In The Case Of The Proposal On The Abolition Of Certain Parts Of The Act No. 261/2007 Coll.

Original Language Title: ve věci návrhu na zrušení některých částí zákona č. 261/2007 Sb.

Read the untranslated law here: https://portal.gov.cz/app/zakony/download?idBiblio=67208&nr=251~2F2008~20Sb.&ft=txt

251/2008 Sb.



FIND



The Constitutional Court



On behalf of the Czech Republic



The Constitutional Court ruled June 20. May 2008 in the composition of Stanislav Package

(Judge-Rapporteur), Francis Skinner, Vlasta Formankova, Turgut Güttler,

Pavel Holländer, Ivana Janů, Vladimir Crust, Dagmar Lastovecká, Jiří

Mucha, Jan Musil, Jiří Nykodým, Pavel Rychetský, Miloslav Výborný,

Elisabeth Wagner and Michael Židlická of the proposal 1. a group of 67 members

The Parliament of the Czech Republic, represented by Member of Mgr. Michal Haškem,

2. a group of 43 members of Parliament of the Czech Republic, represented by a member of the

JUDr. Vojtech Filip, and 3. a group of 19 Senators of the Parliament of the Czech

Republic, represented by JUDr. Kateřina Šimáčkovou, barrister, based

Deuteronomy 17, 612 00 Brno, on the cancellation:



points 3 and 4 of article XVII in the tenth (change of the Act on administrative

the fees), part of the fortieth (Amendment of the Act on public health

insurance), part of the forty-first (change the law about insurance on the

General health insurance), part of the forty-second (Amendment of the law on

General health insurance company in the Czech Republic), the part of the forty-third

(Amendment of the Act on departmental, industry, corporate, and other

health insurance companies), part of the forty-eighth (Amendment of the law on

the scope of the authorities of the Czech Republic in the area of prices) and parts of the fortieth

the ninth (Amendment of the Act on prices) Act No. 261/2007 Coll., respectively

the various provisions of the parts of the Act No. 261/2007 Coll.

the stabilization of public budgets,



-the provisions of section 11 (1). 1 (a). g) to (i)), section 12 (a). m), section 16a, section 16b,

§ 17 paragraph. 5, section 43, paragraph. 2 in the first sentence the words "and paid

regulatory charges under section 16a, and payments for partially reimbursable medicinal

products and foods for special medical purposes, which

be included in the limit under section 16b, paragraph. 1 "and other words in the sentence

"including regulatory charges paid under section 16a, and payments for the

partly financed by the medicines and foods for special medical

the purpose for this period ", § 53 paragraph. 1 the second sentence and the sentence at the end of the text

a third of the words "with the exception of decisions on the return of the excess on the insurance,

the reduction in advances on the premiums and payment of the amounts referred to in section 16b, "Law No.

48/1997 Coll., on public health insurance, as amended by Act No.

261/2007 Coll.



-the provisions of section 5 (a). (f)), section 7 (2). 1 (a). and the words "and to) comparison

amounts exceeding the limit for regulatory fees and supplements for medicinal

products and foods for special medical purposes partly borne from the

public health insurance or to pay a share of those

the amounts in the case of changes to the health insurance policyholder, under the conditions

laid down by a special legal regulation 1b) "Act No. 551/1991 Coll., on the

General health insurance company in the Czech Republic, as amended by Act No.

261/2007 Coll.



-the provisions of section 13 (a). (f)) and in section 17(2). 1 the first words in the sentence ", and to

the remittance of amounts exceeding the limit for regulatory fees and payments for the

medicines and foods for special medical purposes partially

paid from public health insurance or payment of shares of these

the amounts in the case of changes to the health insurance policyholder, under the conditions

laid down by a special legal regulation 1b) "the law of the Czech National Council

No 280/1992 Coll., on departmental, industry, corporate, and other

health insurance, as amended by the Act No. 261/2007 Coll.



with the participation of the Chamber of deputies of the Parliament) and the Czech Republic and (B)) the Senate

The Parliament of the Czech Republic, as a party to the proceedings, and (C)) the Group 43

members of Parliament of the Czech Republic, represented by Member of JUDr.

Vojtech Filip, and (D)), a group of 19 Senators of the Parliament of the Czech Republic,

represented by JUDr. Kateřina Šimáčkovou, barrister based Moses

17, 612 00 Brno, as minor parties



as follows:



The proposal is rejected.



Justification



(I).



The subject of the proceedings in this case



1. A group of 67 members of Parliament of the Czech Republic,

represented by a member of Mgr. Michal Haškem, the design, the examination of the

The Constitutional Court of 22 May. October 2007, is seeking under article. paragraph 87. 1 (a).

and the Constitution of the Czech Republic) (hereinafter referred to as "the Constitution") and according to § 64 paragraph. 1

(a). (b)) of the Act No. 182/1993 Coll., on the Constitutional Court, as amended

the regulations, cancellation of the entire Act No. 261/2007 Coll., on stabilisation of the

public budgets, or its individual design in closer

concretized the provisions.



2. In addition, this group of 67 members in the same proposal called for a cancellation of the

some, in the proposal, the provisions of these laws closer concretized,

amended by the Act No. 261/2007 Coll.:



-Act No. 48/1997 Coll., on public health insurance, as amended by

amended,



-Act No. 551/1991 Coll., on the Czech General health insurance company

Republic, as amended,



-Act of the Czech National Council No. 280/1992 Coll., on the departmental, branch,

corporate and other health insurance companies, as amended

regulations,



-Act No. 586/1992 Coll., on income taxes, as amended

regulations.



3. The case was initially conducted under SP. zn. PL. ÚS 24/07.



4. The resolution of the plenum of the Constitutional Court of 8 April. January 2008 no j. pl. ÚS

24/07-147 were excluded to a stand-alone management proposals for the abolition of the

parts of the Act No. 261/2007 Coll. and related possible suggestions,

concerning the content of the separate issues of financing of health

care from public health insurance, and proposals to repeal those parts of the

Act No. 261/2007 Coll., concerning the content of the separate

the issue of social security. These excluded parts

the proposals are guided by independent management under SP. zn. PL. ÚS 1/08 and PL. ÚS

2/08.



5. Under the brand pl. ÚS 1/08 is so proceeding about one of

the excluded parts, and that the application for revocation:



points 3 and 4 of article XVII in the tenth (change of the Act on administrative

the fees), part of the fortieth (Amendment of the Act on public health

insurance), part of the forty-first (change the law about insurance on the

General health insurance), part of the forty-second (Amendment of the law on

General health insurance company in the Czech Republic), the part of the forty-third

(Amendment of the Act on departmental, industry, corporate, and other

health insurance companies), part of the forty-eighth (Amendment of the law on

the scope of the authorities of the Czech Republic in the area of prices) and parts of the fortieth

the ninth (Amendment of the Act on prices) Act No. 261/2007 Coll., respectively

the various provisions of the parts of the Act No. 261/2007 Coll.

the stabilization of public budgets,



-the provisions of section 11 (1). 1 (a). g) to (i)), section 12 (a). m), section 16a, section 16b,

§ 17 paragraph. 5, section 43, paragraph. 2 in the first sentence the words "and paid

regulatory charges under section 16a, and payments for partially reimbursable medicinal

products and foods for special medical purposes, which

be included in the limit under section 16b, paragraph. 1 "and other words in the sentence

"including regulatory charges paid under section 16a, and payments for the

partly financed by the medicines and foods for special medical

the purpose for this period ", § 53 paragraph. 1 the second sentence and the sentence at the end of the text

a third of the words "with the exception of decisions on the return of the excess on the insurance,

the reduction in advances on the premiums and payment of the amounts referred to in section 16b, "Law No.

48/1997 Coll., on public health insurance, as amended by Act No.

261/2007 Coll.



-the provisions of section 5 (a). (f)), section 7 (2). 1 (a). and the words "and to) comparison

amounts exceeding the limit for regulatory fees and supplements for medicinal

products and foods for special medical purposes partly borne from the

public health insurance or to pay a share of those

the amounts in the case of changes to the health insurance policyholder, under the conditions

laid down by a special legal regulation 1b) "Act No. 551/1991 Coll., on the

General health insurance company in the Czech Republic, as amended by Act No.

261/2007 Coll.



-the provisions of section 13 (a). (f)) and in section 17(2). 1 the first words in the sentence ", and to

the remittance of amounts exceeding the limit for regulatory fees and payments for the

medicines and foods for special medical purposes partially

paid from public health insurance or payment of shares of these

the amounts in the case of changes to the health insurance policyholder, under the conditions

laid down by a special legal regulation 1b) "the law of the Czech National Council

No 280/1992 Coll., on departmental, industry, corporate, and other

health insurance, as amended by the Act No. 261/2007 Coll.



II.



Intervention and intervention



6. Participant-bidder of this procedure is a group of 67 members

The Chamber of deputies of the Parliament of the Czech Republic, represented by a member of the

Mgr. Michal Haškem. The Constitutional Court found that brought on the design meets the

all legal procedural requirements and conditions, and that therefore nothing

does not prevent the discussion and decisions of the merits of the case. Within the meaning of the provisions of section 69

paragraph. 1 of the law on the Constitutional Court are the participants in this proceeding, also 1)

The Chamber of Deputies and the Senate of the Parliament of 2) of the Czech Republic.



7. The proposal, the Constitutional Court delivered to 19 December. November 2007
demanded a repeal of the Act No. 261/2007 Coll., or its individual, in

the draft provisions have also concretized, closer to the Group of 43 members,

represented by the Member. Vojtěch Filip. This proposal, the Constitutional Court

its resolution of 23 October. 11.2007 SP. zn. PL. ÚS 28/07 according to section 43, paragraph.

2 (a). (b)) in conjunction with section 43, paragraph. 1 (a). (e) the Act on the Constitutional Court)

rejected due to obstacles to the lis pendens. The Constitutional Court has put on weight this

a group of 43 members within the meaning of the provisions of § 35 paragraph. 2 of the law on the constitutional

as the current court intervention, before the proceedings initiated on

the design of the group members ' 67. Intervener in the proceedings has the same rights

and responsibilities as participants (article 28, paragraph 2, of the Act on the Constitutional Court).



8. The proposal, the Constitutional Court delivered on 7 December. in December 2007, is called

repeal of parts of the Act No. 261/2007 Coll., concretized in the draft closer,

also, a group of 19 Senators of the Parliament of the Czech Republic, represented by the

Attorney, JUDr. Catherine Šimáčkovou. This proposal to the Constitutional Court for its

in its resolution of 12 February 2004. 12.2007, SP. zn. PL. ÚS 29/07 according to section 43, paragraph. 2

(a). (b)), in conjunction with section 43, paragraph. 1 (a). (e) the Act on the Constitutional Court)

rejected due to obstacles to the lis pendens. The Constitutional Court has put on weight this

a group of 19 senators in the meaning of the provisions of § 35 paragraph. 2 of the law on the constitutional

as the current court intervention, before the proceedings initiated on

the design of the group members ' 67. Intervener in the proceedings has the same rights

and responsibilities as participants (article 28, paragraph 2, of the Act on the Constitutional Court).



9. Submission of 21 September 2005. 11.2007 designated as "Announcement of the municipal court

in Brno on entry into the already initiated proceedings as the intervener "

The municipal court in Brno, insisted that it was according to § 35 paragraph. 2 of the law on

The Constitutional Court treated as intervener, for its

the previous proposal of 12 July. 11. the resolution of the Constitutional Court was the 2007 sp.

Zn. PL. TC 27/07 of 21 June. 11.2007 rejected for an obstacle

lis pendens.



10. In finding SP. zn. PL. ÚS 24/07 of 31 May. 1.2008 (code under no.

88/2008 Sb.) the Constitutional Court explained the reasons why with the municipal court in

Brno could be in action after the release of the resolution of the plenum of the constitutional

of the Court of 8 June. January 2008 REF. PL. ÚS 24/07-147 to continue under the SP. zn. PL.

TC 24/07 treated as intervener. In proceedings conducted under the sp.

Zn. PL. ÚS 1/08 acceded to the reasons set out in the proposal of 31 May.

January 2008, SP. zn. PL. ÚS 24/07 and the fact that the proposal for a municipal court in the

Brno applies the provisions of article. XLVI, part of the thirtieth of the Act No. 261/2007

Coll., which are not the subject of this proceeding.



III.



The plaintiffs ' argument and minor participants in compromising the constitutionally

the method of acceptance and release of Act No. 261/2007 Coll.



III/a



The arguments of a group of 67 members of Parliament of the Czech Republic

compromising the constitutionally prescribed way to acceptance and release of Act No.

261/2007 Coll.



11. A group of 67 members of Parliament of the Czech Republic, represented by the

Member of Mgr. Michal Haškem, seeks the annulment of the entire Bill No.

261/2007 Coll. on the stabilization of public budgets (hereinafter "Law No.

261/2007 Coll. "). The appellants argue that the contested Act No. 261/2007 Coll.

He was admitted-institutional manner and got into conflict with the constitutional

policy. The reasons of unconstitutionality in violation of the principle of

souladného, transparent and predictable rights, in violation of the principle of

the separation of powers and infringement of the principle of democracy, and the principles of

make up the attributes of democratic State in accordance with article. 1 (1). 1

Of the Constitution. They point to the previous case law of the Constitutional Court, which is

constitutional requirements for legislative process dealt with already in several of its

decisions, in particular in the findings, sp.. PL. TC 21/01 [collection of findings and

the resolution of the Constitutional Court (hereinafter referred to as the collection of the decision), volume 25, find

No. 14, no. 95/2002 Coll.], pl. ÚS 5/02 (collection of decisions,

Volume 28, find no 117, search. under no 476/2002 Coll.) and Pl. TC 77/06

(promulgated under no. 37/2007 Sb.) and they point out that, in adopting law No.

261/2007 Coll., these requirements were violated.



12. the plaintiffs ' Specific complaints, violations of constitutional dovozující

the rules of the legislative process (leaving aside for the moment the arguments

action against content-related violation of specific provisions of the

of the law with the constitutional order), you can briefly summarize these in particular

the claim:



1 the basic defect of the law) is that in a single novelizujícím

the law has been to link the many novels of various laws, which together

immediately, thereby violated the principles of the creation, souladného

predictable and transparent rights, which have to be weighed against not only

the amendments, but the Bills.



2) Link the complex standards-the stabilization of public budgets-is too

vague, comparable for example. "the law on changes in the legal order."



3) Adjustment contained in many of the laws is not at all

stabilization of public budgets. authorities of the alignment of the General

health insurance company or network of health care facilities.

The plaintiffs, therefore, for various reasons, after the formal page accepted

only part of the first, second, third, fourth, fifth, sixth, eighth, in part

Tenth, eleventh, thirteenth, fourteenth, twenty-third and twenty-

the fourth of the contested act.



4) in the Act are in addition to the existing laws and amendments contained three of the new

laws on environmental taxes, which contradicts the mj. Legislative rules

the Government.



5) in the form of amendments to the Act have become part of the so-called.

"poor", which does not hold water when considering the content and purpose of the original

the draft law and draft amendments: a new system of regulation of drug prices,

the law on accounting and the law on prices. Amendments may be to blame

the shortness of the time to study the other members and to inform the public.

Limited by the parliamentary debate as a form of transparent

governance and control of the opposition and the public. For the so-called. the "poor" are

further expressly considered: 1. in the fourth (Amendment of the Act on tax on

value added) in the article. VIII-points 1, 3, 4, 5 and 15 to 21; 2. in part

the tenth (Amendment of the law on administrative fees) in the article. XVII-paragraphs 3 and 4;

3. in the twenty-second (Amendment of the Act on organisation and implementation

social security) in the article. XXXV-points 1, 2 and 12; 4. in the twentieth

the fourth (Amendment of the Act on pension insurance) in the article. XXXVIII-points 1, 2,

3 and 5; 5. in part a of the fortieth (Amendment of the Act on public health

insurance) in the article. LXIV ...-points 1 to 9, 14 to 17, 24 to 26, 29, 30 and article.

LXV (transitional provisions); 6. in part forty-eighth (Amendment of the law on

the scope of the authorities of the Czech Republic in the area of prices)-article. LXXV and LXXVI; 7.

in the forty-ninth (Amendment of the Act on prices)-article. LXXV; 8.

part of the 50th (Amendment of the Act on accounting)-article. LXXVIII. The Appellants

the attention in particular to the Constitutional Court's sentencing request "-to

the amendment actually only pozměňoval by the legal

editing, IE. in accordance with the requirements of the so-called. the rules of marriage, by

that amendment must relate to the same subject matter of the proposal, which is

in the legislative process just discussed, the amendment

not yaw from the limited space dedicated amendments in

the form of the extensive exceeding of the subject of the present draft law. "

The plaintiffs are reminiscent of the opinion of the Constitutional Court, that the failure of this

request occurs "-a violation of the separation of powers, with implications for understanding

making souladného, lucid and predictable law Constitutional

the Court has previously teamed up with the attributes of democratic rule of law, further to the

circumvention of the Institute of legislative initiative pursuant to article. 41 of the Constitution of the CZECH REPUBLIC and

violations of the rights of the Government to comment on the draft law, according to the article. 44 of the Constitution. "

(Constitutional Court SP. zn. PL. ÚS 77/06,. No. 37/2007 Coll.

paragraph 73).



6) amendments were not discussed in the committees of the

the Chamber of Deputies, they lack justification. Prime Minister Mirek TOPOLANEK is handed

as a member, on the basis of coalition negotiations, which, however, cannot

replace the decision of the Government as the appellant's Act.



7) in the Senate adoption of the resolution, which expressed the will of the draft law

to dwell, to silence the opposition.



8) the legislative process ought to be not only the requirements of making souladného,

predictable and transparent rights, but not the requirement of democracy.

From the article. 6 of the Constitution is clear that behind every major political

the decision has become the will of the majority. Since it is a summary of the law in question

numerous decisions intended, however, to a single final vote

most relevantly existence could not be tested.



9) the legislative power as the power to determine the content of the law, which belongs under the

article. 15 of the Constitution, the Parliament could not manifest itself and shifted to the side

the Government, or its Chairman. The Government, however, can be legitimately

strengthen the just decision of the ústavodárce, which did not happen.



10) law effective on the date of its publication, some of the provisions of this

concerns effectiveness. Due to the method of distributing the amounts of collection of laws

so were the addressees of the Act in the manner laid down by the new law, which, however,
After at least two days did not have the ability to discern. Prejudice is so problem

de facto retroactive law.



11) technically there has been the emergence of gaps in the law, because

If multiple points of adjustment with a different date of entry into force, shall apply the

the last point under the principle lex posterior derogat legi priori. This, however,

for the period from 1. January 2008 abolished the income tax rate.



the intention of the Government was 12) get Parliament under pressure, besides, there is a

short vacatio legis.



13. The plaintiffs further detail the legislative procedure in the

the adoption of the contested act and having a lot of her misconduct. Claims that

already at the stage of preparation of the law-the latest at the time of the approval of his

the proposal by the Government-originated the proposal materially inconsistent, so already for the

the legislature was the proposal for a quirky, surprising, inaccessible,

incomprehensible and confusing. The time dedicated to the formation of so comprehensive and

elaborate standards was too short and not providing sufficient space

to get familiar with the contents standards, think about all the context and for the

the democratic debate.



14. In the legislative process was said to have brought a large number of

unrelated amendments, some of them up in the final

stages of the discussions in the Chamber of Deputies, without proper justification. It

everything should have a negative impact on the ability and quality of parliamentary debate

and thus on the possibility and the quality of the public debate, the right companion

groups to make their views heard, and finally to information

the public about the ongoing political decisions.



15. Violation of the principles of the separation of powers and democracy was from

plaintiffs, strengthened by an unrelated amendments came from the

circles of Government. The President of the Government (in the position of Deputy) substantially changed the Government

Bill a few days before the final vote, without credit to members

available, the reasons for the new legislation, time to review and

discussion, let alone a real possibility for her to submit additional amendments

the proposals. The Prime Minister, or Government officials with his extensive

apparatus then absolutely dominated over the legislature, which does not have

nor sufficient professional background to support a Government proposal

in the created time constraints effectively ban face. The influence of the members of the

the legislature (and both the opposition and Government) to the specific

the form of the law was effectively minimized.



16. The fact that the Senate of the Parliament of the Czech Republic, which is controlled by the same

the political majority as the Chamber of Deputies, expressed willingness to dwell

the draft law (article 48 of the Constitution), made it impossible to debate in the full Senate;

the opposition views nor could effectively speak in the Chamber of Deputies nor

in the Senate.



17. The promoters that summarize the design and adoption of the de facto Government

(more precisely: "Prime") of the amendment, which the content

nothing to do with the master, is in contradiction with article. 1 (1). 1, article. 2 (2). 1,

article. 6 and article. 15 paragraph. 1 of the Constitution, is bypassing the legislative Institute

the initiatives referred to in article. 41 of the Constitution and contradicts the article as well. paragraph 44. 1 and article. 76

Of the Constitution. The fact that the Parliament did not take into account previous case law,

The Constitutional Court, moreover, adopted not long before the adoption of law No.

261/2007 Coll., also article has been infringed. paragraph 89. 2 of the Constitution.



18. The appellants pronounced the opinion that the procedure chosen by the Government in

hearing the contested act would, if accepted, could lead to

absurd consequences: "-in the extreme case, the Government could concentrate

Once a year all of its legislative intentions of the draft law «about editing

legal relations in the Czech Republic» or even «on improvement of the law

the fate of the citizens of the Czech Republic and force the political pressure to

the Government majority approved a draft law in this text. This would have been

a de facto influence on the content of the laws of the members of a completely marginalizován and Parliament

would become almost unnecessary. The Government should Parliament essentially needed

only for formal confirmation of their expressed will to a flat rate and could

to prevent any public parliamentary debate by the Council

most refused to admit other points on the agenda. Such a Parliament

He was no longer just a facade completely denying the principles of democracy and

the separation of powers. "



19. The appellants therefore conclude that the submission and adoption of large-scale,

the content of the inconsistent and unintelligible governmental draft Bill

contradicts the preamble of the Constitution (expressing the commitment of citizens to drive with all the

proven principles of the rule of law), as well as the article. 1 (1). 1, article. 2

paragraph. 1, article. 6 and article. 15 paragraph. 1 of the Constitution.



20. For these reasons, petit design group of 67 members contains the first

the place to request the Constitutional Court to annul the whole Act No. 261/2007 Coll.



21. If the Constitutional Court has not been cancelled, the entire Act No. 261/2007 Coll.

then a group of 67 members of Parliament proposes in the alternative small print under point (E))

cancel those parts of the Act, which are not related to its core

the subject, or the purpose of the Act. In the context of the present proceedings, now

conducted under the SP. zn. PL. ÚS 1/08, are proposed to repeal those parts

Act No. 261/2007 Coll.:



points 3 and 4 of article XVIII in the tenth (change of the Act on administrative

the fees),



-Part 40 (Amendment of the Act on public health insurance)-

articles and LXV, LXIV ...



-part of the forty-first (Amendment of the Act on general insurance

health insurance),



-part of XLII (Amendment of the Act on general health insurance company

Czech Republic)-article LXVIII,



-part of the forty-third (Amendment of the Act on departmental, civil,

corporate and other health insurance companies)-article LXIX



-part of the forty-eighth (Amendment of the law on the scope of the authorities of the Czech Republic

in the area of prices)-article LXXV and LXXVI, and



-part XLIX (Amendment of the Act on prices)-article LXXV



22. All these parts of the Act, the appellants argue that are not related to

the subject and purpose of the Act, and their adoption would require a form of

a special law. The valid legislative solution is confusing and

legislatively.



23. If the Constitutional Court has not been cancelled, the entire Act No. 261/2007 Coll.

even those parts of the Act that are designed to the cancellation in an alternative

small print under point (E)), then the Group of 67 members of Parliament proposes in the alternative

small print under point F) to repeal those sections of this Act that the Act

get the path of the amendments and to the nature of the so-called. "přílepků", IE.

do not meet the criteria of a close relationship to the subject matter of the law, but it is the de facto

on a completely different law with non-legislative master. In the framework of the

now the present management, led by under sp.. PL. ÚS 1/08, are

proposed to repeal those parts of the Act No. 261/2007 Coll.:



-in the tenth (Amendment of the law on administrative fees), article XVII

points 3 and 4



-in section of the fortieth (Amendment of the Act on public health insurance) in the

Article LXIV ... points 1 to 9, 14 to 17, 24 to 26, 29, 30 and article LXV

(transitional provisions)



-part XLIX (Amendment of the Act on prices)-article LXXV.



III/b



The arguments of a group of 43 members of Parliament of the Czech Republic

compromising the constitutionally prescribed way to acceptance and release of Act No.

261/2007 Coll.



24. One of the alternatives of the small print of the proposal contains 43 members group

also (as in the case of a group of 69 members) request

the cancellation of the entire Act No. 261/2007 Coll. for the constitutional defects

the legislative process. The arguments of a group of 43 members in that part of the

the proposal, which argues the unconstitutionality of the method of adoption and publication of law No.

261/2007 Coll., is largely the same as the argument contained in the

the design of the group members ' 67.



25. The appellants alleging law adopted by serious legislative errors.

They point out that the law is not the usual amendment to or legal standard, but

file partial modifications, representing both the amendment of several tens of

laws and amendments, which would have stood as a separate laws. Are

e.g. by them. changes in the tax laws, including the introduction of the so-called.

environmental taxes, the legislation of almost all social systems,

above all, the system of State social aid, the environment and the existential

minima, the sickness insurance system, adjustments to the salary base for

the determination of the amount of the salary of constitutional agents and prosecutors,

employment, and the regulation of public health insurance,

premiums on this health insurance, changes in the scope of ministries

AJ.



26. the Incomprehensibility of the Act is, according to plaintiffs caused by for example. by

that was cancelled, only the provisions of the Act without the prior novelizujícího

the revised law; so for example. the amendment to the Act No.

218/2007 Coll. (change the law on accident insurance and other changes

laws) yet, that law No 218/2007 Coll. at the time of the hearing of law No.

261/2007 Coll. regained effectiveness yet.



27. the discussions in the Chamber of Deputies, according to the plaintiffs '

marked by time pressure, MEPs did not have enough time to

review of the draft law as large, changing 46 legal standards.

In addition, the discussion was zkomplikováno many of the amendments,
which is mentioned in particular the amendment of Prime Minister Topolánek, who

touched 18 existing parts of the Government's draft law and, moreover,

expanded Government proposal on changes to the other three laws. Recurring proposals

more opposition members of Parliament on the extension of the deadline for consideration of the Bill or

on his return to completion were always rejected. The Senate proposal

the law, despite the resistance of the opposition.



28. The appellants argue lack the legislative process when receiving

This Bill with legislative rules of the Government (eg. with article 2, paragraph 2,

which stores to ensure that legislation was in accordance with the laws

regulations of greater legal force, and with the findings of the Court and became a Zstavního

an organic part of the whole legal system and was conceived at a glance

and formulated clearly, comprehensibly and linguistically and stylistically

perfectly).



29. The legislative process in this case disregarded the constitutional

Court SP. zn. PL. ÚS 77/06. For the so-called. "poor" deem appellants

the provisions on the management of general health insurance company, Supplement edits

the system of making payments and prices of medicines and foods for special

medical purposes on the regulation of drug prices, the introduction of the so-called. environmental taxes,

as well as the change in the legislation of almost all social systems, etc.



30. The unconstitutionality of the way the adoption and release of the Act is, in the draft

dovozována of the violation of the prohibition of arbitrariness in the legislative procedure,

resulting from the provisions of the article. 1 (1). 1 and of article. 2 (2). 3 of the Constitution. Further

It is also claimed infringement of article. 23 paragraph. 3 of the Constitution on the vow and article.

44 of the Constitution of the competences of the Government when discussing the Bills.



III/c



The arguments of a group of 19 Senators of the Parliament of the Czech Republic

compromising the constitutionally prescribed way to acceptance and release of certain

parts of the Act No. 261/2007 Coll.



31. Claimants stress that his proposal does not challenge the content

compliance of the contested law with the constitutional order, but only the way its

the approval, which they consider unconstitutional.



32. In that part of the proposal that is the subject of this proceeding, conducted under the sp.

Zn. PL. ÚS 1/08, is the required cancellation point 1 to point 9, 14 to 17, the point

24 to 30 article LXIV ... and the whole article LXV of the fortieth (Amendment of the law on

public health insurance) Act No. 261/2007 Coll. and section of the fortieth

the eighth Act No. 261/2007 Coll. (Act on the amendment of the scope of the authorities of the Czech

Republic in the area of prices), consisting of the article. LXXV and LXXVI, and parts

forty-ninth of the Act No. 261/2007 Coll. (the change of the Act on prices),

consisting of the article. LXXV.



33. The objection shall in the first instance against the decision of the Senate adopts a focus

the draft law. This decision is in the opinion of the plaintiffs in the

contrary to the constitutional role of the Senate and with the content of section 63, § § 101 and 102 of the law on

the rules of procedure of the Senate. It is also in contradiction with the present parliamentary practice and

with the purpose of this Institute.



34. The argument of this group of 19 Senators coincides with the line of argument

a group of 67 MPs and a group of 43 members in those parts of the proposal, where

legislative procedure, admittedly resting in the so-called defects.

"přílepcích", contained in the replenishment proposals Deputy Mirka

Topolanek.



35. Those parts of the Bill, which proposes to cancel a group of senators, were

in the opinion of the plaintiffs received in violation of the Constitution and the law

set the legislative procedure. Specifically, is accused of violating the

the principles of clarity, lucidity and clarity of the law and the principles of

the respect of democratic principles in the legislative process, violations of the

the prohibition of arbitrariness in the legislative procedure and breach of the principle of the protection of

political minorities-therefore the violation of the article. 1, article. 2 (2). 3, hl. 6, article. 37

paragraph. 2, article. 41 and 44 of the Constitution and article. 2 (2). 2 of the Charter of fundamental rights and

freedoms (the "Charter"). There was apparently also to circumvent the Institute

legislative initiative pursuant to article. 41 of the Constitution and for infringement of the rights of Senators

According to the article. 46 and 48 of the Constitution. Accused of violating several provisions of the further

the law on the rules of procedure of the Chamber of Deputies and of the law on the rules of procedure

The Senate.



36. The appellants refer to several of the findings of the Constitutional Court, in which the

the importance of respect for the constitutionally prescribed emphasized how the adoption of

the laws, for example. on the findings of the SP. zn. PL. ÚS 33/97 (a collection of decisions, volume

9, finding no. 163, no. 30/1998 Coll.) PL. ÚS 5/02, Pl. TC 21/01

and in particular to find Pl. TC 77/06 (see above). The principles expressed in these

the findings of the Constitutional Court have not said when the adoption of the Act No. 261/2007

Coll. respected. The latter finding, in the opinion of the Constitutional Court

the plaintiffs also opened important issues before the Senate, that should be

MJ. also fuse the constitutionality and the quality of legislation.



37. The process of adoption of the Act No. 261/2007 Coll., in the opinion of the plaintiffs

again the need for compliance with the principle, emphasized "that a parliamentary majority

not all rules of procedure explicitly prohibit ". The appellants

pushing the expectations that the Constitutional Court in its decision will help

cultivation of the parliamentary legislative process and determine where the boundaries

This is only a breach of legal culture and where the breach of the rules

the legislative process gets the constitutionally sanctioned.



IV.



The plaintiffs ' argument that casts the consistency of the content of the law to the constitutional

laws (regarding the subject of the proceedings in the sp.. PL. ÚS 1/08)



IV/a



The arguments of a group of 67 members of Parliament of the Czech Republic against the contents of

law



38. One of the possible petitů of the group members ' 67 required due to

content of unconstitutional defects of cancellation:



-the provisions of section 11 (1). 1 (a). g) to (i)), section 12 (a). m), section 16a, section 16b,

§ 17 paragraph. 5, section 43, paragraph. 2 in the first sentence the words "and paid

regulatory charges under section 16a, and payments for partially reimbursable medicinal

products and foods for special medical purposes, which

be included in the limit under section 16b, paragraph. 1 "and other words in the sentence

"including regulatory charges paid under section 16a, and payments for the

partly financed by the medicines and foods for special medical

the purpose for this period ", § 53 paragraph. 1 the second sentence and the sentence at the end of the text

a third of the words "with the exception of decisions on the return of the excess on the insurance,

the reduction in advances on the premiums and payment of the amounts referred to in section 16b, "Law No.

48/1997 Coll., on public health insurance, as amended by Act No.

261/2007 Coll.



-the provisions of section 5 (a). (f)), section 7 (2). 1 (a). and the words "and to) comparison

amounts exceeding the limit for regulatory fees and supplements for medicinal

products and foods for special medical purposes partly borne from the

public health insurance or to pay a share of those

the amounts in the case of changes to the health insurance policyholder, under the conditions

laid down by a special legal regulation 1b) "Act No. 551/1991 Coll., on the

General health insurance company in the Czech Republic, as amended by Act No.

261/2007 Coll.



-the provisions of section 13 (a). (f)) and in section 17(2). 1 the first words in the sentence ", and to

the remittance of amounts exceeding the limit for regulatory fees and payments for the

medicines and foods for special medical purposes partially

paid from public health insurance or payment of shares of these

the amounts in the case of changes to the health insurance policyholder, under the conditions

laid down by a special legal regulation 1b) "the law of the Czech National Council

No 280/1992 Coll., on departmental, industry, corporate, and other

health insurance, as amended by the Act No. 261/2007 Coll.



39. The unconstitutionality of the affected provisions of the Act the plaintiffs in detail

divorcing sub. IV. proposal (proposals for the abolition of individual provisions

the Bill for the conflict with the constitutionally guaranteed rights and freedoms).



40. The appellants, in terms of regulatory charges in connection with the

the provision of health care services-primarily point to the article. Article 31 of the Charter.

12 of the International Covenant on economic, social and cultural rights

(No. 120/1976 Coll.) and the article. 11 of the European Social Charter (No 14/2000

Col. m.s.). They point also to the Convention of the International Labour Organisation

the minimum standard of social security (no 461/1991 Coll.).



41. The appellants emphasise that the contested provisions are in stark

conflict, in particular with article. 31 the second sentence of the Charter, since they are based on the

the principle that all, even the most basic care, including care

urgent, has to be a citizen (beneficiary) directly paid, compared to the Charter

It assumes that all the citizens of the Czech Republic (article 42 paragraph.

1) must be provided free health care paid by public

the insurance.



42. The right to health and the right to free health care under the

article. 31 of the Charter, without prejudice to the provisions which are infected, belongs to the

social rights, which according to the plaintiffs, the legislature shall undertake, if

in a specific way. The appellants point out that social rights

in varying degrees, are enshrined in a number of European States and the Institute that is

recognises also the German Federal Constitutional Court, although not explicitly enshrined in the

the Basic Law of the FEDERAL REPUBLIC OF GERMANY. Point out the views of Robert konstitucionalisty

Alexiho, in particular, the argument according to which competency in
political matters with a massive impact on the State budget had

Parliament decided that in the first place is the democratically legitimován.

The plaintiffs, it was that the Charter guarantees a minimum standard

social rights and recalling the Constitutional Court SP. zn. Pl. ÚS

35/93 (collection, volume 1, decision finding no. 7, promulgated under no. 49/1994

SB.) pronounced Analogically, the belief that the core of the citizens ' rights to

free health care and medical equipment on the basis of public

the insurance referred to in article. 31 the second sentence of the Charter belongs to the nedotknutelnému

the minimum standard of social rights, which the legislature must not reduce anymore

or to break.



43. The promoters pronounced the opinion, that the level of legal fulfillment

social rights over that minimum standard is depends on the specific

local time and context in which they are guaranteed. The legislator is

According to them, shall be obliged to follow the tendency of the fulfilment of these rights in an increasingly

greater extent and regres is justified by the only credible and

the deterioration of these conditions to a reasoned. The plaintiffs, it was, that while

Czech Republic has, at least in the last 10 years has continued to

improving growth of well-being, this enrichment society as a whole

accompanied by a retreat from the principles of intergenerational and interpersonal solidarity.

The appellants then understood that the part of the citizens ' glorifies a totalitarian regime

as a better guarantor of their social rights than the contemporary democratic

the rule of law.



44. the Applicants point out in terms of language interpretation on the contents of the glossary

"free", "free", "without paying", "unpaid", "pay", and

"bear" and stressed that an important role in the interpretation of the article. 31 the second sentence

The instrument plays and systematic interpretation method. The appellants strongly

He claims that, if admitted, to even basic health care has been

loaded with fee, would become a constitutional fact health command

care on the basis of public insurance has already completely bezobsažným.

The provisions of the article. 31 of the Charter contains the following rider: "under conditions which

lays down the law "and the plaintiffs concede that this circumstance may

for example, exclude from the fact above-standard health care

(e.g., at the intersection of medicine and cosmetics) or "hotel services" stay at

Hospital, or for example. bind the royalty-free care for the proper payment of health

citizen insurance, etc., in principle, free health care, however, must

be maintained. Definitely a codicil does not set system health

care so that the citizens, who are duly involved in the public health

insurance, they cannot draw or basic health care, without being

required to pay any additional fees. Proponents reject the concept, according to

which the Charter prevents charging stricto sensu to health care, i.e.,. only

Health restorative operations and health AIDS.



45. Finally, the Petitioners, it established the amount of the regulatory

the charges have deliberately discourage access to health care and

They point to the Constitutional Court, SP. zn. PL. ÚS 35/95 (collection

the decision, volume 5, finding no 64, declared under no 206/1996 Coll.).



46. The unconstitutionality of the contested provisions fro the plaintiffs in

the obvious neujasněnosti of regulatory charges, i.e.. in fact, whether it is a

Institute of public or private law. They point out that the provisions of the

section 16a paragraph. 6 the law 48/1997 Coll., as amended by the Act No. 261/2007 Coll., is in

contrary to the article. 26 paragraph. 1 of the Charter. According to the plaintiffs, the imposition of penalties

consisting of a fine of up to 50 0.0-Usd means that

private-sector performance is getting a public sanction.



47. Proponents point to the clash of the contested provisions with medical

Ethics and the Hippocratic oath, and deduce from that charity people,

as for example. Albert Schweitzer, or doctors without borders, in the

The Czech Republic was not possible without the risk of financial penalties. The appellants

with reference to the principle of nemo tenetur ultra esse question option

the application of § 207, paragraph. 2 of the criminal code. Proponents also point to the

contradiction with article. 3 (3). 1 of the Charter, in conjunction with article. 31 of the Charter in the context of

securities.



48. The appellants finally settled on the grounds of the award Zstavního

the Court of the Slovak Republic, SP. zn. PL. ÚS 38/03 of 17. in May 2004, no.

396/2004 Z.z. and remind, that this finding is not a Czech Constitutional Court

bound.



49. The appellants then připouštějíce expressly that charging "hotel

services ', namely the determination of the charge on a bed and meals in the hospital, may not

differentiate yourself from limits of constitutionality, to demand the repeal of the entire introduced

the system of regulatory charges.



50. The Sub. IV. 2. proposal proponents against the way payments health

care through lists with performance evaluation, citing

that, with effect from 1. 1.2008 is removed those proceedings.

It bothers them that mixes statutory form of the individual and of the normative

legal Act (and issue a decree shall decide). The plaintiffs, referring to

Constitutional Court SP. zn. PL. ÚS 36/05 (Code No. 57/2007 Sb.)

It was analogous to the facts.



IV./b



The arguments of a group of 43 members of Parliament of the Czech Republic and a group of 19

Senators of the Parliament of the Czech Republic against the contents of the law



51. The Group of 43 members of Parliament of the Czech Republic, in principle, in conformity with the

the claimant, in the position of the secondary participant does not produce significantly different

the argument. The Group emphasized that, "asociálními proposals

increases the already unbearable for many of the 12-percent participation

the patient ", recalls the UNITED NATIONS Pact on economic social and cultural

rights of 1966, valid for us since 1976, presumuje increase

the administrative burden and the fact that it will have doctors on their

patients in less time. Members of this group also reported that in the

the population of living drops significantly, health status, will be

deep property differentiation and to an increase in poverty.



52. the Group of 19 Senators of the Parliament of the Czech Republic against the contents of

the law does not have any substantive reservations.



In the.



Representation of the parties



53. The Constitutional Court pursuant to the provisions of § 42 paragraph. 4 and section 69 of the Act on the constitutional

the Court posted the present proposal to repeal the contested provisions

The Chamber of Deputies and the Senate of the Parliament of the Czech Republic.



V/a



Representation of the Chamber of deputies of the Parliament of the Czech Republic



54. The Chamber of deputies of the Parliament of the Czech Republic in its representation of the

30 March. 11.2007, signed by its Chairman, Mr Miloslav Vlčkem

the objection of plaintiffs and advocates disagree with them.



55. The appellants argue incorrectly said the finding of the Constitutional Court sp.

Zn. PL. ÚS 77/06 (relating to the so-called. "přílepků") and have chosen the wrong

expanding the interpretation of, and conclusions of law, expressed in the Constitutional Court,

lay not only in the way the submission and adoption of amendments in

Parliament, but also on how to handle the draft law itself.

The plaintiffs apparently took advantage of the fact that the justification of the cited award

The Constitutional Court "is so rich that the erosion of offering fundamentally

different interpretations of what it meant to the Constitutional Court, this finding

comment ". In expressing the opinion that the judgment of the constitutional

the Court is to be interpreted restrictively, in the sense that it concerns

"above all, the issue of amending the draft law submitted in the course

the legislative process, i.e.. in the Chambers of the Parliament ".



56. the statement also argues with some other findings, vyslovenými in

the finding of the Constitutional Court SP. zn. PL. ÚS 77/06 on request

predictability, souladnosti and clarity the rights, on which point

the appellants. If they say the Constitutional Court consistently coming out of it

voiced, ".. so he had to zrušovat the laws, so long as

should the legal order of the Czech Republic does not become accessible even without the help of

the legal information system, which would be in the current legislative

the situation not only unrealistic, but it would constitute a serious

exceeding the competence of the Constitutional Court. -If, in the broad sense

understood the unpredictability, incongruity and the clutter of the Act should be

the reason for the cancellation of the Constitutional Court Act (as violation of its

abstract «the rights to good laws "), it would mean that we would

dovozovali competence of the Constitutional Court to repeal any law, without

had to in search of reasons for the cancellation of the law restrict the texts

specific provisions of the Constitution. The Constitutional Court would be simultaneously articulating

the legislative policy of the State. Policy making,

representation by the people in democratic elections, to choose, and that is

also the people responsible of its activities. " The Constitutional Court cannot be said to

"the guarantor of the quality of legislation", as assessed in accordance with the criteria

predictability, souladnosti and clarity the rights, because it said

"the constitutional definition of hate-the position of this Court".



57. In the comments is pronounced opposition to the claims of plaintiffs that

the Government Bill and the law itself is materially inconsistent. The subject of the

the draft law was apparently intended "-the unifying intent of the Government, which according to the

the explanatory memorandum was optimization of revenue of the State budget, which
at the same time through should be supported by economic growth and the protection of

of the environment ". Of the framework defined by the subject of the draft law said

nevybočily or the amendments tabled, adopted at third reading.



58. The expression of dissenting opinion also contains a proposal for the abolition of

the various provisions of the contested act or amended laws

for the inconsistency of their content with the constitutional requirements. The subject of this proceeding

relates to the controversy, with objections relating to regulatory fees and

the determination of payments to health care through the list of performances with the

point values. According to the expression-as regards regulatory fees-

"already from the name of these charges, it is clear that this is not about fees

health care, but about the so-called fees. regulatory, whose purpose is to

regulate and limit abuse and inefficient pumping of the medical care. Thus in the

ultimately lead to the improvement of this care. Still remains

medical care free of charge from the conditions laid down by special law ".

New legislation for the establishment of health care zhrad

through the list of performances with point values in accordance with the law

The European Union assumes the podřazení tender setting of medicinal

products under the mode of individual decisions by way of administrative procedure

According to the expression "with a similar individuation of deciding the law now

Computes the logical and in the area of price controls, when deciding the amount of the

the maximum prices of medicinal products administered in the form of maximum prices.

Decision of the administrative authority as follows will be fully reviewable.

Mode setting maximum prices is based on predictable and verifiable

the criteria referred to in the Act ".



59. In conclusion, it expressed the opinion that the summary, the Chamber of Deputies

acted in the belief that the law is adopted in accordance with the Constitution,

the constitutional order and the rule of law.



In./b



Representation of the Senate of the Parliament of the Czech Republic



60. The Senate of the Parliament of the Czech Republic, represented by its Chairman, Přemysl

Sobotka, in representation of 28 June. 11.2007 described in particular procedure

assessment of the Act No. 261/2007 Coll., by the Senate.



61. He stated that the draft law approved by the Chamber of Deputies was after his

referral to the Senate referred to discuss three committees-the Committee on the

economy, agriculture and transport (which featured as a guarantee

the Committee), the Committee for territorial development, public administration and the environment, and

Committee for health and social policy. All three committees

recommended to approve the text of the draft Bill in a transferred by the

the Chamber of Deputies. The Senate acted on draft law on his 8. the meeting of 19 May. 9.

2007. In States that in the full Senate did not "classic"

debate within the meaning of the rules of procedure of the Senate. Before the vote on the proposal to

the Senate Bill did, however, have taken advantage of their rights.

preferential granting of words (section 69 of the law on the rules of procedure of the Senate) some

officials of the Senate, and the Chairmen of the clubs.



62. the President of the Senate in the comments States that at the meeting of the Senate, as well

as before in the Senate committees, echoed the views of the Bill

represents an extensive, unclear and in our legal system the unique

the legal standard. The procedure, which was criticized during the discussions in the

The Chamber of Deputies added to the Government's draft law, some new

parts, and some have been raised further objections.



63. The Senate said, by its resolution No. 192 of 19 December. 9.2007

a majority approved a Bill expressing the dwell,

He acted in the belief that this standard is in accordance with the Constitution and with the

By the Charter. Although the law said. "at first glance it may remind the file

unrelated separate partial legislation compiled only

into one comprehensive law "still ..." contains the main unifying

the idea of the ... stabilization of public budgets ". The analogous procedure is said to be in

the Czech legislative process, the novelty, as was also

for example. When setting up regions (Law No. 132/2000 Coll.) or when closing

the activities of the district authorities (Act No. 320/2002 Coll.). Through the prism of a unifying

the idea of a Bill, the Senate accepted and complex amendments

(members of Topolánek, Tluchoře and Rovana) adopted by the

the Chamber of Deputies.



64. in relation to the amendment of the Act on public health insurance

and new legislation regulating the prices and reimbursement of medicinal products and food

for special medical purposes it highlights interest in accelerated anchoring

the new legislation with regard to the fact that the previous edit was

the finding of the Constitutional Court pl. TC 36/05 cancelled on 31. December 2007.

In the case of regulatory charges "Senate majority has accentuated the idea that

regulatory charges "do not have a public character" and the importance of their

the envisaged regulatory and financial sector stabilisation effect

health care "



65. The Senate leaves it to the Constitutional Court to assess the constitutionality of adopted

the law and decided.



V/c



Representation of the Ministry of health, including for



66.27 June. in December 2007, the Constitutional Court received (without asking for them)

representation of the Ministry of health of 19 December. December 2007,

signed by the Minister of health Tomas Julínkem. The Ministry of

health care in it says that as the central authority of State administration for

health care, compulsory to respect the public interest, their

opinion on the proposal for a group of MPs and senators as amicus curiae.



67. The Ministry of health in its opinion expressed the view that the

the legislative process of the adoption of the Act No. 261/2007 Coll. was in accordance with the

respective constitutional requirements. The objections raised by the claimant against the parts of the fortieth

Act No. 261/2007 Coll. (Amendment of the Act on public health insurance),

which consist in the fact that the content of the new legislation contained in the head of the fortieth

is not related to the basic subject, where appropriate, the purpose of the Act, which is to be

"the stabilization of public budgets", indicates the Ministry of health

for odd. The Ministry contends that the new regulation setting payment

and the prices of medicinal products is the same as the subject of the edit as the entire law,

that apparently has a clear "unifying idea", i.e.. "optimize the revenue of the State

the budget ". The Ministry of health further submits that no

the objections raised by against the procedure of submission and acceptance of amendments

proposals relating to Deputy Tluchoře (setting payment and prices

medicinal products), because i said these amendments related to the

subject of the entire Bill.



68. In the opinion of the Ministry of health is therefore a sharp

disagreement with the submitted proposal. The Ministry is of the opinion that the

the appellants are attempting, through its proposal to implement

own political programme, for which it did not find sufficient support in the

Parliament. In relation to that part of the draft, which proposes the abolition of

regulatory charges for health care, provided by the Ministry of

health first is based on the view that modern legal science have already

does not perceive public space and private as a strict and

a unique Department, there are a number of legal relations with the combination of

private and public elements. In the system of public

health insurance and care provided on its basis can be distinguished

the four basic relations. The legal relationship between the payer of dues on

health insurance and health insurance as the collector of the levies on

public health insurance is, according to the Ministry of health, without

no doubt the relationship public in nature. As regards the relationship of the policyholder and

health insurance takes the legal opinion of the Department of health,

It is a private relationship with public elements.

The Ministry of health points out that the legal relationship health

the insurance company with the provider of health care was no longer Constitutional Court

recognized as a relationship uniquely private nature, albeit with a higher degree of

the legal regulation, which is common in commercial law. The legal relationship

the patient with a health care provider is in the opinion of the Ministry of

health, prima facie relationship private, whatever is in it

screened in the public interest by regulating the considerable legal

legislation-overall with a slight simplifikací noted that the resources

public health insurance funds are of public character to

to the moment the so-called. the redistribution, and therefore also to the handling

subject to the public service legislation (e.g. the administrative code). From the moment

redistribution, when health insurance gets on my account not

the amount paid the policyholder, but the actual premiums on the insured's

(allocation), the amount of which is determined by the key, based on the přerozdělovacího

age and sex, it means the character of the private ".

Regulatory charges have the aspect of private law, however, you cannot call into question the

Neither aspect of public service, i.e.. in particular, the purpose of their introduction

(optimization of the management of the resources of public health insurance)

some related institutes, for example. the penalty for nevybírání control

the fees. It is a tool whose primary purpose is to optimize
the allocation of resources within the system. According to the Ministry of

health care is "the introduction of regulatory charges the first small step

comprehensive health care reform that aims not to deny the right to

citizens, according to the article. 31 of the Charter, but to ensure its better implementation and

fulfilling in the long term. Currently, seven

the substantive objectives of the laws that constitute the basic pillars of the above-mentioned reforms,

located in the legislative stage in question.



69. A set of changes in health care law implemented to stabilise the

the public finances are so complex and interlinked with other changes

(e.g. the tax system) that cannot be canceled only in part, without

the Government was given the opportunity to accept changes in a different way according to the requirements

The Constitutional Court. This is a change so large that many actors

in the health sector (in particular the individual providers of health services)

accepted the steps to implement specific provisions (e.g. technical

device for selection of regulatory charges). Would be inconsistent with the principle of

good governance (as recognised by the Constitutional Court and legal science-see.

Principles of good administration, proceedings of the Conference, Brno, 2006),

If such steps effectively sankcionováni their additional

obsolentností. The Ministry of health also draws attention to the specific

the pitfalls of that "potential abolition of regulatory charges with immediate

efficiency brought about. The introduction of regulatory charges, as is done

part forty-Act No. 261/2007 Coll., "not only that, the availability of

health care is needed (the amount of the charges is in fact

marginal in the context of the family, with the average consumer basket, but also significantly

below-average earners), on the contrary, by removing some of the inefficient

expenditure within the therapeutic process to optimize the allocation of

limited financial resources originating from the public

health insurance, which will inevitably lead to improvements, not

the reduction in the availability of health care. " An important aspect of contributing to

the constitutional conformity with article Institute of regulatory charges. 31 of the Charter is

also the introduction of regulatory charges in the amount of CZK 5 000 per year.

Due to the fact that it will be charged and the supplements to the

medicinal products, will be indispensable for the introduction of a limit

a group of chronically ill patients who today pay supplements in

the sum is often greater than 10 000 CZK per year, significantly positive implications in the

the meaning of increasing the availability and lowering the financial performance of the necessary

health care. The substantive scope of health insurance with a new modification de

facto expands on some regulatory fees and supplements on meds

paid in higher volume than 5 000 CZK per year. The existence of the limit and in

the Czech environment reinforces the lack of solidarity by the cycling so far

healthy with the sick. " The Ministry of health further argues

favor of the opinion that the royalty-free health care is just one of the attributes

availability and points out that the European code of social

Security (No. 90/2001 Coll.) and the other international Convention clearly

set priority of ensuring the material availability for citizens without

the difference in social status, rather than a formal service. Registration

the functions of regulatory charges and in particular the limit has the support to ensure

the availability of health care for all citizens of the Czech Republic.

The Ministry of health also recapping and assesses developments

the method of determining the payment of health care through the list of performances with the

point values. Need to edit setting pointed to payments

medicinal products from public health insurance, starting with 1. January

2008, because the existing legislation was to 1. December 2007 cancelled

the finding of the Constitutional Court pl. TC 36/05. The Ministry of health

concludes that the new legislation is in full compliance with the requirement

the "transparenční" of the Council No 89/105/EEC and of the Constitutional Court on the

the setting of prices for medicinal products and on the basis of clearly defined

the criteria in a manner transparent and predikovatelným, including the possibility of

judicial review of the entire proceedings.



70.19 December. in February 2008, the Constitutional Court received "Observations and

the opinion of the Ministry of health on the proposal to repeal the law-

the Tween. The Ministry of health in this supplement summarises the

historical development before the introduction of the fees and points out that "since 1990 in

virtually all of the political representation of trying to create a way to

Download charges ". Starting with steps that make the Ministers Pavel Prabhakaran K,

Martin Bojar, Petr Lom, Luděk Rubáš, Jan Stráský, Josef Kubinyi, Marie

Souckova, Milada Emmerova and David Rath. According to the Ministry of health

"the previous Minister of health David Rath before joining function

the Minister as President of the Medical Chamber suggested the introduction of fees

patients, in the same or greater extent than are covered now-20%

the prices of non-hospital performance,-CZK 50.0 for 200.0-$ 10 per visit

a doctor in the apartment, etc. "



71. The Ministry of health also brings geographic comparisons

including the table of regulatory charges in Europe, respectively Austria, Ireland, the

France, Germany, Switzerland, Norway, Sweden, Uk,

Portugal, Slovakia (earlier today), Hungary, Croatia, Bulgaria,

Latvia and Estonia. From the table is served, that fee is zero in the

Spain, Italy (in addition to hospitalization and visits to specialists), Poland

Lithuania and Romania.



72. The Ministry of health also performs "compared to the whole system

rights in health care ", recalls the case law of the Constitutional Court, in particular

the findings of the SP. zn. PL. ÚS 35/95 (see above), pl. ÚS 23/98 (collection

the decision, volume 14, usn. No. 33) and Pl-14/02 (collection of decisions,

volume 30, finding no 82, announced under the No 207/2003 Coll.) and submit your

the interpretation of the legislation and the case law of the Constitutional Court in relation to the article.

31 of the Charter. The Ministry finally discusses the contested legislation that

section 16a and section 16b of Act No. 48/1997 Coll., as amended, with the

an emphasis on a sense of editing, leads "considerations de lege lata and de lege

ferenda "and concluded that" fundamental changes in the system can be carried out gradually

on the one hand, while respecting the Constitution guaranteed rights, on the one hand and for the time

abundance. If interventions were made in times of crisis, to which the

undoubtedly lead to remain in the current edit, then these interventions

caused instability. The current edit, nor in the account of the coming

modifying any instability being invoked is not. Proceed from nervousness in

system and environment through its stability to a specific development. On the basis of the

conceptual studies, taking into account the considerations de lege ferenda trying to

the reform of health care within the limits of optimize the system possible. Input

the gateway to this optimization is the introduction of charges. "



VI.



A replica of the petitioners to express



73. The appellants-a group of 67 members-posted 18 May. 12.2007

the observations of the President of the Chamber of Deputies and the President of the Senate of its

contradicting the replica. They point in particular to the fact that the participants

proceedings before the Constitutional Court are the Chambers of the Parliament, not their

Presidents-representing the Chamber just outside. The Presidents of the Chambers are not

According to the replicas are entitled to independently form the will of the Chamber, which shall be chaired,

but can this will-that is created according to the rules laid down by the Constitution and

law-only outwardly communicate and manifest. If the President of the Chamber of Commerce

Parliament fails to submit the proposal for approval by the representation of the party

Chamber of the Constitutional Court may, by virtue of their function, to tell only the factual and

the undisputed circumstances, consideration of the draft law. Evaluation of the approved

law and the proposal for its annulment by the Constitutional Court over this limit is not

the relevant expression of the Chambers, but only the personal opinion of its President.



74. The appellants claimed that the comments provided by the Chairman of the Senate

Přemysl Sobotka, the President of that interprets the position to the Senate

the contested Law, although in the full Senate to act on it or

the debate, as the Senate decided that the draft law does not address.



75. The appellants question the relevance of the observations of the President of the

the Chamber of Deputies Miloslav Vlcek and because of his affiliation to the Group

Members that the proposal to repeal the Act No. 261/2007 Coll..

One and the same person so acting on the two parties to the proceedings-

the appellant and the authority that issued the contested regulation.

Miloslav Vlček, therefore, as a member of the unconstitutionality of the contested claim

Act No. 261/2007 Coll., and as President of the Chamber of Deputies, no

procedural or substantive defects on the approved law does not find it.



76. in its reply, the appellants take issue with the observations of the Chairman

The Chamber of Deputies, that the proposal to repeal the law alleges "vague

the application of the principle of predictability in the law ". The Plaintiffs contend,

They argue breach of the specific provisions of the Constitution, in particular article. 41

The Constitution (circumvention of the legislative initiatives). 6 of the Constitution (political

decision on the basis of the will of the majority, expressed the free vote),

article. 15 of the Constitution (legislative power of Parliament) and article. paragraph 89. 2 of the Constitution
(General binding force of enforceable decisions of the Constitutional Court).



77. The appellants do not agree with the fact that in the comments of the President of the Chamber of Deputies

the Chamber of deputies are bagatelizovány the principle of legislative techniques contained in

The legislative rules of the Government. It is said to be a wonder if and only if

is the submitter of a bill the Government, legislative rules alone

established. The plaintiffs believe that the gross violations of these

very traditional and proven principles of making laws can have a devastating

the effects on the level of legal certainty, and thus constitutionally protected foundations

the rule of law.



78. The appellants take issue with the observations of the President of the Chamber of deputies also

the Chamber of deputies regarding the nature of regulatory charges and point to

popularizing brochure, in which the Ministry of Health advises citizens

"how to plan your budget" and "medical expenses".



79. the President of the Senate, who defended the practice of adoption

complex laws concerning unrelated partial file

legislation United supporting the idea of unifying, pointing to similar

the laws adopted in the context of the creation of regions (Law No. 132/2000

SB No. 320/2002 Coll.), a replica of the claims that these laws differ significantly

the more intense the thematic and teleological compactness and are scoped

far smaller than the Act No. 261/2007 Coll.



80. The appellants-a group of 67 members additionally have posted 17 May. January

2008 the Constitutional Court its opinion on the representation of the Ministry of

health of 19 December. in December 2007, which pronounced the fundamental

the opposition. The bulk of this opinion of the plaintiffs is a polemic with the

the Ministry of health concerning the arguments of regulatory charges in the

health and regarding the new legislation establishing payments and prices of medicines.

The appellants take issue with the view of the Ministry of health,

"the plaintiffs are trying to implement through its design

own political programme, for which it did not find sufficient support "and

It was that the claimant, debt forgiveness for the realization of the Constitutional Court No

political program. Appellants do not identify with the idea that it is a

the relationship "with the private public elements," according to them has

the relationship of a public nature. The appellants further disagrees with the views

The Ministry of health, on "Optimizing allocation

resources within the system ", take issue with the argument of the trend of the ageing of the

population and the impact on the system and the range of health care, disagreement with the

the expression of the Ministry of health as regards the interpretation of the

the provisions on the penalty of CZK 50 0.0, 5 0.0, the interpretation of the relationship

the fact and the availability of health care, does not agree with

the line of argument relating to the tender of the new regulation and the price of the product, and

After the formal and content page. The plaintiffs concluded that "If the

the Government continues to submit its reform intentions in such vast and

the disparate bills, the consequences for souladnost, clarity and

the predictability of law and legal certainty in the Czech Republic will be in accordance with

the appellant's opinion, the fatal ".



81. The appellants finally posted on 7 December. March 2008 filing, in which the

It was that, in its resolution of 8 April 2003. January 2008, SP. zn. PL. ÚS 24/07 has

not only to the exclusion of things to discuss, but also to

compliance of their "request for priority consideration of the case because of the

the urgency ". Express also. "přílepkům" in relation to parts

the contested Law discussed in this proceeding. As regards their

the objections relating to the legislative procedures, according to the plaintiffs find

in the matter of SP. zn. PL. ÚS 24/07 obstacle rei iudicatae for this control.

The appellants further in relation to the registration fees, it was that

mark the payment as a "fee" is misleading and "peak of absurdity"

indicate the legal adjustment of the fine that may save health insurance

medical device, which would be the regulatory fee nevybralo.



VII.



The evidence obtained by the Constitutional Court from public sources



82. The Constitutional Court as the basis for its decision to enlist the

-reporting records of the proceedings of the Chamber of Deputies, the Senate and their

the committees, their resolution and Council publications freely available in

Digital Library on the Web site of the Chamber of Deputies and the Senate

The Parliament of the Czech Republic on www.psp.cz and www.senat.cz.



VIII.



A description of the legislative procedures, the adoption of Act No. 261/2007 Coll.



83. From the observations of both chambers of the Czech Parliament, are connected

annexes and documents available electronically to the Constitutional Court

found:



-The Government has submitted to the Chamber of Deputies the Government Bill on 24. 5.

2007 (222/0). The Bill has been circulated to members April 25. 5.2007.

The Organising Committee of the Chamber of Deputies discussing the draft law

recommended 24 October. 5.2007. Determine the newsletter Mgr. Bohuslav Sobotku and

suggested order proposal to discuss the three committees: 1. the Committee for the

health, 2. the Committee for social policy, 3. the Budget Committee.



-The first reading took place in 6 days. and 7. on 15 June 2007. the meeting of the

the Chamber of Deputies. The Bill was referred to the consideration of the above committees

(resolution No. 335).



-House Committee on health to discuss the draft law of 20 March.

June 2007, did not accept any resolution. The Committee for social policy

discuss the Bill of the day 2. 7. in 2007, and in its resolution recommended

reject the proposal. The Committee discussed the Bill date 8. 8.2007

and in its resolution recommended to reject the proposal.



-The second reading in the House passed a Bill in the General and detailed

the debate on 14 July. and 15. on 18 August 2007. meeting. Filed amendments

the proposals were processed as print 222/3, which was sent to 16. 8.2007.



-The third reading in the House took place 21. 8.2007 at 18. meeting. A proposal from the

the law was approved; of the 200 parliamentarians voted for the adoption of

101 members, 99 votes against.



-Refer the Chamber of Deputies on 31 December 2004. 8. the 2007 Senate Bill

as print 106/0. The Senate has included the printing of his 8. meeting and discuss it

19 July. 9.2007. Resolution No. 192, the Senate expressed its will to design

the Act does not deal with.



By-law was delivered to the President of the Republic to sign the 25 June. 9.2007

and the President signed it on 5 December. 10.2007.



By-law was declared 16 June. 10.2007 in the amount of the collection of laws under the 85

number 261/2007 Coll.



IX.



Oral proceedings before the Constitutional Court



84. In oral proceedings before the Constitutional Court, which was held in the days of

1.4. 2008 and 16. 4.2008, the parties and the interveners

remained on their opinions, which are the contents of their submission to the

The Constitutional Court. The Constitutional Court hear the witnesses and the Deputy Prime Minister

ing. Mirek topolánek and Minister of health. Tomáš Julínek Might Be Replaced.

The Prime Minister and member of the ing. Mirek Topolánek in his witness

testimony during the hearing to the proposal, the contested legislation

in the Chamber of deputies of the Czech Parliament and it made a revised

the proposal, as well as to the purpose and intent with which the Government treats the

the present part of the stabilization of public budgets. The Minister

MUDr. Tomáš Julínek as testified in a written

the opinion, which Health Minister sent to the Constitutional Court as a

amicus curiae and explained the aims and objectives of the reform, regulatory sense

regulatory fees and the financial implications of selecting these regulatory

the fees for the financing of the health system.



X.



Constitutional competence and conformity of the legislative process



85. the constitutional competence of the conformity Assessment and the legislative process,

and that in relation to the plea of unconstitutionality of the law, the discrepancies

the decision of the Senate Bill does not deal with the opposition and violation of

the legislative rules of the Government with the Constitutional Court dealt with already in the proceedings,

that was terminated by the finding of the Constitutional Court of 31 March. January 2008 sp.

Zn. PL. ÚS 24/7 search. under no 88/2008 Coll.). For brevity, therefore,

as regards the procedure and the reasons for this finding, in full

refer to section X, X, X//b and X/(d) award of the Constitutional Court of 31 March.

January 2008, SP. zn. PL. ÚS 24/07.



86. Of similar background and conclusion as to the converged in the award

SP. zn. PL. ÚS 24/07 of 31 May. in January 2008, the Constitutional Court decided in

relation to the opposition of the "absence of a close relationship with the amendments

the subject of law and exceeded the statutory framework for the administration of

legislatively-technical proposals in the third reading of the draft law "(see

more detail in the sub. X/c statement of reasons finding SP. zn. PL. ÚS 24/07 of 31. January

2008). The Constitutional Court is of the opinion that a case of buckling of frames

the subject of the original draft of the law and set out for the inclusion of the circuit of the standards,

that are not related to the reform of public finances and funding

health care is not. In finding SP. zn. PL. TC 56/05 of 27. March 2008

(in: http://usoud.judikatura.cz/) with the Constitutional Court dealt with the question

"the formal text of the law", which would "mean a danger when

identical edit will be accepted again, only with the difference that will be

complied with all the requirements of the legislative process ". The Constitutional Court in the

finding SP. zn. PL. TC 56/05 came to the conclusion that "in the present case

formal review of the procedural aspects of the retreating from the standpoint of the principle of
of proportionality, the requirements of the principles of the rule of law, legal material

the security and the efficient protection of constitutionality ". In the now of things meant to be, the situation is

similar, not to be overlooked, that the appellants and the interveners do not have the

the content of the contested statutory provisions of the so-called. "přílepků" as a whole

reservations and that led to their adoption, and the fear of starting periculi in mora

January 1, 2008.



XI.



Content compliance of the contested statutory provisions with constitutional order.



87. The Constitutional Court was-as far as content, the conformity assessment

contested statutory provisions with constitutional order-built

the claimant to the situation, which characterizes the plaintiffs ' contention that the

While "charging" hotel services ", i.e. the determination of the charge on the

accommodation and meals in the hospital, do not drift from the limits of constitutionality "

However, the applicants seek to "Cancel" the entire newly implemented quality system

regulatory charges. Thus conceived the submission leads to the fact that they are

challenged as to the provisions to which the design is guided by the constitutional

the argument, so the provisions, against whose only above

no way předestřené g/l or unconstitutionality of constitutional law

the argumentation is not guided. The appellants that rails against "the newly

established by the system of regulatory charges as a whole ", i

the provisions, which cannot cause interference into your applications by the Charter

guaranteed rights as holders of such rights do not impose any

obligations, such as. the contested provisions of section 16a paragraph. 2, 3 the law on the

public health insurance. Indicated the circumstances led the Constitutional Court to

It examined compliance with the constitutional order of the content only for those

the contested provisions, affecting the whole of the newly introduced system "

regulatory charges ", that the content of the logically and systematically

come for the assessment of constitutionality and unconstitutionality to which

endure the appellants or secondary participants in this sense, constitutional law

the argument. Considering the stuff is in question, whether the words of plaintiffs

-"charging almost all health care" is or is not a constitutionally

Conformal.



88. The Constitutional Court when deciding he could not put aside from the fact that

that part of the contested Law, which is being discussed in this proceeding is

the content an integral part of the stabilization of public budgets. In this

the context then focused attention on the principle of restraint and

minimizing intervention and on the question of the powers of the Constitutional Court, proceed to

the Supreme decision. Similarly, as was the case in the findings, SP. zn. Pl. ÚS

24/7 (declared under no 88/2008 Coll.) or SP. zn. PL. ÚS (announced 2/08

under no 166/2008 Coll.), has the potential to make even if found to

enough reasons for a negative decision, after finding the answers to

This circuit issues, decide with reference to the aspect of procedural

Economics, carried out the test without reason (rationality), respectively.

engaged-albeit from an optical point of view and the structure of the reasoning of the award-

seemingly the final terms of a legal, however, undoubtedly the primary

the factual question-whether the challenged legislation is a violation of any of the

the provisions of the Constitution or the Charter or whether it was hit in one of the

the rights protected by the Charter. This is the restraint and minimize

intervention, the test of rationality, or the compliance of the contested legislation with

the provisions of the Constitution or the Charter.



89. The Constitutional Court recalled that already in the find sp.. PL. ÚS 14/02

(A collection of decisions, volume 30, finding no 82, announced under the No 207/2003

SB.) expressed some reticence in relation to the assessment of the overall adjustments

health, recalling, inter alia, that "is aware that these questions are

part of the whole complex of problems of public health care, which

based on the use of constitutional principles which should your total

adjusting to respond to common solutions in advanced democratic States and

internationally agreed or recommended, opinions ". In finding SP. zn.

PL. ÚS 12/94 (collection, volume 3, decision, find no 20, announced under the No.

92/1995 Sb.) -even if this was the area of social security-

The Constitutional Court stated that whether it will be the preferred point of view

solidarity or preferred the principle of equivalence, it is "reserved

the legislature, which cannot proceed arbitrarily, but in determining the

preferences must take account of the reference values of the public ".



90. The Constitutional Court, aware of the interconnection of all parts of the contested

legislation and a unifying element of the intention just to stabilize the

public budgets, could not in this stuff than build on conclusions made in

finding SP. zn. PL. ÚS 24/07 and SP. zn. PL. ÚS 2/08, in particular as regards the

"the wide scope of the legislature to decide on the subject matter, the extent and scope of the

taxes, charges and monetary sanctions "and the political responsibility"

the legislature ". In finding SP. zn. PL. ÚS 2/08 the Constitutional Court for the area

social rights, said that "according to the article. 5 of the Constitution, the political system

The Czech Republic is based on the free and voluntary formation of and free

competition of political parties which respect the fundamental democratic

understanding. Political decisions are based on the will of the majority, expressed

a free vote. Decision of the majority shall ensure the protection of minorities (article 6 of the

The Constitution Of The CZECH REPUBLIC). The Constitutional Court therefore concludes that, if the appellants, as

the representatives of the legislative power, it considers that the contested legislation by

is inappropriate or giving rise to negative consequences, they may seek to change

in the context of political competition, not in the framework of judicial control of the constitutionality,

which by its nature must be limited only to the constitutional questions

nature. If the Constitutional Court the proposal would pass, and the decider himself

Instead, the legislature would not only violated the above-quoted provisions of the Constitution

The CZECH REPUBLIC, but in particular would be made unnecessary competition of political parties. Primarily

their task is, in accordance with the mandate provided by their voters, and on the basis of

It set out the political priorities, to submit to the most appropriate ways to

implementation of the social rights enshrined in title the fourth Instrument. It

of course, always from the perspective of the possibilities of the State budget, based on the

the results of the management of the State, which also bear the political

responsibility and within the limits of the relevant articles of the Charter of

fundamental rights and freedoms. "To assess the question of effectiveness, appropriateness and

Social Justice legal provisions in this area solely in

the powers of the legislature, in which the activities of the Constitutional Court, except in cases of

established neústavnosti, cannot intervene. It is about the issues in the

the essence of the political, where primarily falls and the whole area. social

rights. "



91. The Constitutional Court arcit ' also took into account that health reform

the system at this stage is not yet finished, and that the Minister of health

Tomáš Julínek as a witness testified that soon will be ready

proposals for other related laws. The Constitutional Court now adds that

If they progressed in relation to any reform, the reform of the

health care, too, created the aktivisticky would certainly then

the case-law, that would a priori closed the door to any reform

the efforts. The Constitutional Court stems from the fact that the effects of the reforms can be evaluated

up to then, when already created mechanisms could begin work, and adds

that from the perspective of the assessment of the constitutionality of the contested provision is

only decide on fundamental principles rather than the specific

fakticitě.



92. Then, when they were found in the reasons for maintaining the maximum extent

restraint in General in relation to the contested legislation as

the whole, the Constitutional Court came up from the top of the divorced the motives for the test

of reasonableness. Choose this variant of the test along the lines of no different

opinion adopted by the section of the Chamber award SP. zn. PL. ÚS 83/06 (pronounced

under no. 116/2008 Coll.), according to which the principle of proportionality "may not be

always the main criteria considerations on the constitutionality of the statutory

the provisions. It, therefore, that the principle of proportionality applies in particular in the

the field of human rights and fundamental freedoms (the head of the other Instruments); in

the area of economic, social and cultural, however, should be

take into account article. paragraph 41. 1 of the Charter, opening a wide space for

the legislature in choosing a wide variety of solutions. Due to the article. paragraph 41. 1

The instrument may not be statutory in strict relation of proportionality to

the objectives of the regulation, which is being monitored, IE. do not go for measures in

a democratic society is necessary, as is the case for example in the case of other rights,

which can be invoked directly from the Charter (cf., however, e.g. Article 27.

1, 2, 3, of the Charter and the rights stated therein, which are not article 41 paragraph. 1

limited). Test the constitutionality, in this sense, passes such legal

the adjustment, which can detect the tracking of a legitimate objective and that

so in a way that can be thought of as a reasonable means to

his achievement, though it may not be a resource the best, the best,

the most effective or the wisest (test of reasonableness-cf. also find SP. zn.

PL-61/04, promulgated under no. 16/2007 Sb.). " Such a procedure is not, indeed,

unique. "The American theory then talks about the so-called. the test of rationality

(the rational-basis test), according to which standard will be valid, if it is always in the

reasonable relation to some sort of public objectives, and clearly is not the result of
arbitrary distinction "(cf.. M. Bobek, p. Boučková, Kühn (eds.),

Equality and discrimination, Prague, 2007, pp. 47-48).



93. The Constitutional Court before the case went to the test

reasonableness, dealt with the nature of social rights and their differences

the article 41 paragraph. 1 of the Charter. Similarly as in finding SP. zn. Pl. ÚS

2/08 notes that these rights "do not have unconditional nature and it is possible

sue them only within the limits of the laws (article 41, paragraph 1, of the Charter). In

within these limits the legislature has relatively wide freedom to modify

the implementation of individual social rights, including the possibility of changes. "



94. The Constitutional Court and other specific features of the nature of the social

rights. In finding pl. ÚS 2/08, that social rights "are dependent

in particular, on the economic situation of the State. Their level of provision

It reflects not only the economic and social development of the State, but also the relationship of the State

and the citizen, based on mutual accountability and the recognition of the principle of

solidarity. "



95. The Constitutional Court, being aware that "the opposite of legal science-or

practical dogmatice have other doctrines that deal with law,

nehledíce the objectives of the practical, such as history, science, legal, legal

comparative and legal philosophy, the nature of the auxiliary Sciences "(cf.. (L).

Heyrovský, history and the system of private law of Rome, VI. Edition,

Bratislava, 1927, p. 9-10) the first looked at the viewing angle

disciplines on the circumstances in which it was formulated, which is, was

or not in developed European countries mentioned in the constitutional order

and finally, how was it actually in practice of the Czech lands have not yet applied the right

on the protection of health, provision of health care and how they evolved

Organization of health care. This is a substantial reasons, implying, in

What is the specific social rights further, as summarised in the

the award.



96. In all, the sight of the legal history, legal history, respectively, dealt with

The Constitutional Court the question of the development and the relationship of the patient and the doctor, the formation of the

Institute of social rights and its constitutionally guaranteed, so

effective fulfillment. Already in the times of the formation of the oldest legal monuments

was the doctor's assistance, without any guarantees provided by care, paid for by the

the patient. Shows such as. a numbered style "section 215" code

starobabylónského King Hammurabi of 18. centuries before Christ,

According to which "If the doctor has performed the plnoprávnímu citizens of the bronze knife

the difficult operation and plnoprávního of the citizen heal, or bronze knife

Opens the oboční arc plnoprávního citizen and heal an eye full

citizen, taking ten shekels of silver ", and" section 216 ", which provides that

the reward in the case of a physician of the layer to the fullest legal citizens,

take five shekels of silver. Hammurabi also contains additional

kasuistická the provisions of the "medical plan" and the adjustment of the criminal

responsibility for faulty medical procedure (cf.. J. Klíma, The Oldest

the laws of humanity. Chammurapi and its predecessors, Academia, Prague 1979

p. 139). Similarly for the Czech lands are already starting from the medieval period

available sources suggesting that medical care and medicines have been

the patient also covered without any guarantees of health protection. This

the State lasted until the end of the 1. half of the 20. century (see for example. P.

Free, l. Haberman, the history of medicine in the Czech lands, Triton

Prague 2004, page 31, 46, 50).



97. Social rights or rights associated with the provision of medical care,

She was inducted into the European Institute in up to 20. of the century. For the first time it happened

in the so-called. Stalinist Constitution of the Union of Soviet Socialist Republics,

approved VIII. an extraordinary Congress of the Soviets of the USSR on 5 December. in December 1936,

or in her head in the X article. 120. Under this article, the "Citizens of the USSR have the

the right to the material provision in old age, as well as for sickness and

disability. This right is ensured by the development of social

insurance of workers and employees on behalf of the State, free medical

help for the workers and an extensive network of places that are given by

to use working people. " (See translation in to small, to

the study of the history of State and law of socialist countries and the SOVIET UNION 1917-1945.,

Prague, 1987, p. 128) cited the stalinistická Constitution of 1936

zakotvovala at the same time also the principle that "Work in the USSR is the duty and Affairs

honor each and every citizen capable of work according to the principle: "who does not work, whether

don't eat! " "Legal History of evaluating the provisions of the Constitution of social rights

from 1936, he "was a manifestation of infinite insolence of the Communist

propaganda, which (this Constitution, issued also for true image

Soviet ratios) successfully baffled the world democratic and, in particular,

protifašistickou the public. None of these provisions did not have adequate

the real reach, everything was in non-compliance not only with the cruel reality of the practice,

but also with the relevant legal or by editing the podzákonnou "

(cf.. (D). The history of the Russian law, Pelican, c. k. Beck, Prague 2000.

77). In the Czech lands was the right to health protection for the first time enshrined in section

29. 13 of the Constitution of the Czechoslovak Republic no 150/1948 Coll. (hereinafter referred to as

"The Constitution of 1948"). Cited the provisions of section 29 of the Constitution of 1948 was:

(1) Everyone is entitled the right to protection of health. It is for all citizens

the right to medical care and for the provision of both old age and

incapacity to work, and in the impossibility of making a living. (3) these rights are

ensure the national insurance law, as well as public health and

social care. The adoption of this provision was preceded by the wording of the policy

health policy in the Košice Government programme and the programme of the Government arising

from the election of 1946. "The most influential health policy of the Party (COMMUNIST PARTY) was from

a large part based on the projects developed during the war

Communist doctors. Promoted the Soviet designs, vigorously when in

a modified form, in the spirit of Central European traditions of social medicine

(cf.. Free, Habib, history of medicine in the Czech lands, str.

219.) from adjustments prior to the valid legislation is finally to be

mention the article. 23 of the Constitution, no 100/1960 Coll., according to which: (1) all working

have the right to protection of health and medical care, as well as the right to

material security in old age and incapacity for work. (2) this

rights are assured by the care of the State and social organizations of the

Prevention of disease, health, networking throughout the organisation

medical and social facilities, expanding free

medical care, as well as organised care of safety at work,

sickness insurance and retirement security. " In the year of adoption

Act No. 20/1966 Coll., on the health care of the people, "However, the proclamation that the

"the right to health care is a fundamental civic rights" already rather

than the real status of the expressed desires of the just "the party and the Government". When the next

Balancing in 1970 no longer leaders of our health

to reveal a number of issues that resulted from the fixed

the neglect of investment, "heritage" after the capitalist economy,

přežitků in the relationship between doctor and patient. Significantly, most of the

the new problems of the health system was seen in the realm of

economy, not policy (cf. Free, Habib, History

medicine in the Czech lands, p. 221). The situation in the health sector in the

the 1980s, 20. century then the scientific literature in the field of history

medicine as a critical reference to the critical state of

aware of how the official representatives, critics inside and outside the

mode, including spokesmen for Charter 77, the documents about the health of the

1983-1985.



98. The Constitutional Court and the plaintiffs ' argument put forward in the

a hearing on 1 May 2004. April 2008, that before the adoption of the Charter of

He considered that in the article. 31 Instrument to introduce explicitly the royalty-free or not.

By variation of the chosen free, not according to the plaintiffs '

to interpret the provisions of the article. 31 against his sense of being in the spirit of

a Variant that has not been finally taken ústavodárcem. The Constitutional Court of the

It notes that, in particular in the area of social rights could, in certain

conditions occur and the contradiction between the will of the ústavodárce and the contemporary political

reality. " If in some countries, the Constitution does not match the political

the reality, it is not because one or another institution or one or another form of

not life, but because of the spirit of such a Constitution is (temporarily)

foreign political conditions of the country. " (B. Mirkine-Guetzevitch, Les

Constitutions de â¼ Europe nouvelle, II. édition, Paris 1930, p. 53).



99. The Constitutional Court cannot přisvědčit the full extent of the claim

the plaintiffs, that the right to health care-enshrines in varying degrees and

a series of Department of European States. Of comparative science, it is evident that this right

It is constitutionally guaranteed in varying degrees, rather in the constitutions of the States

joined the European Union in 2004. Such a right is not for example.

guaranteed in the Netherlands or Sweden, elsewhere, for example. in France or Belgium

declared only the right to medical assistance, but not on the medical

help free. Often in this context recalls the Italian Constitution
from 1947, which in article. 32 "guarantees free treatment to the poor" (cf..

translation in: Rick K, e. Wagner, the Constitution of the States of the European Union,

LINDE Prague 1997, p. 191). From the perspective of the comparison is undoubtedly this

the things closest to the example of the Slovak, which arciť the attention of yourself

the appellants, albeit with an emphasis on the different opinions of the judges of Ludmila

Gajdošíkové and Eduardo Báránye. The Constitutional Court of the Slovak Republic

The Decider mentioned finding SP. zn. PL. ÚS 38/03 of 17. in May 2004,

No 396/2004 of in parallel text of the article. 40 of the Slovak Constitution and article.

32 the Czech Charter of a similar proposal, relating to the "spoplatnenia určitej parts

poskytovania zdravotnej poskytovanej on the basis of commitment

zdravotného, ako aj úkonov poistenia and activities that may be

zdravotnou starostlivosťou provided by zdravotného

poistenia tightness, but it súvisia netvoria bezprostřednú súčasť ". The constitutional

the Court observes that the judgment of the Constitutional Court of the Slovak Republic

in the framework of the legally dealt with comparative batch and the argument ruling

the Court of the Czech Republic No. pl. ÚS 14/02. The Constitutional Court of the Slovak Republic

Finally, in the legal sentence of its award Pl. TC No 14/94 (code under no.

396/2004 Z.z.) expressed the assumption that the "free caring podľa

article. 40 of the Constitution, has their "range", IE. that nie movies sa provides

free ".



100. The Constitutional Court for consideration of a legally, philosophically focused primarily on

area of medical ethics. In this regard, notes that the first of the Hippocratic

the oath resolves ethical aspects in the exercise of the medical profession, and

the oath does not have a commitment to the provision of free medical care.

The Constitutional Court is aware of the difference between the perfect medicine, i.e.. medical

the procedures that are in accordance with the latest knowledge of science and technology and

affordable medicine, i.e.. practical status of medical practice. Support

the literature shows that in the century of science and technology, Division of the ideal and

available medicine. It concludes that "it cannot be assumed

that would permanently solve the maths of mercy, could the conflict between the ideal and the

affordable medicine. This is because the default balance sheet there was a confusion

economic problems for the ethical. .. The economy of the State is limiting

factor available medicine, not only, but undoubtedly significant.

Rich State has the resources to reduce the discrepancy between ideal

and affordable medicine to the lowest possible level. ... The problem of the ideal and

affordable medicine is actually not "only" dialýzovaných of patients, but

in various forms, and the urgency of absolutely all. ... Social

prostoupení the issues and appropriate information are assumptions

appropriate and effective involvement of citizens in favour of healthy languishing "

(cf.. H. Haškovcová, medical ethics, Galén, Prague 1994, p. 81-89).



101. A Swiss journalist Jürgen Thorwald, to the subject wrote, that the

"doctors must give politicians the right number" (cf.. J. Thorwald, Patients,

Osveta, Bratislava, 1975). "The fundamental antithesis to health care in

Today, the Czech Republic is the ability to provide patient care to

world level, however, strongly limited financial possibilities "(cf..

Free, Habib, history of medicine in the Czech lands, p. 222). From

the report "Economic overview of the Czech Republic 2008", issued by the Organisation for

economic cooperation and development (OECD), is served, that "in the first stage of the

the reforms have been implemented little regulatory charges, a step that the OECD

recommended already in its previous assessment, and that should help

reduce the need for health care "(cf.. Policy Brief, OECD, April 2008).



102. The Constitutional Court has concluded from the above that the test of reasonableness in the

the case of social rights is methodically different from the test, which is

assessed proportionality for fundamental rights, "because far more here

play the role of the socio-economic aspects. " The test of rationality, in particular in the

the situation, when the Constitutional Court ruled that the rejection of the award could be

because of the conservation of restraint, there is rather indicative and

supporting nature.



103. In combination with the requirement arising from the article. 4 (4). 4 the instrument can be

4 set out the steps leading to the conclusion on the constitutionality of the law, or neústavnosti

who performs constitutionally guaranteed social rights:



5) definition of the meaning and nature of social rights, i.e., a

the essential content. This is the core of social rights in the now over

the case stems from the article. in the context of article 31 of the Charter. 4 (4). 4 of the Charter.



6) assessment of whether the law shall not affect the existence of social law

or its actual implementation (the essential content). If it does not affect the

the essential content of social rights, further



7) assessing whether legislation pursues a legitimate aim; Therefore, whether or not

a major reduction in the overall standard of arbitrary fundamental rights, and

Finally, the



8) consideration of the question of whether the legal means used to achieve

reasonable (rational), though not necessarily the best, the best,

the most effective or the wisest.



104. only if the findings in step 2), namely, that the law of its

content interferes with itself the essential content of the basic law, should

He had come on a variety of test of proportionality, which would, inter alia, reviewed,

whether the interference with the essential content of the law is justified by the overwhelming

the uniqueness of the current situation that would justify such intervention.



105. The nature of social rights therefore implies that the legislature may not

to deny their existence and realization, as otherwise has a wide space to

own discretion.



106. The essential content of the article (the core). 31 the second sentence of the Charter is the constitutional

the embedding of obligatorního system of public health insurance, which

selects and funds accumulated from the individual entities (taxpayers) that is

on the basis of the principle of solidarity could reallocate and allow their

drawing of the needy, the sick, chronikům. Constitutional guarantee, on the basis of

that free health care provides, shall enjoy only the sum of the

Thus the collected funds.



107. The Act established fees, as well as the

the taking of evidence, regulate access to health care, paid for by the public

insurance, thereby avoiding overuse of it; It effectively increases

the percentage of the likelihood that health care really gets those

really sick. This, through fees, as well as to the fulfilment of

the legitimate objectives of the ústavodárce, and that without the means used seemed

unreasonable.



108. Consequently, the contested legislation has not disowned the essential contents

constitutionally guaranteed basic rights, as has been described above, and

the legal adjustment of the monitor nevybočila legitimate aim and is not obviously

-seriously. It can thus be concluded that the contested legal criteria

editing has not been exceeded.



109. The Constitutional Court, the better the test of rationality, assessed the relationship

the provisions of the article. 31, which includes the right to protection of health and

free health care with the objectives and purposes of which asked the legislature

the adoption of the contested regulation. When assessing the suitability of the chosen

the institutes "should be the obligation of the State to ensure the citizens should be inferred

adequate protection from factors that are harmful to their health and public

health care "(cf.. K. K., a commentary on the Constitution and the Charter,

March 2005, p. 861). "The obligation of the State to protect the health and rights

each of the health protection and the obligation to respect each

measures for the protection of health "(cf.. In the.. Bip, the Constitution and the constitutional

the order of the Czech Republic II. Rights and responsibilities, 2. vyd., Prague 1999.

251.) in the test of rationality is judged, whether the challenged legislation

does not bring disproportionate, though-as will be explained later-constitutionally

Conformal intervention in the relations of the patient, the medical equipment and medical

insurance companies, which was in the period preceding the effectiveness of valid

legislation referred to the participants.



110. The Constitutional Court considered that the purpose identified the original intention

the legislature in relation to the regulation of such organization was the accent

health care, which would ensure the effective implementation of article quality.

the first sentence of the Charter, 31 or the provision of locally and time is sufficient and

higher quality health care. This objective should be achieved by

citizens have to be guided by the case law and to the solidárnímu behavior

in relation to the others, or those who need more challenging health

care. The Constitutional Court notes that in finding pl. ÚS 2/08, that

"the degree to which the principle of responsibility and solidarity manifested in the legal

the order of the State, it also specifies the nature of the State (e.g. as a State

social). Recognition of the principle of solidarity rate depends on the level of ethical

understanding coexistence in society, its culture, but also the meaning of the

individual justice and solidarity with others and sharing

their fate in a particular time and place. Solidarity can be viewed from the

individuals perceive as internal or external. Internal solidarity is given by

emotional closeness relation to others is spontaneous,

in particular in the family and in other partner communities. State to the

This relationship typically does not interfere, or only very limited (see family
the legal relations of the modified law on the family). This external solidarity

emotional closeness, and consent of the individual lacks with its application

It is therefore zdráhavější. This is an example of the solidarity of the rich with the

poor, capable, healthy with less capable with sick. In this State

area of your power-vrchnostenskou function very actively.

Through the principle of solidarity, that is, redistribution takes place. the movement of the

transferring resources from one to the other-to those in need ".



111. The Constitutional Court then considered within the test of reasonableness, whether for

the area of social rights by the policy is already in the article. 4 Declaration

the rights of man and of the citizen in 1789., that "freedom is the ability to do everything,

do another "and deduced that the formalistic adherence to fact

medicine for individuals in the broadening of the concept could rather give rise to

reduce the levels of free medical care covered by the public insurance in the

the right sense for all members of society. At the time of

decisions, the Constitutional Court has established that the introduction of the Institute

regulatory charges clearly did not allow the achievement of the

the objective pursued, the opposite is, moreover, served from the witnesses. The Minister

Tomáš Julínek as e.g. health care. He stated that "to the pharmacies, the returns for

four billion of unused medicines "and that after the effectiveness of the contested act

"the number of the recipes in the Czech Republic decreased by forty percent-including

regulatory charges, both in outpatient care, in the provision of medicines

There was already a first quarter to save 1.75 billion ". A priori

condemnation of presumující without a certain dose of respect for the work of the experts

those connected with the intention of the reform, that achievement of the objective is

excluded, would be for the futuro-as elaborated even further-the negation of

options any empirical reasoning.



112. It will be the duty of the legislature to analyze the impacts of the regulatory

the fees for each individual fee, assess whether prejudice

the existence or rights flows from the implementation of the article. 31 of the Charter, whether

is it a legitimate objective pursued and whether this or that fee is reasonable

the means to achieve this objective, all of this with the evaluation of the impact on

options for different groups of payers of regulatory charges in correlation with

rights of financial or other assets profity enshrined from other laws

the rights of the industry than are the laws implementing article. 31 of the Charter. From

evaluation of the legislator must then draw any derogation (or.

novelizující) consequences. The current review of the legal provisions, however, allows the

establish justification only on the abstract constitutional arguments,

not on the factual effects of law that in proceedings before the Constitutional

the Court is not possible to individually detect.



113. It is not possible, to the Constitutional Court reasoned derogation consequences

already now, and across the Board (that is, in relation to all regulatory charges),

Therefore, this analysis of the (so far) does not exist. As well, it would be inappropriate,

If the Constitutional Court referred to the analysis in the context of proving himself now in

proceedings of the abstract control standards carried out. In effect, this would

The Constitutional Court for the futuro (despite the principle of restraint) admitted that the

will in any case analyze on design always shortly after

the entry into force of this or that law, what he has (or what its

individual provisions), and it's conceivable angles from treated views

the impacts. This would, however, got the Constitutional Court into the dangerous trap of not only

Therefore, when the provision of a basis for such analysis would be

rely on the power of the Executive (or legislative), but mainly because

This would (in the implementation of the said analyses immediately after the adoption of the new legal

editing anything) clearly entered the political arena and became a

the place of performance of the role of the protector of the constitutionality of the naked controller or

by the impact of legislation. Therefore, it is the primary duty of the

adapt to the legislature (albeit temporary) reform of the legal status of the

factual findings, which will be in the process of the application of the statutory

provisions have been made. It's all the more if they were specific

unacceptable effects of public finance reform in certain

the common characters of definable groups of the population, not just random

individuals.



114. From the above it is clear that an abstract review of the law cannot

in theory, review and reliably exclude all its conceivable

the effects of the personal sphere of mailing standards. Any such individual

interventions are, however, of course, continue to reparovatelné standard

procedures, including the constitutional complaint.



115. If it happened-on the basis of the Executive by the legislature made or

him to evaluate the presented analysis of legal adjustment-the obvious, that the

She edit-although perhaps only in partial components-out criteria

stated above, should the Constitutional Court in the case of inactivity

the legislator to intervene; then his intervention was the real protection

the constitutionality and not the communication of political attitudes.



116. The Constitutional Court also considered whether the legal means used to

the achievement of a legitimate objective is reasonable. As already stated, the Constitutional Court

in its finding, the sp.. PL. ÚS 2/08, "with social rights can be stated,

their summary is just the fact that they are not on the difference

from the fundamental rights and freedoms, directly enforceable on the basis of the Charter.

Their stupidity is in need of legal implementation, which is

at the same time, however, the condition of the specific implementation of each of the rights ". According to the

article. 31 the second sentence of the Charter gives a right on the basis of public insurance

free health care and to medical AIDS under conditions which

lays down the law. From the language of the interpretation of the provisions of article. paragraph 31. 2 of the Charter of

It can be inferred that the conditions would have been filled with e.g.. in such a

the law, which would have increased premiums for each citizen to

health care, for example. the amount of 416.66 CZK per month, and under the current

the determination of the amount of the bonus in the range from 30.0 CZK 5.000,-CZK per year,

tiered, depending on whether and how many times the beneficiary visited a doctor,

He was hospitalized or submit such pharmacist or thus recipe.

The Constitutional Court established in the assessment model considered and compared

in particular, whether the effect of the expenditure side of the notional

the budget of the citizen of the Czech Republic, whose article. 31 the second sentence, it protects

different in the case of the contested legislation and from the top of the outlined

a hypothetical model and came to the conclusion that in the economic consequence would be

There was no difference.



117. According to the contested act is a "regulatory charge" tv

medical equipment. However, this provision cannot be interpreted without the

context, which is made up of a linked system of rights and synallagmaticky

the obligations of the three stakeholders, i.e.. the patient, the medical

equipment and health insurance. Hypothetically, you can certainly imagine

a Variant, that the "regulatory fee" was conceived by the same amount as the

part of the premiums for health insurance and paying would be

health insurance, which would later on this insurance, which would

not be charged nor as a select error, without redistributing the contracted,

or of the Act has increased the payment to the competent medical equipment. This

the model, which would nepříčil to a linguistic interpretation of the article. 31 of the Charter, however,

had in its consequences for the patient the same impact as the current model,

which is built on the principle that it is paid directly to the final recipient.

Whereas the regulatory fee is part of the financing of the

health care, reflected in this direction and to the relationship of the medical

equipment and health insurance, respectively. will affect not only housekeeping

medical equipment, but also the health insurance companies.



118. The Constitutional Court finally judged by the ratio of the objectives of reform and social

rights, and also with the accent on it, whether in the case that it is in the contested

legislation to give priority to the interests of the protection of health within the meaning of article. 31

the first sentence of the Charter, is minimized the possible intervention in social law and

the meaning of the article. 31 the second sentence of the Charter. The Constitutional Court did not find that the

regulatory charges should generally "a strangling effect" and amounted to realistically would

for any health care or medical tools inaccessible. In

individual specific cases can be followed under section 16a, paragraph. 2

(a). (d)) of the Act on public health insurance, according to which the regulatory

the fee does not apply if the insured person, which is established by the decision,

notification, or a certificate issued by the authority to help the material need of the

the levy, which is provided by a special regulation, not the older 30

days. Not to be overlooked either,-CZK 5,000 limit that section 16a paragraph. 1 of the law on

public health insurance. In the context of the internal relationships of solidarity

cannot be teeing grounds; the institutes of mutual maintenance obligations of parents and

the children, the maintenance obligations between other relatives, maintenance

obligations between spouses divorced spouse maintenance allowance

Food and cover some of the costs of the unmarried mother referred to in part three of the

Act No. 94/1963 Coll., on the family, as amended (hereinafter the ' law on the

the family "). You cannot look through or from the provisions of the law on the family of the
parental responsibility or eg. from the obligations of a child living in the

common household with parents within the meaning of section 31, paragraph. 3, 4 of the Act on the family.



119. The Constitutional Court is also here-although on the annulment of the contested

the law determines the procedural reasons, i.e., after the exclusion of two parts

the proposal to separate consultation procedures laid down in the three-

aware of this, as has been said above, the existence of reciprocal links and

the consistency of the provisions of the contested act or law

changed, supplemented and the newly adopted legislation and standards (see

article. 88 of the award). This interdependence. The constitutional

specifically, the Court took into account in finding SP. zn. PL. ÚS 2/08, where when

deciding on the cancellation of the provision of health for the first three days of the working

the inability of the contested Law stated that the abolition of the

"of course, remained intact and the obligation to pay the so-called. regulatory

the fees ". In the proceedings did not preclude the possibility that the stabilization

In addition, public budgets, potentially saddling the expenditure side

its budget of the citizen of the Czech Republic, on the contrary, in different variants

has not increased his income side, for example. in the form of tax reductions,

the increase in income, by changing the amount or conditions for the granting of social benefits,

in many cases, even the limit of 5.000,-CZK, etc. You can therefore conclude that the

generally from the perspective of article. 31 and article. 4 (4). 4 of the Charter of regulatory fees

provided by law are within the limit, which saves the nature and meaning of access

to decent health care, paid from public health

insurance, and these charges do not form a barrier to this restrictive approach

(do not have "a strangling effect") and in the context of the benefits provided by the

the social security system.



120. It should be recalled that the basis for any intervention of the constitutional

the Court in this complex issue cannot be concluded without a formal

regardless of the substantive and factual side of things. In such a material

the light of the criterion is the intensity of the effects, which may have assessed the legal

the adjustment on the realization of the right to free health care on the basis of the

public health insurance. The assessment of the admissibility of the principle

Institute of regulatory charges, as set in the plane of the assessment

the effective nature of the duties to which individuals are addressed

by editing the saved. In this respect, therefore, the most important consideration, role playing

whether stored obligation, in this case the financial payment is

the intensity, i.e., its amount, individually or in whole, such

the result of the right of the individual, which goes against the terms of the guarantees

provided for by the Charter. Such a fact or of the taking of evidence before the constitutional

the Court has not been detected.



121. The Constitutional Court therefore concluded that the challenged legislation, regulatory

the charges in the test of rationality, or from the perspective of law

conditions, will hold up. The Constitutional Court in this regard and, in particular, now in

relation to the reform of the health system, or to the field of social rights,

recalls-even though this issue addresses the following stage for the first time-

MJ. for the futuro, in terms of finding SP. zn. /TC 11/02 (collection

the decision, volume 30, finding no 87, announced under the no 198/2003 Coll.)

the reason for which "the Constitutional Court can overcome its own case-law, it is

changing social and economic conditions in the country or a change in their

the structure, or change the cultural ideas of the company. For more options

is the change or shift in the legal environment formed by the podústavními law

standards, which, in summary, affect the inspection of constitutional principles and

principles, without, however, then deviating from them, and above all, do not restrict the principle of

Democratic statehood (article 1, paragraph 1, of the Constitution of the CZECH REPUBLIC). Another option for

change in the case law of the Constitutional Court is to change or supplement these legal

standards and principles that constitute the binding terms of reference for the constitutional

the Court, IE. those that are contained in the constitutional order of the Czech

of the Republic, unless, of course, changes contrary to the limits laid down

article. 9 (2). 2 of the Constitution, i.e.. unless the changes to the essential requirements

democratic rule of law. " In relation to the matter under consideration, that means

to assess issues related to accessing social rights

The Constitutional Court of statically, but with an extra emphasis on it, what is the status in

the time of its making.



122. The Constitutional Court then linked to the broader context described above

coming out of that article. 31, para. 2 of the Charter guarantees the citizens of the

the basis of public insurance the right to free health care and to the

medical AIDS under conditions provided for by law, and he was within the meaning of

article. 4 (4). 4 of the Charter of aware-as already indicated above-that the

legal conditions cannot go so far that it would hit the very essence of and

the meaning of the right to free health care.



123. The Constitutional Court is therefore dealt with the introduction of regulatory charges

and using income from selected regulatory charges, bearing in mind the

the question of whether the introduction of regulatory charges may be an essential step,

that would have made of the free medical care within the meaning of article. 31 of the Charter of

paid health care.



124. First of all, it should be stressed that the purpose of the introduction of the regulatory

the fee was the regulation of the behavior of patients in relation to health

devices and the procurement of medicines in pharmacies, as well as behavior between

patients to each other. As has already been said, this regulation aims to allow the

the provision of quality health care and medicines to those who actually

need, and at the same time deepen the solidarity between patients, respectively.

potential patients. The regulatory element can have in practice a different form of

I have a different impact. Striking is certainly the efforts in the context of the law on

the stabilization of public budgets to optimize drawing on public resources,

and by regulation to limit the overuse of medical care or the waste and

inefficiencies in the procurement of drugs. The essential factor is, however,

subjective page regulation. In addition, that should lead to the described

the change of behavior in relation to medical services and supplies,

It reflects the fact that although there is a right to free health

care, health care is a medical device as a cure

pharmacist paid, and that the third body-health insurance.

The principle of solidarity is reflected in the bilateral relationship, and how to

who solidarizuje with someone, to whom it is

solidarizováno. On one side is the one who should not be unlimited

crave the health care to the extent required by the need to

the other one, who should recognize that the provision of health

care of him are resources from public health insurance

reallocated so that he draws more from them than the one to whom health care

has not been granted.



125. As regards the second question, that is. whether there has been a shift in free

health care to paid, the Constitutional Court recalls in particular that, in

the past interpretation of the concept of "health care", or free

health care. In the award of 4 April. June 2003, SP. zn. PL. ÚS 14/02

said that "the ban on the direct payments is therefore mainly concerns itself with

the performance of free health care. " In case conducted under the SP. zn. Pl. ÚS

14/02 the Constitutional Court has rejected a proposal from a group of members of the Chamber of Deputies

The Parliament of the Czech Republic on the abolition of the second part of the sentence of the provisions of § 11

paragraph. 1 (a). (d)) of the Act No. 48/1997 Coll., on public health

insurance, as amended, was then expressed by the words "or in connection with the

the provision of this care ". Deduced also that "nothing to

care provided in excess of the conditions for the free care direct

payment from insured persons could be selected ". Of the different opinions of the judges

Vojtěch Cepla, Vladimír Čermák, Vojena Güttlera, Paul Holländera,

Jiří Malenovského, Jiří Mucha and Antonín Prochazka is served,

According to the provisions of article disentujících of the judges ". 31 to determine the law

the conditions for the provision of free health care, not care, which

health care is not, but is part of meeting the necessary needs of the

man independently of health protection. Law in that perspective exceeds the

constitutional constraints that make it impossible to collect from policyholders

direct payment for care, which is care health and which itself

does not serve to protect the health of the insured person. Creating biased and

unreasonable differences between insured persons, which is such a free non-medical

care is provided, and those insured persons, which is not provided, though

both categories are forced to meet independently of the corresponding necessary

at the same time, where appropriate, provided health care. "



126. The Constitutional Court is "bezplatností" in the past dealt with already in

the context of the interpretation of the article. 33 of the Charter. In the award of 13 April. June

1995 SP. zn. PL. ÚS 24/94 (collection, volume 3, decision, find no 31,

promulgated under no. 165/1995 Sb.) He stated that "the service of education

no doubt means that the State bears the costs of establishing schools and school

facilities, maintenance, however, does not require so-called. tuition, therefore,

the provision of education at primary and secondary level for consideration-according to the

the interpretation of the concepts of the right to free education, which submitted the appellants,
the State should ensure free provision of school

education at primary and secondary schools connected, e.g..

equipment of the slippers, Briefcase, the finance charge memo, writing utensils, exercise

herself, etc. It is obvious that the royalty-free education can consist of

that the State shall bear all the costs, which the citizens in connection with the realisation of the

the right to education. The State, therefore, may require the payment of part of the

costs in relation with the realization of the right to education, and the Government has to

no doubt such a procedure permissions. It in no way

does not question the principles of the free education at the primary and secondary

schools (cf.. A collection of findings and resolutions of the Constitutional Court of the CZECH REPUBLIC. 3,

1995, no. 31, p. 238). The Constitutional Court finding that distinguish between

free education and related activities, which also require

costs, but are not directly teaching or training process.

By analogy to the Constitutional Court now adds that health care and its

financing is only an important subset of health care financing and

without a functioning health system would be certainly possible to provide

quality health care.



127. The Constitutional Court is aware of the multifunctionality of the regulatory charge,

because in addition to the regulatory element here is the utilitarian aspect of

the fact that the medical device regulatory fees is about 1.20 m to

This, in addition to free medical care could function better,

provide related activities or improve the personnel aspects and

the level of the environment in which health care is provided, etc. In the light of

the multifunctionality of the regulatory charge cannot always be sure

clearly the answer to the question, how it was loaded with the regulatory

the fee selected from that particular patient, because

splynuvší resources of regulatory fees paid may be

differently from case to case used to the objectives of the amended as indicated,

Alternatively, other variants. The Constitutional Court of the taking of evidence

not satisfied that payment of the regulatory charge the patient paid

directly and exclusively by the health care or medical equipment.



128. From Visual angle is indicated by the Constitutional Court in the first place

the regulatory fee set out section 16a paragraph. 1 (a). (f)) of the law on

public health insurance. I took into consideration the fact that the appellants themselves

acknowledge that charging "hotel services", i.e. the determination of the

fee for accommodation and meals in the hospital, do not drift from the limits of the

the constitutionality ". In the case of transactions within the meaning of § 16a paragraph. 1 (a). (f)) of the law on

public health insurance is quite evident, that cannot be

free health care or medical equipment within the meaning of article. 31

Of the Charter, but in parallel, other related services provided. Here you can

fully assume the above argument disentujících the judges,

Even so, the majority opinion is in the context of the consideration of the draft

maintained under Pl-14/02 did not accept as part of the justification for the award of

the reason that he only appeared as "vybočující from the task before which

The Constitutional Court in connection with the proposal of the group members is ". In the opposite

the case would then be taken ad absurdum--article. 31 of the Charter should be based

entitled to free accommodation and hospitality services beyond medical

equipment and regardless of whether they are or are not provided in the

the context of the health care or not. In this section, the

provided that the provisions of section 16. 1 (a). (f)) of the Act on public

health insurance has not been challenged and for other reasons (conformity

the legislative process), the proposal was clearly unfounded.



129. The Constitutional Court shall be dealt with in the above outlined terms of the constitutional

konformitou introduction of regulatory charges in other cases

referred to in section 16 of the Act on public health insurance. How

documents and example charges within the meaning of § 16a paragraph. 1 (a). (f)) of the Act

on public health insurance, is not significant, but the name of the payment

its purpose. The Constitutional Court took into account that, on the one hand-

as regards the concept of "charge"-is a different definition of taxes

It is assumed that "the concept of charges in the scientific sense, always financially

cover with the concept of charges within the meaning of the legal "(cf. financially. K. Čakrt,

Fees, in: dictionary of public law of the Czechoslovak, III., Brno

1934, p. 204), on the other hand, the concept of "charge" was used and

also used to indicate the nature of the payments, which are not payment

public service. For phone "fee". within the meaning of

the provisions of section 1 of Legislative Decree No. 16/1925 on a batch of phone

the fees "properly according to airtime, and both airtime for calls held from

public talking shop, as well as airtime for calls long distance ", in the valid

completely laws vžitým wrong indication "late fee" (§

517 paragraph. 2 of the Civil Code), which is quite clearly by the

private law. It is therefore clear that the designation "regulatory charges"

not in terms of the initial právněterminologického of the importance of accurate,

However, some významovému shift corresponds to the concept of "charge" to the concept of

"payment". The Constitutional Court also dealt with the question of whether the "regulatory

the fee "is not" price ". Even the notion of "price" is defined differently in

economic theory and právněterminologicky. The Constitutional Court ruled, firstly,

that "regulatory fee" is not the price within the meaning of Act No. 526/1990 Coll.

prices, as amended, as it is not concluded in purchase and sale of goods

not even detected by a special Act and for purposes other than sale

(section 2 of the cited law) and the law cannot apply to him, since according to section 4

the Act the Act does not apply to the remuneration, remuneration, fees, damages and

costs and interest, covered by specific provisions. Generally, it is then

characteristic, that price is the equivalent of the thing, the product, performance, work

or service. "Regulatory fee" is not the equivalent of the first

view and cannot be provided free health care, as

then the above would not be the same for the treatment of elevated temperature

a general practitioner, and vice versa when complex Health Act

physician-specialists. In all cases, the regulatory charges are factually

This is the payment of the patient's medical facility, according to sui generis

the principle of the ut facias. In this context, the Constitutional Court took into account the

a certain parallel between medicine and other professions or

artistic professions and concluded that even a doctor or medical

the device carries out related activities, without which there would be none, and without

which would not have been able to provide medical care at all. Such activities,

as for example. administrative work, legal aid, insurance,

transport, cleaning, etc., is developing a medical device to ensure its

operation and readiness to provide health care.

Not to be overlooked, for example. the remuneration of lawyers is based on traditionally from the

resolution rewards for provided legal assistance, reimbursement of cash expenses

and directorial flat rate. The Constitutional Court did not find the reason why they could not be

the model sketched out constitutionally applicable to the case of conformally doctors-

health care facilities. The fact that the payment is made as the performance in ut

facias, then expresses the proportion of the contribution of medical devices on the

related activities depending on where their services are most used.

The Constitutional Court did not find anything on this principle, unjust, and supplies,

that the principle of equivalence and the solidarity of the contested legislation

expressed in the determination of the limit of payments according to section 16b, paragraph. 1 of the law on public

health insurance. The Constitutional Court adds that article. 31 of the Charter of

It assumes that health care and medical equipment will be covered by just

from the public health insurance system, however, does not provide for the obligation of the

public insurance to pay for all health care or health

aid is not. In effect, this would be constitutionally Conformal

the interpretation of the provisions of the article. 31 of the Charter and the full projection into the article. 31

Instrument foreseen by the law has led to the fact that by means of the

public health insurance were used if and only if, the

would a Charter guaranteed health care and health products.

The Constitutional Court does not find it, the fact that the payment according to the principle of the ut facias

legally there are nepřiléhavě identified as the reason of unconstitutionality

the contested provisions. In terms of seznatelnosti and clarity

the law is not, in the opinion of the Constitutional Court, as it is the essential one or the

the Institute is named, but whether you can legally to understand what rights and

What obligations to participants of legal relations governed by law,

or how it is filled with the ability to acquire knowledge of the law within the meaning of

sentence scire leges non hoc est verba earum tenere, sed vim ac pot

estatem.



130. Similarly, the Constitutional Court dealt with the issue of "regulatory

the fee "and" Supplement to medication. " Even in this case, the Constitutional Court examined the

the nature and the purpose of those payments. Firstly, he took into account that the "payment for

recipe "in the Czech lands and in a situation where the Constitution was

guaranteed free medical care, its tradition. This payment is based on
from the principle to the ut des, and also it cannot be assessed without considering the

synallagmatického links to rights and obligations of the patient lékárenského

equipment and health insurance. This payment is paying

Pharmacy, in the framework of the system of financing of a significant part reflects

the intention of the regulatory fee payment reduction supplement to medication.

Price decision of Ministry of health of 20 December. December 2007,

laying down the conditions of price regulation of medicinal products and

foods for special medical purposes, medicinal ways to price controls

products and foods for special medical purposes, details of the price

the regulation of medicines and foods for special medical purposes

the maximum price, the rules for the pricing of medicinal products and the rectification

foods for special medical purposes, the elements of the proposals on the establishment of

the maximum prices of medicines and foods for special medical

purposes, its changes and cancellation and rules for determining the maximum prices for

the performances of the trade in medicinal products and foodstuffs for special medical

purposes (hereinafter referred to as "the price of decision"), in the section of these. 5 provides that

the price of a regulated maximum price (with exceptions)

must be subsequently reduced the amount calculated according to the formula: "the regulatory

the fee for the dispensing of the medicinal product (0.25 * (ATAN (CV/50-2.5) + 1.6))

with CV = price of the manufacturer or importer without VAT ". Of this procedure, and the

deepening the degression percentages of the maximum margin, how

derived from the parts in these. 3 the price of the decision, it is clear that the

the introduction of regulatory charges found their reflection in the total targeted

the mechanism of determining the final price of the medicinal product, when lékárenskému

the device, although it is paying, the remains of the selected regulatory

in principle, the minimum charge amount. Witness Julínek, Minister

health, in response to a question about the part of the regulatory charge,

that remains the pharmacies as profit, he said, "no", with

regard to the reduction in the price of the medicinal product and the "administration fee".

Also for this type of regulatory charge is a very significant factor

the regulatory function, and thus the fulfilment of legitimate objectives above.

As a result of the taking of evidence is carried out, the purpose of this regulatory

the charge lead patients to the responsible approach to the procurement of drugs, so's

to get the patient to a medical prescription only medicines procured, which needs and

consume, not how it is now, as there is a General

awareness happened-had the opportunity to procure the supplies or in the Pharmacy

pick up only, therefore, to the doctor who prescribed it to him,

the impression that is treated with medication, however, haven't yet and neither is the Pharmacy

did not return. The expected effect, more economical management of medicines no longer can be considered

period of effectiveness of the contested legislation. Even in the case of drugs is

the ceiling of 5,000,-CZK an important element promoting solidarity with patients,

who before the effect of the contested legislation for pharmaceuticals paid on

the higher amount of the drug. From the testimony of the Minister of health

He took the Constitutional Court established that the effects of this form of solidarity is already in

practice from the effectiveness of the contested regulation in specific cases

seriously ill citizens. The Constitutional Court did not find a

unconstitutional in the base of the very existence of the supplement to the drugs or

paušalizaci, and it once again in a situation that would have led to "a strangling effect".



131. The Constitutional Court found Constitutionally conformist also determination of penalties

medical device for nevybírání charges and competence of the health

insurance companies grant this penalty. As has already been said, health care is

provided in the health system, without which it could not be

provided a high-quality event. at all. Medical equipment is not

the rightholder within the meaning of article. 31 of the Charter, the citizen, or the patient.

Medical equipment is both a health care provider, and

body in the health-care system that performs the functions of the business,

economic, financial, industrial, research, awareness-raising, etc.

The fact that the medical device regulatory charges shall not be imposed, it is

deliktem, which is the object of interest in the functioning of the health system and

its protection. A certain analogy can be found in the sanctions, imposed for example.

for infringement of the competition rules or modify the protection

of the consumer. Even in these areas is in breach of the obligation,

of unfair distortion of private relationship, stored

public penalties. The consequences of non-compliance with the obligation to withdraw regulatory

fee may occur for example. in the deformation of access to healthcare

device, or to reduce the quality of where the medical device

nevybírající fees in excess of the capacity of the patients. The Constitutional Court

He adds that it is the will of the legislature, which will equip the body powers

public sanctions, if sanctions imposed as a result of sound

administrative proceedings and the decision on the sanctions shall be subject to the Court

the review, which is in the case of the contested legislation is met.



132. In this respect, the Constitutional Court assessed only if it is to continue to

free medical care due to public insurance available and

to the conclusion that, at least with respect to the provisions of § 16a paragraph. 2 (a).

(d)) of the Act on public health insurance, and on the determination of the limit of 5.000,-

CZK for the section 16a paragraph. 1 of the law on public health insurance it

It is. The Constitutional Court did not find the law adjustment of regulatory charges

unconstitutional, however, will be on legislators, to the effects of this adjustment

watching, follow up and a valid law or language and corrected,

to the availability of health care has been ensured, since they all still indirect

prevent access to free health care paid for by the public

insurance would, in effect, could mean violations of the article. 31

Of the Charter.



133. The Constitutional Court also backed the plaintiffs in relation to

novelizovanému the text of § 17 paragraph. 5 of the Act on public health

the insurance. The plaintiffs claim that this provision is inconsistent with the

the existing case law of the Constitutional Court as regards the individual

the regulation is not possible. A situation comparable to the one that assessed the

The Constitutional Court in finding SP. zn. PL-36/05, clearly it is not. The contested

the provisions of § 17 paragraph. 5 is the empowering provisions for the Ministry of

of health to issue a list of medical procedures with point values.

This list in accordance with the provisions of the contested should have with regard to the

the circle of addressees, which is not individualizován, the nature of the

normative and not of the individual administrative act. The contested

the provisions, which is "a list of medical procedures with point values

the Ministry of health shall issue a decree ", in principle do not differ for example. from

like the provisions of the Act on the legal profession, according to which the Ministry of

Justice shall be empowered to determine the remuneration and allowances of the lawyer, which happened

the Decree, which in the case of non-contractual remuneration is also given a list of

the acts and the tariff value for individual unspecified circuit attorneys

registered in the list of lawyers. The way that the legislator has chosen is

standard and in analogous cases, nezpochybňovaný. About the case, what

proponents have in mind, though, if the Ministry of

the health sector was empowered to issue different adjustments in the point

values for individual health, for example. for the hospital in St.

Anny in Brno differently than for other hospitals in the Czech Republic.

The Constitutional Court adds that if the Ministry of health following the ultra

consider vires progressed and published by individual Ordinance, which should not

the character of generally binding legal regulation, but hidden

the individual administrative act, it would certainly be appropriate against such

Decree brojit, the legal authority itself, however, the Constitutional Court as a

unconstitutional did not.



134. In conclusion, it can be summarised that the Constitutional Court had no reason to cancel the

the contested parts of the law for the unconstitutionality of their content from one

from the above options. For the rejection of the proposal would be sufficient

separately, only that the Constitutional Court ruled that either due to

restraint and minimize the intervention space for derogation is not finding

or that the contested legislation is unconstitutional because it challenged

legal provisions have been adopted according to his opinion, in the context of the article. 4

paragraph. 4 of the Charter and have stood the test of rationality. The Constitutional Court had so

in theory, basically the choice chooses to justify your

the decision of only one of the lines or all the circuits. Then, when

in this particular case, which touches on very serious issues

life and health, decided for a more comprehensive approach, and, therefore, considering the

reasons of all circuits, adding that among them hierarchically favors

in terms of the findings in case sp.. PL. ÚS 24/07 and SP. zn. PL. ÚS 2/08

-Bearing in mind while content consistency and a unifying context

the Act on the stabilization of public budgets and podotýkaje, that the decision about the

the exclusion of this stuff and things kept below SP. zn. PL. ÚS 2/08 not different

than a purely procedural character-the reasons which have led it to exercise restraint
and minimize the intervention. The fact that the challenged legislation was not

found to be unconstitutional and that have stood the test of reasonableness, then leads to the

the conclusion, that the intervention of the Constitutional Court in analogous cases could

come into consideration only in the case of flagrant arbitrariness, arbitrariness and

was the legislature that-as has been said repeatedly, and

suggested-in this case was not found.



XII.



135. On the basis of all the foregoing, the Constitutional Court of the proposal in

part of the present, under the SP. zn. PL. ÚS 1/08, rejected [section 70 (2)

Act No. 182/1993 Coll.].



The President of the Constitutional Court:



JUDr. Rychetský in r.



Different opinions under section 14 of Act No. 182/1993 Coll., on the Constitutional Court,

as amended, the judges took the decision of plenum

Francis Skinner, Turgut Güttler, Pavel Holländer, Jan Musil, Jiří

Nykodým, Pavel Rychetský and Elisabeth Wagner.