Proposal That Repeal Of Section 17, Paragraph 5 Of The Act. Public Health Insurance

Original Language Title: Proposal To Repeal § 17 Paragraph 5 Of The Act. Public Health Insurance

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=49416&nr=167~2F2000~20Sb.&ft=txt

167/2000 Sb.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court decided on 23 June. May 2000 in case proposal III. the Senate

The Constitutional Court on the repeal of section 17(2). 5 of Act No. 48/1997 Coll., on

public health insurance and amending and supplementing certain

related laws, as amended, as follows:



The provisions of § 17 paragraph. 5 of Act No. 48/1997 Coll., on public health

insurance, as amended, on 31 December. December 2000

repealed.



Justification



(I).



The constitutional complaint, the complainants. H. f. and spol. seek the annulment

article. 1 and 8 of the decision of the Government of the day 23. June 1999 on the values of point and

the amount of reimbursement of health care paid for by public health insurance,

which he feels to be offended in their fundamental rights and freedoms

resulting from the article. 26 paragraph. 1 and article. paragraph 41. 1 and further from the article. 1, article. 2

paragraph. 2 and 3, article. 3 (3). 1 and article. 4 (4). 1 of the Charter of fundamental rights and

freedoms (the "Charter"), as well as from the article. 26 of the International Covenant on

Civil and political rights (case is conducted under SP. zn. III. THE TC

407/99).



The complainants explain its active evidence pointing to the fact

they are natural and legal persons providing specialised

medical outpatient care under Act No. 160/1992 Coll., on health care

in non-State health establishments, as amended.

Constitutional complaints are challenging the Government decision issued on the basis of

the provisions of § 17 paragraph. 5 of Act No. 48/1997 Coll., as amended

regulations and in it fro the public authority intervention pursuant to article. 87

paragraph. 1 (a). (d)) of the Constitution of the Czech Republic (hereinafter referred to as "the Constitution"). According to their

opinion of the Government, the Ministry of health, and even in the meaning of

the existing case law of the Constitutional Court, in the case in

the status of the public authority, when a Government decision identified the amount of

implementation of contracts and payment of health care between the complainant

and health insurance companies, which had authoritatively and legally

intervene in the legal sphere. According to the complainants referred to

the Government's decision cannot in any way be considered as a result of the implementation of the

právotvorné powers, and thus for the podzákonný of legislation, in particular

Therefore, it does not have a mandatory legal form of podzákonného law

issued by the Government, and that the form of the Regulation (article 78 of the Constitution), it also does not meet the

the basic character of the content of the legislation, because it is not normative, but

only a single character. Although in the introduction to the text of the decision is

given that the Government has decided in its resolution, the use of the term in the resolution

this connection, however, according to the beliefs of the complainants does not mean that it is

only the internal decision or decision concerning the internal adjustments

the running of Government work, because it will interfere with the rights of third persons. From the above

referred the complainants regarding the legal nature of the contested decision of the Government

It was a conclusion, according to which this decision is neither a legal regulation,

Neither the internal resolution, but is the administrative decision are eligible

intervene in their constitutionally guaranteed rights, therefore it has a legal nature

the intervention of a public authority, according to the article. paragraph 87. 1 (a). (d)) of the Constitution.



In terms of compliance with the conditions of filing a constitutional complaint, refer

the complainants on the provisions of § 248, paragraph. 3 and Annex A of the

Regulations (hereinafter referred to as "the service"), by which the decision on the regulation of prices from

Act No. 526/1990 Coll., on prices, as amended,

are not subject to judicial review. In addition, the complainants are convinced that

the constitutional complaint goes beyond the meaning of their own interests, if

by the contested decision of the Government to be without prejudice to the fundamental rights and freedoms

more than 8 500 non-State health establishments, and thus are given by

the conditions of discussing and according to section 75, paragraph. 2 (a). and Act No.)

182/1993 Coll., on the Constitutional Court.



The unconstitutionality of article. 1 of Government decision fro the complainants

in violation of constitutional laws and international treaties according to the article. 10 the Constitution

guaranteed equality in the business. For the fulfillment of conditions inconsistent with the article.

26 of the Charter in conjunction with article. paragraph 41. 1 of the Charter refer to its contradiction

in particular, with the law No. 20/1966 Coll., on the health care of the people, in the text of the

amended, no. 526/1990 Coll., as amended, no.

220/1991 Coll., on the Czech Medical Chamber, the Czech dental Chamber and

The Czech Chamber of pharmacists, as amended, no. 160/1992 Coll.,

health care in non-State health establishments, as amended by

amended, and no. 48/1997 Coll., as amended.



Referring to the Bill of the Ministry of finance 01/99, which publishes a list of

goods with regulated prices, according to the section 4 between the goods for which the

apply officially set prices, health care is also to be paid by

health insurance, which is provided by the participant of a public

health insurance or health insurance contract, the participant

consider the complainants contested the Government's decision for the price regulation

According to the law on prices. They point to the contradiction of the Government's decision of

on 23 December 2005. June 1999 on the values of the point and the amount of reimbursement of health care

paid from public health insurance with the provisions of section 2 (2). 3 and

§ 16. 2 of the Act on prices, as well as section 2 of Decree No. 580/1990 Coll.

implementing the law on prices, which in non-compliance with the structure

regulated prices, which includes legitimate costs and a reasonable profit. In

this connection point to the inequality in relation to the determination of the

the maximum prices of domestic medicinal products and medical devices according to the

assessment of the Ministry of finance, 6/16/1998.



The complainants also note the adverse economic effects of this price

Regulation, as well as a possible reduction in the availability of health care.



See also inequality compared his own position with the position

health insurance, while according to the case-law of the Constitutional Court

the absence of any justification for such a distinction argued.



In addition, the constitutional complaint, the complainants argue that the Government, in the contested

the decision exceeded the framework as defined by the provisions of § 17 paragraph. 5 of the law on

public health insurance, when in addition to the determination of the value of the item and the amount of

reimbursement of health care costs of health insurance and other established

limits, and that the time limit and the limit of the quantities, and of their established and

cant declared health care. They point to possible further absurd

the consequences of the decisions contained in the edit, when medical facilities in

compared the period for various reasons (long term work

the inability of the long-term vacation, etc.) fallen short of the limit, and then

only a very small volume of health care.



The obligation to provide quality health care, for example. with regard to the

the provisions of § 11 (1). 1 (a). (b)) of the Act on public health

insurance, then the opinion of the complainants in the case of the determination of the limits of the

either the need to work for free, or to move to a lower value

point, and for the same job receive about one-fifth less income.



In the context of the article. 8 the decision of the Government to point out the complainants on his

contradiction with section 40 paragraph. 2 of the Act on public health insurance, when

the coverage of emergency care in non-medical

the Government provides for a lower payment devices, than is defined for the case

the contractual arrangements between health insurance and health care

device.



Of all of the above reasons, the complainants are proposing the repeal of article. 1 and 8

the Government's decision of 23 December 2003. in June 1999, about the values of the point and the amount of payments

health care paid for by public health insurance.



On the basis of a challenge to the Constitutional Court under section 42, paragraph. 4 and section 76, paragraph. 1

Act No. 182/1993 Coll., as amended, filed by the Government to

the constitutional complaint comments. It expresses the belief that the adoption of the

the contested resolution in any way and could not even touch

the rights of the complainants a business resulting from the article. 26 paragraph. 1 of the Charter when

It was issued on the basis of the Act on public health insurance, i.e.. to

ensuring the basic rights arising from article. 31 of the Charter. The Government is

considers that the establishment and functioning of the public health insurance,

as is apparent from the article. 31 of the Charter, is not related to business law guaranteed by article.

26 paragraph. 1 of the Charter. However, the Government considers it a valid legal regulations,

enabling of public health insurance to pay for health care

the citizens of the State and non-State health establishments under

satisfying, in its opinion, would not be in contradiction with the Charter, if

in the extreme case law has restricted the provision of free health care

so, that would be provided only in the network of "public" health care

the device completely without the ability to create in its provision of the profit. In

in this context, at the oral proceedings by the Government was emphasised

the fact that neither of the Basic Law on business according to article. 26 paragraph. 1

The Charter does not imply the right to profit. The Government in its comments on

considers that in adopting the contested resolution or hurrying praeter

legem, as adopted by the resolution on the basis of the statutory authority contained in the
the provisions of § 17 paragraph. 5 of the Act on public health insurance. The Government of the

However, when making its decision on the item and the amount of reimbursement values health

care paid from health insurance limited indirectly, payment

health insurance options, which is dependent on the amount of rates

health insurance premiums provided for by law No.

592/1992 Coll., on premiums for general health insurance, as amended by

amended. This power is in the opinion of the Government of the expression

rational and constitutional considerations that timely conformist decisions about values

point and the amount of reimbursement of health care is necessary, because otherwise it would have been

threatened by the implementation of the constitutionally guaranteed rights of citizens to free

health care on the basis of public health insurance.



The Government is confident that its resolution is the procedural and

the content in accordance with the legal mandate and that of the scope of the authorisation

nevybočila. In this context, he points out, even on the Constitutional Court of the

25 June. October 1995, promulgated under no. 271/1995 Coll., which

i fleshed out the principles that should be basically valid for the

case. The Constitutional Court in that case held that if the ACP governments in

accordance with the Constitution, constitutional acts, international treaties under article.

10 of the Constitution and the laws, it is also an assessment of the factual accuracy and effectiveness

the decision of the Government outside the competence of the Constitutional Court; as for the Act, which is

"the expression of the efforts on the harmonization of public interests with the interests of vested" and "is

undeniable that in dealing with these complex issues can be hardly found

solution, which will be without any contradictions, and comments. It is for the

the Executive order to all weighing for and against has released the final decision,

and there is no doubt that the Constitutional Court are not eligible for this sphere of the Executive

to be able to intervene. The Government's responsibility for possible negative consequences

such a decision is the responsibility of the political, not the

legal responsibilities. "



With regard to the just mentioned line of argument is Government of the opinion that

the contested resolution did not intervene into the constitutionally guaranteed rights of the complainants, and

therefore does not consider that it has caused the situation, which is not compatible

with the principle of the rule of law enshrined in article. 1 of the Constitution.



Whereas, in its belief that in the framework of the mandate

the Act on public health insurance, adopted on 23 December 2005. June

1999 resolution No. 657 to determine the values of the point and the amount of the reimbursement of medical

care paid for by public health insurance for 3. and 4. quarter

1999, in any way impair the rights of complainants under the article belongs. 2

paragraph. 2 and 3, article. 26 paragraph. 1 of the Charter and article. 1 and article. 2 (2). 4 of the Constitution,

the Government proposes that the constitutional complaint against the abovementioned resolution of the Government of

was rejected.



At a hearing in the matter of the constitutional complaint, held April 2. December

1999, the complainants were submitted to the Constitutional Court as evidence the current

Information Institute of health information and statistics of June 11. October

1999 (No. 277, 278) related to the increase in income from health insurance companies

in the first half of 1999 as compared with 1998 and half and further development

the cost of health insurance companies in 1997 and 1998. In reply, the representative of the

the Government, its Deputy Chairman JUDr. Pavel Rychetský, stressed the

the fact that the indicators could be in the contested resolution

Government account, since at the time of its preparation have not yet been to the

available.



II.



III. the Senate's Constitutional Court when hearing this constitutional complaint

He came to the conclusion that section 17(2). 5 of Act No. 48/1997 Coll., as amended by

amended, is inconsistent with article. 78 of the Constitution. Under section 78, paragraph. 2

Act No. 182/1993 Coll., therefore its resolution of 2 December 1996. December 1999 No.

(j). III. TC 407/99-291 interrupted the proceedings and presented a plenary session of the Constitutional Court

the proposal to repeal section 17 paragraph. 5 of Act No. 48/1997 Coll., as amended by

amended.



III.



According to § 42 paragraph. 3 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court, the present proposal from the Chamber of Deputies. In

its representation of the President of the Chamber of deputies of the Parliament of the Czech Republic

Prof. Ing. Václav Klaus, CSc., the introduction explains the reason for the adoption of the

the legal adjustment, which was the fact that the legislation of the conciliation

management did not include solutions to the situation, when between health insurance companies, and

representatives of the health care providers are not in agreement. For the purpose of

the solution to this situation, the Government submitted the amendment to the Act on public

health insurance proposed to entrust decisions in these circumstances

on the value of the point of the Ministry of health, taking such decision

It would be published in the journal of the Department of health. When

discussing the Government's proposal, the House of Commons identified instead of

The Department of health under the authority empowered to decide for the listed

the conditions of point on a Government that does so on the proposal of the Ministry of

health care, and this decision of the Government shall be published in the journal of the

The Ministry of health. In further draws attention to the

the fact that the law on public health insurance does not modify the way

the publication of the Government's decision about the value of point in the Journal of the Department of

health care, with the announcement and publication of the decision to the fabric of the

the Government is regulated by other legislation, for example. The Constitution and the law on

The collection of laws. This is then dovozován conclusion, according to which the provisions of the

§ 17 paragraph. 5 of Act No. 48/1997 Coll., as amended, is not

contrary to the article. 78 of the Constitution, if this provision merely guarantees

the publication of either the agreement or the decision of the Government about the values of point and the amount of

reimbursement of health care costs of health insurance, but does not mention,

that a particular Government decision on prices in health care is to be

published in the journal of the Department of health only and shall not affect the

the obligation of the Government to simultaneously published its decision in the form of

the regulation on the collection of laws.



The President of the Chamber of deputies also confirmed, in accordance with the requirements of

contained in the provisions of section 68, paragraph. 2 Act No. 182/1993 Coll., Act

No. 2/1998 Coll., amending and supplementing Act No. 48/1997 Coll., on

public health insurance and amending and supplementing certain

related laws, as amended by Act No. 242/1997 Coll., has been approved

required majority of members of the legislature, was signed by the

respective constitutional factors and properly declared. In conclusion, the expression is

provided, that the legislature, in adopting the present

the statutory provisions of the Act in the belief of its compliance with the Constitution,

the constitutional order and the rule of law, the Constitutional Court, in order to

brought on the proposal to examine and issued the appropriate decision.



According to § 42 paragraph. 3 and section 69 of Act No. 182/1993 Coll., as amended

the rules, posted by the Constitutional Court of the present proposal and the Senate of the Parliament of the Czech

of the Republic. In its comments of his chair PhDr. Libuše Benešová

explains the reason for the adoption of legal provisions, and that accordingly,

in this context, has made the Chamber of Deputies. Participant management

further justifies the role of the State in determining the value of the item and the amount of the payments

the health care costs of health insurance. With reference to the article. 31

The instruments in this context infers a conclusion, according to which, when

interests of citizens during the negotiations about the price of health care represent only

health insurance is necessary to allow the State to intervene effectively in the

cases, when health insurance companies because of their advocacy group

financial interests are not able to represent the interests of the policyholders and not

interest group of health care providers is not accessible to the agreement,

or in the case, if made to the legislation or agreement contrary to the

the public interest.



In the statement also notes that the draft law, amending and

following the law on public health insurance, the Senate discussed on their

9. the meeting of the (term) on 12 June 2006. and 13. November 1997 and 67 votes

senátorek and the senators, when no one from the senátorek and senators was not against,

adopted a resolution No. 140 return the present proposal in the House of representatives

the text of the adopted amendments. The Senate did not find grounds for so doing,

for that would not consent with the proposed wording of the provisions of section

17 paragraph. 5 of Act No. 48/1997 Coll., as amended, when

fully aware that, in the event that the parties to the conciliation

agree on the values of the point and the amount of compensation, it would be the realization of a constitutionally

the guarantee of the right to free health care on the basis of public

health insurance at risk. The permission of the Government to decide, under the conditions

laid down by law the Senate understood not as a decision of the Government having

normative character within the meaning of article. 78 of the Constitution, but as the decision

"an independent arbitrator" in contract law is not unique (e.g..

decision of the arbitrator in a proceeding on the conclusion of a collective agreement, the management

before the arbitrators, etc.). At the same time as it was a State-guaranteed

implementation of the constitutional law and the management of public funds, the Senate

aligned with the opinion of the Chamber of Deputies, in the present case, the
decisions by the Government. In addition, the opinion is contained, according to which, if

would the legal provisions should be repealed and the Government should be

empowered to implement the law and within the limits of the values of the point and the issue

the amount of reimbursement of health care legislation in the form of a regulation, would not have been

at the same time maybe construction conciliation of the same variables, as

implementation of the responsibility of the Government cannot be caught by the conciliation

the proceedings.



The Constitutional Court also requested as documentary evidence from the Chamber of Deputies

the Chamber of Deputies and the Senate of the relevant Council publications and news from těsnopisecké

meeting of both chambers of Parliament.



At the oral proceedings held on 23 December 2005. in May 2000, were as witnesses

heard Prof. MUDr. Bohumil Fišer, Minister of health, CSc., Ing.

Jiřina Musílková, Director of the general health insurance company, and MUDr.

Jaroslav Henzl, Chairman of the Association of private practitioners and entrepreneurs in the

health care. From the testimony of witness to the course of the conciliation procedure

between health insurance companies, and representatives of the medical

device for the determination of the value of the item and the amount of reimbursement of health care paid for by

from health insurance, it was found the following: Prof. MUDr. Bohumil

Fisher, CSc. and Ing. Jiřina Musílková, in their testimonies

in particular, the justification for the said period of six months to determine the values of point and

the amount of the reimbursement of health care costs of health insurance, which stems from

the changing situation in the choice of insurance, further clarify the way

interpretation of the disagreement, the participants in the conciliation procedure, which is given in the

If any of the health insurance companies, in the

any segment of the health care provided. To query the Court Ing.

Jiřina Musílková, confirmed that, in the course of the conciliation proceedings

The Ministry of health has the role of an arbitrator. In the testimony.

Jaroslav Henzla was included in particular the voucher on the unequal position of

representatives of the medical devices in relation to health

insurance companies in conciliation, for the statement of disagreement

It is sufficient to oppose a single health insurance company, on the side of the

However, the opposition of the medical equipment of at least one-third of them.



IV.



The Constitutional Court first examined under section 68, paragraph. 2 of law No.

182/1993 Coll. was adopted and issued the contested act within the limits of the Constitution

established competence and constitutionally prescribed way.



From the Council prints and těsnopiseckých reports, it was found

that meeting, to which the law voted, he participated in a sufficient number of

Members, or senators. After the Senate returned the draft of the

the Chamber of Deputies, this Act on it in the text which was

referred to the Senate, she, and it even has repeatedly after his return

the President of the Republic. The law was adopted by the requisite number of votes

(if the date of October 23, 1997 in the Chamber of deputies from the present 189

MPs voted for him voted 128 29 members, 13 June 2005.

November 1997 in the Senate from the present 70 Senators to return design

The Chamber of Deputies voted 67 Senators vote against nobody, day,

December 2, 1997, of the 183 present deputies voted for the proposal of 171

the law, in the version in which it was sent to the Senate, 9 votes

against and 13 June. January 1998 of 192 MPs voted 114 to

staying on the President of the Republic, law returned 47 members

voted against). The law in question was signed by the respective constitutional

agents and has been properly declared in the amount of 2/1998 Coll., which was circulated to

27 June. in January 1998, and that date took effect.



In the.



The diction of the provisions of section 17(2). 5 of Act No. 48/1997 Coll., as amended by

amended, whose constitutionality is the Constitutional Court considered in

control of inspection standards, is the following: "the value of the item and the amount of payments

the health care costs of health insurance, agree in

representatives of the conciliation



and general health insurance company) of the Czech Republic and the other

health insurance companies and



(b) the relevant professional associations, providers) as representatives of the

of the medical device.



The result of the conciliation procedure shall assess the Ministry of health of the

for compliance with the law and the public interest and will announce it in the

Journal of the Department of health. If no conciliation to

the result within 15 days before the end of the effectiveness of past results

the conciliation procedure or if the result of the conciliation procedure will be

oppose legislation or public interest, the Government of the Czech Republic

decides on a proposal from the Ministry of health about the values of the point and the amount of

reimbursement of health care costs of health insurance; the decision shall

be published in the journal of the Department of health. "



Referred to the diction of is given by the law on the amendment of the public health insurance no.

2/1998 Coll., which replaced the text, according to which "the result of the conciliation

control of prices in health care will be assessed for compliance with the

the law and the public interest by the Ministry of health and

The Ministry of finance, which then releases it as price assessment. " The cause of the

the changes, which is articulated in the explanatory memorandum to the amendment, as well as

in the observations of the interested party, was the absence of a mechanism for decision making

the value of the point where the price negotiations between the parties does not

the agreement.



According to section 10 of Act No. 526/1990 Coll. of the goods, for which the regulation applies

price according to § 5 and 6 of the Act, classified the price authorities of the decision

to the list of goods with regulated prices, while the prices in the list and its

the framework provided and goods for which price regulation applies pursuant to section 8 of the

of the Act, to be published in Journal of the price authorities. Price

the authority competent to decide on the regulation of prices is according to § 2, 2a and 2b

Act No. 265/1991 Coll., on the scope of the authorities of the Czech Republic in the area of

the prices, in the wording of later regulations, the Ministry of finance.



The provisions of § 17 paragraph. 5 of the Act on public health insurance

Thus, in relation to the law on prices of lex specialis, as for

the area of the regulation of prices, which are expressed in the value of the item and the amount of payments

the health care costs of health insurance, lays down specific

procedure, decision confers on the Government (and not the Ministry of finance, as

This is according to the law on prices) and in a different way and regulates the form of the

the result of this decision (as the decision is posted

in the journal of the Department of health).



You cannot, and even because of, which resulted from the course of the oral proceedings,

přisvědčit opinion of the Chamber, from which in the case of decisions of the Government of

the value of the item and the amount of reimbursement of health care is a decision

"an independent arbitrator" in contract law is not unique (e.g..

decision of the arbitrator in a proceeding on the conclusion of a collective agreement, the management

before the arbitrators, etc.). The Czech legal order knows the arbitration on the one hand by

the Act No. 216/1994, Coll., on arbitration proceedings and enforcement of arbitral awards,

and, secondly, pursuant to Act No. 2/1991 Coll., on collective bargaining, as amended by

amended. In the case of the first is the condition of the arbitration

the conclusion of the arbitration agreement (according to § 2 of the Act), it therefore

There is no prejudice of freedom of contract. If the second is true according to § 13

paragraph. 1 of the law on collective bargaining as well as the principle of condition

the agreement of the parties to the arbitration. Only as an exception under § 13

paragraph. 2 arbitration occurs even in the case where a Contracting

the parties agree, in the case of a dispute about the performance of the obligations of the collective

the Treaty (which is not the case under consideration the analogy) or if it is a dispute about the

the conclusion of the collective agreement resulting in the workplace, where it is forbidden to

strike (section 20 of the Act on collective bargaining). Even in that one

the case of the arbitration prolamujícího the principle of contractual freedom is, however,

his sense of the replacement Contracting will (section 13 paragraph 6), which shall be subject to

judicial review (section 14) and for which the process is modified (section 13 and

14).



In the assessment of the legal nature of the decision of the Government, therefore,

It offers a double possibility: the first is the qualification of private law, according to which the

This is the arbitration and the position of the Government is the position of an arbitrator.

The second is the qualification of public law, according to which the determination of the value of the point

price regulation. The Constitutional Court interpretation first refuses, since

the provisions of § 17 paragraph. 5 of the Act on public health insurance

nezakotvuje position of the Government in the function of an arbitrator, does not express it

maximum connected, according to which the decision of the arbitrator shall be replaced by the manifestation of the will of the

of the parties, the decision of the Government is not subject to the agreement of the Contracting

of the parties, its content according to the Act on public health insurance is

the application of the public interest and, finally, is not subject to, as is the case in arbitration

the usual procedure, judicial review.



In this context, underlined that the mere interpretation cannot be

establish the presence of the procedural legal institutions.



The Constitutional Court also does not share the opinion of the Chamber, from which the normative decision

a public authority cannot follow after an unsuccessful conciliation

the Contracting Parties, such as the construction of limited his

the power. If they correspond to the conditions laid down by law, there is no reason
nezakotvit price regulation only in the position of subsidiárním, IE. only

in case if there is no agreement of the parties, and it is also not the reason

in such adjustment found inadmissible restriction of the powers of the State

authority.



If this is a representation of the Chamber of Deputies, according to which the publication

the Government's decision in the journal of the Department of health has only

informative character, while the Government's decision according to § 17 paragraph. 5

the Act on public health insurance, in the meaning of the Constitution and the law on the

The collection of laws should be taken in the form of a regulation and posted in a

The collection of laws, to be given two notes: the first is an empirical fact,

the Government still hurrying this way (and even in the decision

as for the first half of the year 2000), the other then that

the said interpretation leads to the conclusion on invalidity taken so far

the decision of the Government according to the statutory provisions referred to the impact of

the invalidity of the concluded contracts on all in the field of public health

insurance between private doctors or medical devices and

health insurance companies, respectively. their part of the price adjustment

the relevant procedures of healthcare.



According to the article. 78 of the Constitution, the only form of legal normative act, which is

the Government is entitled to receive, is regulation, and with the condition of publication in the

The collection of laws. In the case in question arises therefore a discrepancy between legal normative

the content of the Act of the Government and the absence of appropriate legal form.



The concept of the rule of law, which is their constitutional enshrinement in the article. 1

It follows the principle of the Constitution, according to which neither the legislature nor the Executive Branch

not with the forms of law, i.e.. with the sources of law, to dispose freely, but

must follow aspects of the ústavodárce, as well as aspects of the other, in particular

transparency, accessibility and clarity.



The basic question of the present case, the assessment of the legal nature of the

the Government's decision about the value of the point. In this context, it should be in the first place

point out the finding of the Constitutional Court of 17 December. February 1999, SP. zn. II. THE TC

53/97 (TC, vol. 13, no. 26). The case was before the courts for the General

the dispute about the performance of contracts for the supply of gas, when the price was fixed

price regulation (výměrem of the Ministry of Finance). The Constitutional Court in the

justify its decision responded primarily to argument

the claimant, according to which the case was ordered to the general courts

comply with the legal provisions of lower legal force than laws, without the

contractually committed or has been advised of such obligations:

"The obligation of the claimant has support directly in the law on prices and

the civil code, not in the price assessment. In the case of the determination of the

the specific amount of the prices, however, should be noted that the legislation below legal

power point. At this point, the Constitutional Court came to a different conclusion than the

the plaintiff and general courts. It is a decision of the price authorities, which

participants must respect the obligation relationship. Do not, however, the character

legal regulation. Reference should be made to section 3 (3). 2, § 7 (2). 2 and § 10

the law on prices. There are no in the collection of laws under section 2 of Act No.

545/1992 Coll., on the collection of laws, section, paragraph 248. 3. service excludes

(annex and s. l.) of judicial review under the administrative justice

the decision to regulate prices, pursuant to section 3 of the Act on prices. On this, their

the character does not change anything that is related to the large number of bodies. You, however,

they are not obliged to follow this pricing decision itself, but by law,

that they are obliged. "



The Constitutional Court, however, in connection with the things at hand, be considered reasonable

from the legal opinion contained in the said award. According to the opinion of the

contained in the finding in case II. TC 53/97 price assessment is the administrative

decision, and not the law, and for the following reasons:



-There are no price, acreage in the collection of laws, and therefore do not meet the

formal character required by law on the collection of laws for the legislation,



-since according to Section 248, paragraph. 1. l. nepřezkoumávají, the courts generally

binding (canonical) acts and if according to Section 248, paragraph. 3 in connection with the

the annex and s. l. from judicial review under the administrative justice

are excluded the decision to regulate prices, pursuant to section 3 of the Act on prices, can be

of these, the premise of the inferred conclusion, according to which, in the case of the price assessment is

This is an administrative decision (and regardless of generality),



-the third argument is the concept of the sources of law, according to which, in the case of

the reference contained in the Act (in this case is a special case

standards that reference standard enabling) on good manners, usage, or

the legal act of a general nature that does not meet a condition of publication in the collection

laws, is the only source of law standard.



Plenum of the Constitutional Court according to the beliefs of the classification of sources of law must be

unwind in the first place from the content of the law, which is being created

by abstracting from different parts of a single law, or of the

many of the laws, or different forms of the sources of law [in this

the context can be used to refer to the finding in the matter of sp.. PL. ÚS 33/97 (No.

30/1998 Coll.; A collection of TC, sv. 9, no. 163), in which the Constitutional Court admitted

the nature of the sources of constitutional law and legal principles]. The decision of the Government

According to § 17 paragraph. 5 of Act No. 48/1997 Coll., as amended,

to be considered the replacement of the expression of the will of the parties to the Act

the State's authority, which is General, i.e.. has legally prescriptive content. The degree of

the generality of its own legal standard is defined by law

Specifies your subject and entities as classes definičními characters, and not

by specifying the (list of) their elements.



If the content of the components of legal standards is contained in the spring, on which

enabling standard refers, must also be considered a form of this source

rights. Furthermore, in the present case there was a conflict between the legal obecností

the Act and the nekorespondující form. From this perspective, should be considered as

for improper construction of the provisions of § 248 o. s. l., in the situation

such a breach of the Constitutional Court gives priority to the assessment of the content before

mechanical acceptance form.



On the basis of that argument, as a result of conflict with the article. 78 of the Constitution,

The Constitutional Court, the provisions of § 17 paragraph. 5 of Act No. 48/1997 Coll., as amended by

amended, set aside.



To determine the effective date of the award according to § derogačního, paragraph 70. 1 of the law

No. 182/1993 Coll. on day 31. December 2000 led the Constitutional Court of the need to

the Parliament of the Czech Republic to provide enough time for the constitutionally

the necessary implementation of the existing legal provisions, when the Court considered

necessary to take account of the adverse impact of the immediate abrogation, which would

the absence of a mechanism for decision-making has caused the value of the item and the amount of payments

the health care costs of health insurance in the event of disagreement, the

participants in the conciliation procedure, in the case of breach of such an agreement with the

the rule of law or the public interest. This circumstance has become the reason

for that, the Constitutional Court could not apply the provisions of section 70 paragraph. 3 of the law

No. 182/1993 Coll., according to which, if a law or its individual

the provisions, which the Constitutional Court, were issued the implementing rules,

The Constitutional Court in the award at the same time, that the implementing provisions,

where appropriate, that their individual provisions shall cease at the same time

the validity of the Act. In the present case, namely the date of 31. December 2000

the Government's decision to establish the value of the item and the amount of reimbursement of health care

paid for by the health insurance for the first half of the year 2000 issued by the

According to § 17 paragraph. 5 of the Act on public health insurance, which was

adopted by resolution of the Government of 22 July. December, 1999 under no. 1374, already

It will not be valid. The Government's decision to establish the value of the item and the amount of the payments

the health care costs of health insurance for the second half of the year

2000, which will be effective on the date of abrogation of § 17 paragraph. 5 of the Act on public

health insurance, however, not yet released, and therefore cannot be disturbed.

In these circumstances, the Constitutional Court is to appeal to the Government to

already before the entry into force of this derogačního statement award in the

deciding on the value of the point and the amount of reimbursement of health care costs

health insurance respect the article. 78 of the Constitution, as well as to the principle, according to the

which neither the legislature nor the Executive Branch cannot with the forms of law, i.e..

sources of law, to dispose freely, but must be guided by considerations of

ústavodárce, as well as other considerations, in particular transparency,

accessibility and clarity.



Beyond the reasons for forming the ratio decidendi, the Constitutional Court shall be considered as

needed, as obiter dictum, to include the following: a necessary

part of the democratic rule of law and the protection of the freedom of contract is

the will, which is a derivative of the constitutional protection of the rights of ownership according to the article. 11

paragraph. 1 of the Charter (the basic component is ius disponendi). Price

the regulation is therefore an exceptional measure and only for completely akceptovatelným

the limited conditions.



However, the basic rights contained in the article. 26 paragraph. 1 of the Charter can be in

the meaning of the article. paragraph 41. 1 of the Charter to claim only within the limits of the implementing

the law, for the legislature, or the legislative authority applies for this case

limit provided for in article. 4 (4). 4 of the Charter, according to which when using the

the provisions on limits of fundamental rights and freedoms must be investigated their
the essence and the meaning of. The State (public) Regulation, and that, on the basis of

taking into account all relevant factors (in the area above the selected

premiums, the amount of costs in the provision of health care, etc.), must, when

the determination of the prices take into account the possibility of making a profit. The result of the absence of this

maxims in regulating prices can become disabling specific areas

business activities and the creation of a State monopoly, that is. prejudice to the

the essence and meaning of basic rights resulting from the article. 26 of the Charter.



The President of the Constitutional Court:



JUDr. Kessler v. r.