitutional Court that "does not exercise his right to intervene '.
22. In its observations received by the Constitutional Court on 15 October 2016, the Ministry of Health does not consider the applications for annulment of the contested provisions of the recovery order to be justified and does not see any infringement of any of the rights referred to by the appellants. First of all, the Ministry of Health "considers it crucial to clarify in the context of the proposal the reasons which led to the inclusion of expertise 913 (general nurse in social services) in the text of the reimbursement decree '. In this respect, it agrees with the appellants' claim that the remuneration of health services provided by social service providers is carried out under the so-called special contract concluded under the provisions of Section 17a of the Public Health Insurance Act. The inclusion of expertise 913 in the remuneration decree does not change this. In order to be eligible for public health insurance, 913 health services must continue to be covered by a special contract, even after that expertise has been included in the remuneration order. Therefore, without the conclusion of a specific contract, the reimbursement of these public health insurance services is no longer possible.
23. However, the Ministry of Health points out that, by including the expertise 913 in the remuneration decree, "it seeks to solve two specific problems that have been created in practice and, for the purpose of which, repeatedly, representatives of social services providers, the Ministry of Health have requested the inclusion of expertise 913 in the remuneration decree." The first of these problems is the long-term practice where the contracts of both health and social services providers with health insurance companies generally do not contain the terms and conditions of reimbursement directly, but only in so-called reimbursement supplements, which contain only an agreement on the reimbursement of the health services provided and are normally concluded for a period of one year, and for each year the health insurance company and the provider agree on a new payment supplement. "However, while for health service providers, if the health insurance company does not agree on a payment supplement with the provider, the health services provided are covered by the procedure provided for in the payment order (whereas the contract for the provision and payment of the services paid gives both parties the opportunity to agree, by means of a payment supplement, on terms different from those laid down in the flat-rate payment order), on the arrangements for the provision of health services provided in the event of failure to conclude the relevant payment supplement in the past. 'The problem was, in particular, that although health insurance companies have a contractual obligation in accordance with the provisions of Section 17a of the Public Health Insurance Act against social service providers, in the event of non-compliance with the contractual obligation of a health insurance undertaking, the law no longer provides for any further procedure, and this provision is therefore in practice not enforceable enough. In the absence of a mutual agreement to conclude the so-called remuneration supplement, the insurance undertaking's legal relationship with the social service provider as regards the remuneration for the health services provided remained in the legal vacuum. There was no clear way not to pay for health services provided in accordance with a special contract, and there were disputes which had to be dealt with in a court with a very poorly foreseeable outcome.'
24. The second problem, according to the Ministry of Health, is that "there has been no adjustment to the remuneration from which the health insurance company's negotiations with the social service provider could depend '. The inclusion of expertise 913 in the reimbursement decree therefore" was a necessary step to resolve the legal vacuum between health insurance companies and social services providers in the long term... promised to simplify and clarify the legal relations of social services providers with health insurance companies in the event of failure to negotiate a special contract supplement, to facilitate the negotiation of such remuneration supplements and to prevent unnecessary legal disputes that have often arisen from unsatisfactory legislation in the past'.
25. In this context, the Ministry of Health "beyond that argument 'refers to the fact that, in the period since the payment order was issued by the Supreme Court on 28 April 2016, the judgment in Case C-23 / 88 / 2014, which states that" in the absence of a specific contract, the remuneration supplement for the implementation of the payments may be used analogous to the reimbursement order for the relevant year of the closest professional competence 913 [for 2012 according to the judicature, the remuneration for the providers referred to in Section 22 (c) of the Public Health Insurance Act]'. Therefore, the Ministry of Health adds that "in the light of this precedent decision, the inclusion of the expertise 913 in the remuneration decree may now appear superfluous, because the exact same result can now be achieved by using the closest provision of the reimbursement order applicable to the health service provider ', but it considers it important to stress that at the time of the decree it was not possible to anticipate such a" precedent decision and it was necessary to address the factual situation of the legal vacuum when the question whether or not to apply the reimbursement decree to the above described situations was not answered in a convincing manner'.
26. The Ministry of Health does not, in its observations, agree with the alleged infringement of Article 79 (3) of the Constitution, since the authorisation for the issue of a reimbursement order in Article 17 (5) of the Public Health Insurance Act "concerns the reimbursement of the health services paid, while not distinguishing between the eligible bodies. According to Section 11 of the Health Services Act, health services are entitled to be provided both by the health service provider 'and under specified conditions by the social service provider'. It also does not agree that its approach (in the form of inclusion of expertise 913 in the text of the reimbursement order) would be unpredictable or arbitrary, as it" is a response to the long-term efforts of health service providers described above. In this respect, therefore, it is not possible to talk about the unforeseeable progress of the Ministry, but about the response to these efforts. It is also for this reason not an arbitrary procedure which would mean the simple issue of statutory legislation without prior consultation with the parties concerned. This discussion shall be carried out in the context of conciliation procedures which have also taken place in this case '.
27. Similarly, the Ministry of Health does not agree with the opposition of the parties to the infringement of Article 26 of the Charter, since "the remuneration decree itself does not directly concern the right to business, does not regulate in any way the conditions under which authorisation to provide health services can be granted, does not prevent health service providers from offering such services, whether they are services paid or not covered by public health insurance, etc. '. It only sets the values of the points, the amount of the payments of the services paid and the regulatory constraints, by means of general characteristics for all selected and pre-determined categories." If a particular health service provider falls into a given category, the remuneration for the healthcare provided shall be calculated in accordance with the same calculation as any other health service provider falling under the same category.'
28. The Constitutional Court sent the observations of the Ministry of Health to the appellants and interveners for a reply.
29. In their reply, the appellants maintain their argument that the Ministry of Health, by issuing the contested provisions, exceeded the legal authorisation (Section 17 (5) of the Public Health Insurance Act), while the statement of the Ministry of Health justifying its "conviction of the appellants' procedure, is confirmed by the lack of legal regulation which cannot be addressed by the amendment of the statutory legislation, i.e. the reimbursement decree." The Ministry has undoubtedly had plenty of time and opportunities to amend the Public Health Insurance Act and to correct the alleged legal vacuum. "In addition, the applicants specifically dispute and disagree with the above-mentioned reasons (" practical problems') which led the Ministry of Health to adopt the contested provisions. Similarly, the appellants do not agree with the argument of the Ministry of Health in which it rejects the infringement of Article 79 (3) of the Constitution, since the procedure introduced by the Ministry under Article 17 (5) of the Public Health Insurance Act is only applicable after the conciliation procedure, which is an obligation step before the issue of the decree. "Social services providers are not authorised to participate in the conciliation procedure and have never been placed under a remuneration decree in the past. This structure is completely understandable, since in the case of a person who has become a client of a social service provider, there has been a single change consisting of moving it from the home environment to the facilities of the social services provider where it is to be provided with comprehensive social services. '
30. At the same time, the appellants point out that the construction of the system of health service providers and of the system of social services providers continues, including with the contribution of the Ministry of Health, as an example of the Act No. 340 / 2015 Coll., on the special conditions for the effectiveness of certain contracts, the publication of these contracts and the register of contracts (Act on the Register of Contracts), and the related amendment to the Act on Public Health Insurance (Act No. 200 / 2015 Coll.), which the Ministry of Health submitted. "Under the current legislation of the Public Health Insurance Act, all contracts for the provision and reimbursement of health care are published in the register of contracts held by health insurance companies, including amendments to the level of remuneration. However, special contracts concluded with social service providers are subject to the Act on the Register of Contracts and are published in a register maintained by the Ministry of Interior. However, each of those rules links the failure to fulfil the obligation to publish the contract with entirely different consequences. 'The appellants therefore reject the attempt of the Ministry of Health, in this situation, to import cases of the analogous application of a remuneration order to social service providers as" entirely purposeful, contrary to the legislation in force and contrary to the intention of the legislator to define the status of social services providers through law'.
31. In its reply, the intervener also rejects the argument of the Ministry of Health and persists in the opinion that the regulation of care provided by social services providers could only be implemented in the reimbursement decree "provided that the legislation is amended. However, this was not the case and the Ministry was therefore not entitled to regulate the remuneration for care provided in social services facilities in the way it had chosen. 'If the Ministry of Health finds support for the issue of the contested provisions of the reimbursement decree in the provision of Section 17 (5) of the Public Health Insurance Act in conjunction with the provision of Section 11 of the Health Services Act, the mere fact that the provision of health services is also possible in social services facilities cannot be concluded that" the Ministry could also regulate such health care through the reimbursement decree. Paragraph 11 of the Law on Health Services concerns the authorisation to provide health services and cannot import the same status as providers of health services and social services. Paragraph 17a of the Public Health Insurance Act is without doubt lex specialis to § 17 of the same Act. "Moreover, if the Ministry's argument is correct, the question is why the care provided by the social service provider has not been included in the regulation by a remuneration decree since the effectiveness of Act No. 372 / 2011 Coll., i.e. from 1 April 2012.
32. In the view of the intervener, the legislature made it clear, without doubt, that "the payment for nursing care in social services facilities is to be provided under a scheme other than the payment for health care provided in healthcare establishments within the meaning of Article 17 of the same law '. In fact, if the legislator intended to pay nursing care to social services providers under the same regime as for health care institutions, it could quite simply include social services providers among the entities affected by the provision cited in Section 17 of the Public Health Insurance Act." However, it cannot be considered as acceptable to achieve such a result by means of a decree which clearly lacks legal support in this respect. "
Oral proceedings
33. Pursuant to Article 44 of Act No 182 / 1993 Coll., on the Constitutional Court, as amended, the Constitutional Court ruled in the case without the oral hearing, since further clarification of the case could not be expected of it.
Constitutional conformity of the adoption of the contested provisions
34. In the procedure for checking the standards referred to in Article 87 (1) (b) of the Constitution, the Constitutional Court, within the meaning of the provisions of Section 68 (2) of Act No 182 / 1993 Coll., on the Constitutional Court, as amended by Act No 48 / 2002 Coll., must first examine whether the "other legislation" has been adopted and issued in a constitutional manner and within the limits of the constitutional competence provided for.
35. As has already been recapitulated, Reimbursement Order No. 273 / 2015 Coll., which includes the contested provisions, was issued by the Ministry of Health. The powers of ministries to legislate for the implementation of the law are formally established by Article 79 (3) of the Constitution, which provides that (inter alia) ministries may, under and within the limits of the law, legislate if they are empowered by law to do so. 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). "The reason for establishing this power directly in the Constitution is 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. It would be directly available to the legislator if the legislature's legislative power were to be established only by law, thereby allowing the legislature to intervene in itself in the powers of the executive authorities, for example by deleting the executive authority entirely" [cf., for example, the finding of sp. zn. Pl. ÚS 28 / 06 of 16.12.2008 (N 222 / 51 of SbNU 753; 69 / 2009 Coll.) or the finding of sp. zn. Pl. ÚS 6 / 07 of 9.2.2010 (N 20 / 56 of SbNU 207; 66 / 2010 Coll.)].
36. Material is then the power under Article 79 (3) The Constitution is subject to the existence of an explicit legal mandate and its limits, which is the fulfilment of that competence in terms of scope and content (competence). It is necessary, however, to interpret the provision in the context of the whole Constitution in such a way that other orders and principles of constitutional order are also preserved. Therefore, in view of the requirement of predictability of law [the principle derived from the case-law of the Constitutional Court from the principle of the rule of law laid down in Article 1 (1) of the Constitution - see, for example, the finding of sp. zn. Pl. ÚS 21 / 02 of 22.3.2005 (N 59 / 36 of the SbNU 631; 211 / 2005 Coll.) or the quoted finding of sp. zn. Pl. ÚS 77 / 06] and the principle of division of power (Article 2 (1) of the Constitution), the legal authorisation must, as far as far as possible, define the content, purpose and extent of the adjustment made by the Decree, and thus ensure the certainty of the legal authority [cf. Pl. ÚS 3 / 2000 of 21.6.2000 (N 93 / 18 of SbNU 287; 231 / 2000 Coll.)]. As the Constitutional Court pointed out in the cited finding of Sp. Zn. Pl. ÚS 6 / 07, "the statutory speciality of such a norm testifies to a different functional concept [cf. also a partial definition of the ministries' competence compared to the governing, control and unification '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). While respecting the division of power (restrictive interpretation of legal authorisation) and the principle of legal certainty, the power to legislate is (and should be) so precise and specific 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 against Parliament'. In other words, in this way, the legislature, on the one hand (respecting the principle of division of power) sets the limits for ministries for their standards, the content of which must in no way alter laws or is outside the legislature's will to supplement [by analogy] the different opinion of Elisa Wagner on the finding of sp. zn." Failure to respect one of the above elements of the empowerment standard leads to a conclusion on a lack of legal authorisation for the issue of an implementing regulation '(cf. the quoted finding sp. zn.
37. It is only in a situation where the legal authorisation fulfils the above requirements that the Constitutional Court examines whether the statutory law in question was issued by a state body authorised to do so and within the limits of its competence, i.e. whether it was within the limits and under the law (secundum et intra legem) and not outside the law (preater legem) when exercising that power. To put it simply, it is a matter that, when it is to be under Law X, this rule does not provide that it should be Y, but that it should be X1, X2, X3 [cf. ÚS 7 / 03 of 18.8.2004 (N 113 / 34 of SbNU 165; 512 / 2004 of Sb.) or that it should be sp. zn.
The Constitutional Court's own review
38. The empowerment of the Ministry of Health to issue a remuneration order setting the value of the item, the amount of the payment of the services paid and the regulatory limitation is based on the provisions of Paragraph 17 (5) of the Public Health Insurance Act, which reads: "Unless otherwise provided by this Act, the value of the item, the amount of the payment of the services paid and the regulatory restriction shall be agreed in the conciliation procedure of representatives of the General Health Insurance Company of the Czech Republic and other health insurance companies and the relevant professional associations of providers as representatives of the contracting providers. The Director of Conciliation is the Ministry of Health. If an agreement is reached, the Ministry of Health will assess its content in terms of compliance with legislation and public interest. If the agreement is legal and public interest, the Ministry of Health shall issue it as a decree. If the conciliation procedure fails to reach agreement by 30 June of the relevant calendar year, or if the Ministry of Health finds that the agreement is not in accordance with legislation or public interest, it shall determine the value of the point, the amount of the payment of the services paid, the amount of the advances for payment of the services paid and the regulatory limits for the following calendar year by a decree by 31 October of the calendar year. The decree under the fourth and fifth sentences shall apply unless the provider and the health insurance undertaking agree otherwise, subject to compliance with the health insurance plan, on the method of payment, the amount of remuneration and the regulatory restrictions. '
39. The Constitutional Court notes, moreover, that neither the appellants nor the intervener in the proceedings dispute that the remuneration order in question No 273 / 2015 Coll. was issued on the basis of the provisions of Section 17 (5) of the Public Health Insurance Act and the state body entitled to do so.
40. However, the appellants and, mutatis mutandis, the intervener of the proceedings base their argument on the inconstitutionality of the contested provisions of the recovery order on the allegation that the Ministry of Health exceeded its competence within the meaning of Article 79 (3) of the Constitution, since the contested provision of the recovery order is outside the limits of the legal authorisation enshrined in the provision cited in Section 17 (5) of the Public Health Insurance Act.
41. The Constitutional Court agrees with this view for the following reasons.
42. First of all, the Constitutional Court agrees with the arguments put forward by the appellants and the intervener that the contested provisions foresee the regulation of remuneration through a remuneration order and for special outpatient care provided under § 22 (e) of the Public Health Insurance Act, i.e. for nursing care provided to insured persons located in the social services residence facilities, are outside the limits of the statutory powers referred to in § 17 (5) of the Public Health Insurance Act. That provision must be seen and interpreted in the context of the whole of the Public Health Insurance Act, which, among other things, reflects the specific position of residential social services, provided that they provide health services, as is pointed out not only by the applicants but also by the Ministry of Health.
43. The status of social service providers is generally regulated (with effect from 1 January 2007) by the quoted Social Services Act, which also provides that, in the case of social services establishments providing residential services (according to Section 34 (1) of the Social Services Act, for example, weekly stationary persons, homes for disabled persons, homes for elderly people or homes with a special regime), clients are also provided with health services which are covered by public health insurance (Section 36 of the Social Services Act). In order to fulfil this obligation of the providers of residential social services to provide health care to their clients, there was an amendment (Act No. 109 / 2006 Coll., with effect from 1.1.2007) of the related legislation, on the one hand, the Act No. 20 / 1966 Coll., on the care of people, as amended, and on public health insurance. Although the first cited law was replaced (with effect from 1 April 2012) by the quoted Act on Health Services, the status of the residence social services as a health service provider did not have a major influence on this change, as the Health Services Act merely clarifies the rights and obligations of the residence social services when providing health care.
44. The Act on Public Health Insurance was specifically affected by that amendment by the fact that a new provision of § 17a was inserted under the existing provision of § 17 (subsequently in the context of the adoption of the cited Act on Health Services), which, with effect from 1 April 2012, reads: "In order to ensure the performance in kind of the provision of nursing care to insured persons located in social services establishments providing social services, the General Health Insurance Company of the Czech Republic and other health insurance companies established under the Special Act 28) separate contracts with social services providers. The competent health insurance undertaking shall conclude a specific contract if the social service provider so requests and at the same time proves that nursing care will be provided by the healthcare workers of the social services provider who are eligible for the medical profession under special legislation28a. 'At the same time, the provision of Section 22 of the Public Health Insurance Act, which defines the types of" special outpatient care' as a public health insurance service, was amended, and according to point (e) of the provision cited, "nursing care provided on the basis of the practice of the treating doctor to insured persons located in residential social services facilities by competent staff of such facilities, provided that the social services providers conclude a special contract with the relevant health insurance undertaking pursuant to § 17a '.
45. (a) nursing and rehabilitation care is provided to clients of residential social services through the staff of such establishments who are competent to perform the medical profession (Section 36 of the Social Services Act); (b) nursing care shall be provided in the form of special outpatient care (Section 22 (e) of the Public Health Insurance Act) on the basis of the practice of the nursing doctor, which is public health care.
46. The Constitutional Court considers it essential that the specific status of residence social services establishments as providers of health services is reflected in the specific arrangements for the payment of health services provided by them, when, in order to ensure the performance in kind in the provision of nursing care services, health insurance companies conclude so-called special contracts within the meaning of Section 17a of the Public Health Insurance Act, in which they also negotiate conditions of reimbursement. According to the provisions of Section 17a of the Public Health Insurance Act, the competent health insurance company is required to conclude this special contract if the social services provider so requests and proves that nursing care will be provided by healthcare workers of the social services provider who are eligible for the medical profession. The Ministry of Health also points out this in its observations ("In order to be covered by public health insurance, 913 health services must continue, even after this expertise has been included in the reimbursement decree, to conclude a special contract. Therefore, without the conclusion of a specific contract, the reimbursement of these health services from public health insurance is no longer possible").
47. According to the Constitutional Court, it is clear that the different status of health service providers and social services providers, although these (namely residential social services within the meaning of the provisions of Sections 34 and 36 of the Social Services Act) may also be provided by health services in the form of special outpatient care covered by public health insurance [as defined in Section 22 (e) of the Public Health Insurance Act], is reflected in the Act on Public Health Insurance in particular in a different legislation regulating the specific conditions of reimbursement of such health services under a system based on the so-called performance method of remuneration (as amended by Decree No 134 / 1998 Coll.). In this respect, the provision of Section 11 (1) (b) of the Public Health Insurance Act, which provides for the right of the insured person to choose a health service provider in the Czech Republic and introduces a legislative abbreviation "provider ', which is further defined in the provision of Section 2 (1) of the Health Services Act as" a natural or legal person authorised to provide health services under this Act', can only provide the health services mentioned in the health service authorisation (Section 11 (1) of this Act). By contrast, without obtaining authorisation to provide health services, health services may be provided in social services facilities under the Law on Health Services [§ 11 (2) (b) of the latter Act], and it is sufficient to fulfil the notification requirement of the competent regional authority (paragraph 8 of the provision cited).
48. In relation to health service providers, the question of financing is regulated by the provisions of Section 17 of the Public Health Insurance Act, which foresees the conclusion of "contracts for the provision and reimbursement of paid services' between health insurance companies and health services providers (paragraph 1), but must be governed by the so-called framework contract, which" is the result of conciliation between representatives of health insurance associations and representatives of relevant group contractors represented by their interest associations' (paragraph 2); An agreement resulting from the conciliation procedure is then foreseen for the purpose of determining the value of the item, the amount of the payment of the services paid and the regulatory restrictions for each of the following calendar years (paragraph 5), in both cases where the agreement does not occur within the prescribed time limit, or after assessing its content, the Ministry of Health considers that "the agreement is not in accordance with the law or the public interest ', the Ministry of Health is entitled to" make a decision' (paragraph 2), or "the value of the item, the amount of the payment of the services paid, the amount of the advances to pay and the regulatory limit for the following calendar year by decree '(paragraph 5).
49. However, as already pointed out above, in relation to residential social services providing health services, the question of their reimbursement is specifically regulated only in the provision of Section 17a of the Public Health Insurance Act, in the form of the conclusion of so-called special contracts, to which Section 22 (e) of the Public Health Insurance Act explicitly refers and, ultimately, indirectly (by reference to that provision), the contested provisions of the Decree. In any event, these so-called special contracts cannot be identified with contracts within the meaning of the provisions of Section 17 (1) of the Public Health Insurance Act, whereas the Public Health Insurance Act does not in any way provide for their content, formalities and, after all, neither the method of determining the value of the point, etc., as it does precisely in relation to contracts under the provisions of Section 17 (1) of the Public Health Insurance Act, merely imposes a contractual obligation on the parties concerned.
50. The Constitutional Court thus agrees with the view of the appellants and the intervener that, in order to assess the present case, the fundamental question is whether the Ministry of Health is entitled to determine the value of both the point and the installation of the social services, as it does through the contested provisions of the recovery order, concluding that the legal authorisation in question, i.e. the provision of Article 17 (5) of the Public Health Insurance Act, does not provide a clear answer to that question. Therefore, without the Constitutional Court adhering to the interpretation held by the appellant or to the interpretation held by the Ministry of Health, the "only 'view of the above-mentioned conclusions of the Constitutional Court's case-law is that necessary requirements for the content of the statutory authorisation for the issue of an implementing regulation within the meaning of Article 79 (3) of the Constitution, according to the Constitutional Court, the provision in question cannot be regarded as clear, understandable and for the bodies concerned by a predictable mandate authorising the Ministry of Health by means of a decree to regulate the reimbursement of health services provided by the establishments of social services [within the meaning of Article 22 (e) of the Public Health Insurance Act]. Although it appears to the Constitutional Court to a large extent rational reasons why the Ministry of Health justifies its action, it cannot do so outside the limits of legal authorisation, and thus contrary to Article 79 (3) of the Constitution, limiting the competent public authorities within the framework of the legislative power prior to the undesirable (contrary to Article 2 (1) of the Constitution) interference in the legislative field.
51. Reference of the Ministry of Health to the "precedence conclusions" of the cited Supreme Court judgment, sp. zn. 23 Paradoxically, it merely illustrates the need for practice to clarify and remove certain doubts about the way in which the compensation for health services provided by residential social services facilities is regulated, but it cannot be regarded as confirming the opinion of the Ministry of Health on the existence of a legal authorisation ("analogous application of the nearest provision of the reimbursement order to health service providers'), which is justified within the meaning of Article 79 (3) of the Constitution for the adoption of (extension) regulations through the reimbursement decree and on this issue.
52. To sum up, if, according to the Ministry of Health, there are such "problems in practice" in the remuneration of health services provided by residential social services, which can only be solved by regulation through a remuneration decree, which should be authorised to be issued, it is necessary to initiate, for this purpose, the amendment of the Act on Public Health Insurance, for which, after all, since 1 January 2007 (the effectiveness of Decree No. 620 / 2006 Coll., newly including the expertise 913 in the list of health performance with points), many opportunities and plenty of time. As a result, the Act on Public Health Insurance explicitly envisages, on the one hand, a specific system for the conclusion of specific contracts by residential social services with health insurance companies (§ 17a), outside the framework of the mechanism for the conclusion of contracts laid down in § 17 of the same law, but on the other hand, the contested part of the provision § 4 (2) of Decree No 273 / 2015 Coll. These establishments "involve 'in the same regime as health service providers; without any explicit legal support.
53. It is clear from the above provision of Section 17 of the Public Health Insurance Act that the legislature, within the framework of the set-up system of the so-called performance method of remuneration for the specific method of determining the value of the item, the level of remuneration of the services paid and the regulatory restrictions, preferred the mutual agreement between health insurance companies and the representatives of contractual providers to be the result of the conciliation procedure to be used. The purpose of the conciliation procedure is thus to reach an agreement in accordance with the common procedure on the content of framework contracts and on the determination of the value of the point, the amount of the payments of the services paid and the regulatory restrictions, and it is a binding part (requirement) of the process of determining the value of the point, the amount of the payments of the services paid and the regulatory restrictions within the framework of the reimbursement of the provision of health services by the contracting providers. Its terms and conditions (including the definition of a range of stakeholders) then specify the provision cited in Section 17 of the Public Health Insurance Act. As also pointed out by the Constitutional Court, "the central principle of that authorisation must be seen in the legislature, enshrined in the priority of the agreement to be the result of the conciliation procedure. In view of this preferred purpose, it is also necessary to interpret other conditions and formalities of the conciliation procedure or to interpret the empowerment standard itself" (cf. quoted finding sp. zn. Pl. ÚS 6 / 07). By systematic interpretation of the provisions of Sections 17 and 17a of the Act on Public Health Insurance, and Article 22 (e) of the Act cited, which explicitly follows the provisions of Section 17a, it can be concluded that Section 17 does not refer to the treatment of payments for health services provided, depending on the outcome of the conciliation procedure under Section 17, but to a specific contract concluded under the procedure laid down in Section 17a.
54. Therefore, when assessing the procedure of the Ministry of Health when issuing the contested provisions of the reimbursement order in breach of Article 79 (3) of the Constitution and with the legal authorisation contained in the provision of Section 17 (5) of the Public Health Insurance Act, the Constitutional Court cannot overlook that the Ministry of Health, through the contested provisions of the Decree of Payment, has also acceded to the regulation of payments for health services provided by residential social services facilities [within the meaning of Section 22 (e) of the Public Health Insurance Act]. However, the Ministry of Health did so without having the opportunity to participate in the conciliation procedure at all, both from the "Final Protocol of the Conciliation Procedure on the Points and Amount of Payment of Health Care Paid for 2016 'of 19.8.2015 (Annex to the proposal) and from the quoted opinion of the Legislative Council of the Government. In the present case, however, this claim could not have been invoked because, according to the provisions of § 17 of the Act cited above, the conciliation procedure in question did not apply, so even if it were a party to it, it would not have been possible to penalise the unconstitutional and unlawful procedure for the application of the contested decree to them.
55. The last group of objections from the appellants and the intervener concerned the procedure of the Ministry of Health in the process of adopting the contested provisions of the recovery order. In particular, it was argued that the Ministry of Health, in accordance with the above-mentioned procedure, did not respect the quoted opinion (comment) of the Working Commission of the Legislative Council of the Government and therefore infringed Article 16 (10) of the Legislative Rules of the Government. Although the Constitutional Court agrees with this conclusion, it is no longer possible to attest to the view (held by the appellant) that this procedure also infringed Article 1 (1) of the Constitution and the caselaw-based principles relating to standardisation, namely the prohibition of arbitrariness and the principle of predictability of law.
56. The question of the appellants' argument is that the reference criterion (measure) of the check on the constitutionality of the adoption of a statutory law itself is the legislative rules of the Government, the breach of which would, as a result and in itself, constitute a derogatory ground for repealing the legislation thus adopted. However, internal regulatory instructions cannot be a reference criterion for the constitutionality and legality of legislation. In addition, as the Constitutional Court previously stated in the judgment in Sp. v. Pl. ÚS 7 / 03 of 18.8.2004 (N 113 / 34 SbNU 165; 512 / 2004 Coll.), "[p] nullification of... legislative rules... without further infringement of the Constitution and of the statutory jurisdiction, or without violation of the constitutionally prescribed procedure for the adoption and issuance of another law (e.g. the absence of its publication in accordance with the Rules of Law), the derogatory ground under Paragraph 68 (2) of Act 182 / 1993 Coll., as amended, for failure to comply with the constitutionally prescribed procedure for the adoption of the law or other legislation '. However, the amount of the recap of the circumstances of the adoption of the now contested provisions of the recovery order was not found by the Constitutional Court to constitute such a serious breach, even of the constitutional principle of the rule of law under Article 1 (1) of the Constitution.
Conclusion
57. In the light of the foregoing, the Constitutional Court concludes that the reimbursement order is outside the limits of the legal authorisation laid down in Article 17 (5) of the Public Health Insurance Act and was therefore issued by the Ministry of Health in breach of Article 79 (3) of the Constitution. Therefore, pursuant to the provisions of § 70 (1) of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll., the Constitutional Court complied with the proposal in question and annulled the contested provisions of the order for reimbursement as unlawful and unconstitutional. In the present situation, however, the Constitutional Court for obvious overcapacity did not address the intervener's substantive objections to the infringement of the contested provisions with Article 26 (1) of the Charter.
58. Finally, the Constitutional Court recalls that the concept of the procedure on the so-called abstract control of standards is based on the principle that the repeal of the legislation takes place with effect ex nunc and not ex tunc (see in particular the provisions of Sections 70 (1) and 71 of Act No. 182 / 1993 Coll., on the Constitutional Court, as amended by Act No. 48 / 2002 Coll.). This specifically means, for the case at hand, that the effects of the annulment of the contested provisions cannot be seen in any way in relation to the services which were provided by the residential social services before the enforcement of this finding, as they were carried out in relation to health services in a situation where the legislation which the Constitutional Court only subsequently found to be unconstitutional and unlawful. Therefore, it can in no way be concluded from the deregulation of the contested provisions of Decree No 273 / 2015 Coll. carried out by this finding that the establishments in question provide the services unlawfully paid or that those services should not be reimbursed by health insurance companies during the evaluation period of 2016.
President of the Constitutional Court:
JUDr. Rychetský v. r.
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Regulation Information
| Citation | The Constitutional Court found No 8 / 2017 Coll., on the application for annulment of Section 4 (2) and Annex 1 (B) (2) (b) of Decree No 273 / 2015 Coll., on the determination of the value of the item, the amount of the fees paid and the regulatory restrictions for 2016 |
|---|---|
| Regulation Type | - |
| Author | - |
| Collection | Code of Laws |
| Date of Promulgation | 13.01.2017 |
|---|---|
| Effective from | - |
| Effective until | - |
| Status | Valid |
The regulation text is for informational purposes only.
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