On behalf of the Czech Republic
The Constitutional Court decided on 27 September 2006 Plenary composed of the Chairman Pavel
Rychetský a judge Stanislav Balik, Frantisek Duchon, Vlasta
Formánková, Vojen Güttler, Pavel Holländer, Ivana Janu, Vladimir
crust Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým,
Miloslav Vyborny and Elizabeth Wagner of the group of senators
Senate of the Czech Parliament to repeal the provisions of § 34 para. 2 sentence
second, § 34 para. 3 point. a) § 34 para. 6, § 40 and the Annex to Act no.
245/2006 Coll., on public non-profit institutional healthcare facilities
and amending certain laws,
The provisions of § 34 para. 2, second sentence and third sentence, § 34 par. 3 point. a)
§ 34 paragraph. 6, § 40 and the Annex to Act no. 245/2006 Coll., on public
profit institutional health establishments and amending certain
laws are repealed day this judgment.
First On 4 July 2006 the Constitutional Court received a petition from a group of senators
Senate of the Czech Republic legally represented by Prof.
JUDr. AG, PhD. (The "Offeror") pursuant to Article. 87 paragraph. 1 point.
) Of the Constitution of the Czech Republic (hereinafter "Constitution") and § 64 et seq.
Act no. 182/1993 Coll., On the Constitutional Court, as amended
(hereinafter the "Law on the Constitutional Court"), seeking the annulment of § 34 para. 2
second sentence, § 34 paragraph. 3 point. a) § 34 para. 6, § 40 and the Annex to
Act no. 245/2006 Coll., on Public Non-Profit Institutional
health establishments and amending certain laws.
Second The petitioner stated in the proposal that it is not challenging Law no. 245/2006 Coll.
as a whole. Challenges only the above indicated provisions that are contrary to the constitutional order of the Czech Republic
. In the opinion of the petitioner
contested provisions are in conflict with Art. 11 of the Charter of Fundamental Rights and Freedoms
(hereinafter the "Charter") and Art. 8 and Art. 101 of the Constitution, because
constitutionally impermissible way interfere property rights and the constitutionally guaranteed right to
autonomy, ie the right to territorial self
units independently manage their own affairs.
Third The proposal to repeal the provisions of § 34 para. 3 point. a), § 40 and Annex
to Act no. 245/2006 Coll. The petitioner stated that Act no. 245/2006 Coll.
Creates so. Network of public non-profit institutional health facilities
(hereinafter referred to as "public health facilities") and assumes
that this network will form the one hand, health care facilities currently existing
(which are calculated in Annex to the Act) as well as medical equipment
emerging that will have been since its inception
appropriate legal form in accordance with § 1 para. 1 of this Act.
Directly from the law will be the network of public health facilities so that
classified medical devices which are listed in the Annex to the Act. Specifically
it is a medical facility, founded by the state, respectively.
Relevant ministry, as well as medical facilities, which are in the form
governmental organizations and their founders are municipalities or regions, as well
are included in health care facilities with the legal form of business
company (joint stock companies and liability limited).
The founders and shareholders of these medical devices are also
municipalities and regions. The petitioner is of the opinion that if individual
medical equipment, including assets, rights and liabilities which were associated with
their existence, were to municipalities and counties converted into Law no.
157/2000 Coll. the transfer of certain assets, rights and liabilities from the assets
Czech Republic to the regions, as amended (hereinafter
"Act no. 157/2000 Coll.") and Act no. 290/2002 Coll.
transition to some other things, rights and obligations of the Czech Republic's regions and municipalities
civic associations involved in physical education and sport and
related changes and amendments to Act no. 157/2000 Coll., as amended || | amended (hereinafter the "Act no. 290/2002 Coll."), and municipalities and counties
is based on them have become founders of medical devices whose
legal form was changed from a state-funded organization, respectively.
Organizational component, contributory organization of the region, respectively.
organizational component regions or communities, their legal regime after the transfers carried out
Governed by Act no. 250/2000 Coll., On budgetary rules of territorial
budgets, as amended.
Contested provisions of Law no. 245/2006 Coll. But will local governments
deprived of the ability to determine the existence and operation of these subsidized organizations and organizational units
. On the contrary, the Ministry of Health gives permission
decide on the extent and type of health care that should be
these medical facilities provided (§ 33 of Act no. 245/2006 Coll
.), And with minimal interference by the founder, who
to remain a self-governing regions, in these matters.
Fourth According to the petitioner's opinion, the Act no. 245/2006 Coll. does not provide,
to medical facilities, respectively. their founders were part of the state
reimbursed costs to ensure that they will
directive manner determined by the ministry. This leads to interference in
financial autonomy of local government units, which is guaranteed in Article
. 101 Sec. 3 of the Constitution. At the same time it is an affront to their rights
property within the meaning of Article. 11 of the Charter, because they will be prevented
decide on the disposal of assets that medical devices will
have to fulfill the tasks assigned to it by law and the decision of the Ministry . If
breaches these obligations will be imposed either
territorial self-governing unit, as the founder of a public health care facility, or
also medical facilities directly, a significant amount of fines (cf. § 38
Law no. 245 / 2006 Sb.). Said intervention will still happen under
law, and we can assume that even in the public interest, but will not guarantee
equivalent. In this regard, the petitioner stated that Act no. 245/2006 Coll
. will impact not only on the functioning of governmental organizations and
organizational units of local government units, but will also lead
interference in the functioning of purely private entities, ie.
trading companies, health providers. In this context
petitioner referred to the Constitutional Court findings, published in the Collection of Laws under
no. 404/2002 Coll. and no. 211/2003 Coll.
Fifth The petitioner also stated that the State has transferred to local self-government units
obligation to manage the assets of medical equipment and perform the function of their founder
against the will of local governments
those laws no. 157/2000 Coll. and no. 290/2002 Coll. Resigned to the fact
its duty to provide citizens with free health care on the basis
public insurance and severity of its security transferred to local government units
. This burden on local government
adoption of Act no. 245/2006 Coll. State retained, but withdrew them the possibility of
scope and conditions for the provision of free to decide [
course under the conditions of Act no. 48/1997 Coll., on public health
insurance and amending and supplementing some related laws, amended
amended (hereinafter "law no. 48/1997.")].
6th Even stronger is by the petitioner interference in purely private property in the case
provisions of § 40 para. 5 and 6 of the Act no. 245/2006 Coll
., Which relates to health care facilities providing health care
having legal form of company. In this case
is determined (§ 40 para. 5) that the ownership right to the property free of charge
inserted into joint stock companies, which are listed in the Annex to
law, free of charge goes to the founder. No distinction is one that
property into a medical establishment placed under what conditions and with what purpose
. Also ignores that such property could be evaluated in the meantime
, so whoever property into joint-stock companies put in,
actually losing potential revenue from its appreciation.
Nature impermissible interference with the acquired rights has also to § 40 para. 6
Act no. 245/2006 Coll., Which establishes
shareholder company with limited liability, which acts as a medical facility, the right to || | settlement share in connection with the forced termination of its participation in
company. The loss of the shares in such a company is not
no public interest because medical facilities in the form of trade
companies can equally well perform the tasks associated with providing health care
as it does today. No distinction is not who
member of such a society, whether they are only territorial self
Units or other natural or legal persons. Such measures
law is therefore in apparent contradiction with the principle of proportionality, which requires
maintain the ratio between the measured objectives and the chosen means. In this case
by the petitioner is not doubt that the means employed
were obviously inadequate to the aim pursued, because health care was provided by
without the adoption of the contested provision, which effectively
lead to the expropriation of private property .
7th The petitioner considers it self-evident that the scope of counties
include among others health of the inhabitants. If
§ 34 paragraph. 2, second sentence of Act no. 245/2006 Coll. requires the county to its
territory was placed in each district at least one public
medical equipment and provisions of § 34 para. 6 of the cited Act imposes region
supplement the network of public health facilities, failing community
nor other founder, it is apparent that complement the network of public health facilities
will depend solely on the decision
Ministry, which establishes requirements for the functioning of the network of medical facilities
(§ 33 of Act no. 245/2006 Coll.).
8th The petitioner does not question the right of the state to create a network of medical facilities
, yet not interfere in the independent sphere
municipal governments and must not infringe on the possibility of exercising
according to their choice and the right of ownership autonomously.
9th The petition to annul the contested provisions of Act no. 245/2006 Coll.
Petitioner joined an application for priority review under the provisions of §
39 of the Law on the Constitutional Court, arguing that the law no. 245/2006 Coll. Although
came into force on its publication, however, the legal effects consisting in
that the medical equipment listed in Annex
Act into public medical facilities, occur until the expiration of 180 days from the date of effectiveness
Act (§ 40 par. 1). Annul the contested provisions
after the expiration of the 180 day period would be deprived of any meaning, since it would have already occurred
irreversible effects foreseen by law.
Formal prerequisites for consideration of the constitutionality of a legislative procedure
10th The Constitutional Court is in accordance with § 68 para. 2 of the
Constitutional Court in proceedings to annul laws or other laws
required to assess whether the Act no. 245/2006 Coll., Whose individual provisions
they are attacked, they were adopted and issued within the bounds of constitutionally provided jurisdiction
constitutionally prescribed manner and fulfill the formal requirements
factual assessment of the proposal.
11th According to § 64 para. 1 point. b) the Constitutional Court Act
proposal to repeal a law or its individual provisions under Art. 87
paragraph. 1 point. a) of the Constitution is entitled to bring a group of at least 17 senators.
As the Constitutional Court determined from the attached proxies of
21 June 2006 and 20 July 2006 a proposal filed by a group total of 28 senators.
12th From the electronic library of the Chamber of Deputies of the Parliament of the Czech Republic
Constitutional Court found that the bill was submitted to the Chamber of Deputies
group of deputies on November 2, 2004. Members of the proposal was circulated
as print 810/0 on 4 November 2004 government sent to
opinion on 5 November 2004. the bill was adopted on
53rd meeting of the Chamber of Deputies on February 8, 2006 Resolution no. 2186,
when the 169 deputies present voted for the Bill 98 with a quorum
13th From the electronic library of the Czech Senate
Constitutional Court found that the Senate bill was referred to the Chamber of Deputies
14 February 2006. The Senate bill debated in plenary on
15th March 2006 at its 10th meeting of the 5th term of office and adopted
bill Resolution no. 364, which rejected the bill.
Voted for the resolution of the 57 senators present 68. Deputies on the proposal
Act returned by the Senate again voted on 21 April 2006 at his
55th meeting, he maintained the original bill, when the present
171 deputies voted for the Bill 107 with a quorum 101.
14th On 21 April 2006 the Act was delivered to the president for signature
. The president did not sign the law, and on 5 May 2006 it returned
15th Deputies of the law returned by the President of the Republic
voted on 23 May 2006 at the 56th meeting and the president veto
hereto outvoted at its 56th meeting on 23 May 2006
(Resolution no. 2469). The law was promulgated on 31 May 2006 in the Collection of Laws in part
79 under No. 245/2006 Coll.
16th The Constitutional Court stated that Act no. 245/2006 Coll.
was adopted by the Parliament of the Czech Republic in a constitutional legislative procedure
was signed by the appropriate constitutional authorities and was duly promulgated in the Collection of Laws
while came into force on 31 May 2006.
Recap government opinions, statements by the President and MPs debate
17th Constitutional Court as the basis for its decision capped
transcripts, resolutions and assembly prints, freely available on the web site
Chamber of Deputies and the Senate of the Parliament of the Czech Republic
www.psp.cz. and www.senat.cz and the opinion of President Vaclav Klaus to the returned
Act no. 245/2006 Coll. on page www.hrad.cz.
18th In the opinion of the Government no. 1197 dated December 1, 2004 to the bill
no. 245/2006 Coll. It stated that the government bill
discussed and examined at its meeting on 1 December 2004. Although identified with
bases and intent of this bill, pointed out that the proposal was an
sophistication, non-complex having numerous factual and
legislative shortcomings, particularly in the following respects:
- Insufficient regulation of the general
non-profit institutional health facilities, which could lead to further escalation
system inefficiencies and ineffective utilization of public funds
- Not clearly defined network of medical facilities
- Is not respected regional powers in matters of health care on its territory
- Internally contradictory and unclear legislation on the creation and termination
public non-profit institutional health facilities
- The government did not agree with the findings in the explanatory memorandum
submitted bill that the draft law should regard
state budget and budgets of municipalities and regions broadly neutral impact.
19th Czech President Vaclav Klaus justify his decision to return
Chamber of Deputies of the Czech Parliament on 5 May 2005
draft law no. 245/2006 Coll. He said that the Czech health
needs a fundamental systemic change when the law does not
this change. The law in its logic means departing from the principles on which
our entire society - and their health -
evolved since November 1989, it is respect for private property, the pluralism of ownership
relations, to free choice doctor and medical facility.
Law in the form of its healthcare destabilized unnecessarily divides
doctors and other health professionals, sharpens the political atmosphere in the country and
disturbing patients and the entire Czech public. Furthermore, it creates a false
impression that the so-called no-profit hospitals solve the financial crisis
health. The law favors public-profit health care facilities and institutional
basically creates pressure to make other types of medical equipment
switched to this form. This rule is violated
enshrined in Art. 11 Sec. 1 of the Charter, which provides that the ownership right
of all owners has the same statutory content and protection. That law
However, creating a favorable environment for the existence and operation of hospitals
only the public type instead to provide a suitable environment
for all forms of ownership.
20th From the stenographic records, resolutions and parliamentary publications, the Constitutional Court found that
during the legislative process in the Chamber of Deputies
Czech Republic in the proposed Act no. 245/2006 Coll.
incorporated numerous proposed amendments and the debate has expressed considerable number of deputies in
often emotive performances.
21st The Organizing Committee has designated as Rapporteur deputy Josef Janecek, who
warned from the beginning that it is inappropriate to make such a fundamental document has been prepared
MP initiative and cited the example of
law on kampeličkách. He agreed also with the Government's reservations on the draft law and
repeatedly pointed out, in relation to the expert observations
public on issues that invokes the law.
Illustrated the inadequacy of the law on amendment to the Act, he stated that example.
District Jesenik and Šumperk are no medical facilities in the network themselves known, and therefore
will have to be a medical facility built. Next problem
Seen in the fact that the notes are listed hospitals that do not exist
because their names in the Annex does not correspond to their actual
designation or identification number (eg. Hospital
Kroměříž contributory organization, in fact Kroměřížská hospital joint stock company,
which also has other identification number, the list Ranked Hospital
Plan is in bankruptcy, etc.). Simply put, the bill saw
endangering the availability and quality of existing medical care.
22nd In contrast, Health Minister David Rath said
as the main reason why the law was initiated and is being presented
Prevention blanket privatization of hospitals, as well as the introduction of clear, purposeful and sustained
management of public funds and the introduction of systematic, regular
quality control and targeted at individual hospitals.
Recap substantial parts of the parties' observations
23rd The Constitutional Court, under § 42 para. 4 and § 69 of the Law on the Constitutional Court
sent the petition to annul the contested provisions of Act no. 245/2006 Coll
. Deputies and the Senate of the Parliament of the Czech Republic.
24th Chamber of Deputies of the Parliament of the Czech Republic in its statement of
18 August 2006 stated that medical devices whose
founded by the state, in fact, cover only part of the necessary
mostly specialized medical care and are not able to satisfy
all legitimate requirements to ensure the care with regard to constitutional
and international legal obligations referred to in Article. 31 of the Charter, Art. 12
International Covenant on economic, social and cultural rights, Article
. 24 of the Convention on the Rights of the Child, Art. 11 and Art. 13 of the European Social Charter
. By passing the Act no. 245/2006 Coll.
watched ensure the health of the population using the Article. 11 paragraph. 2 first sentence of the Charter, when
for this purpose defined the property and leans way with him, so that in the annex to the Act
specific enumeration designated legal persons -
owners or users of property - subject to regulation under this Act.
Therefore did not do anything other than that specified
property necessary for health protection and provided that such individualized
assets may be under specified conditions only owned
certain legal entities, ie. Public non-profit institutional
medical devices, if not remain the property of their founder (§ 13 para. 2
Act no. 245/2006 Coll.). Neither this statutory limitation is not absolute
because the Act no. 245/2006 Coll. It breaks allowing himself
performing legal acts, which is alienated ownership of property
public health facility or its founder (§ 6. 9 and 10
Act no. 245/2006 Coll.). The legislature is, in their view, considering
to the constitutional responsibility of the state and local governments to ensure
right to health protection, is entitled to elect to hedge these
rights instruments and the control and regulation of medical devices healthcare
care providers. Local government units are public
corporations which may own property and manage their own budget
. So if stipulated by law no. 245/2006 Coll. a way of
economic and legal form in which it is possible to dispose of the property
territorial governments that serve the public interest for securing
health care as a public service, determines that only in accordance with the constitutional status
counties and municipalities as public corporations
their tasks in a manner permitted by the constitutional and legal norms.
In this case, the legislature provided that this obligation should be ensured
health insurance through health facilities, the health insurance
which concluded a contract for the provision and reimbursement of health care
providing these medical facilities form a network contract
medical equipment health insurance. To fully guarantee
territorial accessibility and quality of health care provided in addition
legislator Act no. 245/2006 Coll. ensure that
health insurance companies were obliged to conclude a contract for the provision and payment of health care
public health facilities (public and private
nature) included in the network of public medical facilities, in
extent what is a public health facility compulsory health
Provide such care. In conclusion of its statement, the Chamber of Deputies stated that
legislative assembly acted in the belief that the law is in line with
Constitution and our legal order. It is up to the Constitutional Court to evaluate
constitutionality of the contested provision of the Act no. 245/2006 Coll.
25th Czech Senate in a statement dated 9 August 2006
described the procedure for the assessment of Act no. 245/2006 Coll. Senate. The Senate debated a draft
Act of 15 March 2006 and the proposal adopted Resolution no. 364
which rejected the bill. When discussing the bill in the Senate
, both in the committee, which was referred the Bill and to
plenary, a robust debate, which mainly dealt with the issue
making that part of the network of public health facilities,
law which creates the medical devices listed in Annex
to the Act and the proposed amendments stipulating responsibility for counties that
network of public health facilities in the region will meet the relevant requirements of the Act
. The debate was led mainly by those provisions which
are proposed to cancel. Since state law no. 157/2000 Coll. and no.
290/2002 Coll. transferring some of its medical equipment in ownership
local government units (though as a body within the meaning of the Charter
guaranteeing health care coverage network of medical facilities could create
already in 2000 alone), is now in line with constitutional principles | || property protection permissible to create a network of medical facilities at the expense
property rights of these entities. It was also criticized that when
creating a list of medical devices (Annex to the Act), which have
actually form the backbone networks of public non-profit institutional
health facilities, has not been sufficiently taken into account for consultations and
views of various parties concerned whether councils of municipalities or regions,
expert professional healthcare organizations or bodies
representing patients, and especially not by clear
criteria, the fulfillment of which would warrant specific inclusion or non-inclusion
competent medical authority to the list . Therefore
it evaluated this list as unfairly created and
unsystematic. This underlines the fact that the list was also quite accidentally,
on the basis of the amendments proposed to the second reading in the Chamber of Deputies
, supplemented by 9 medical facilities;
was also noted that in some cases, the list contains the same entity
twice, for example. Litomyšl Hospital. But mainly it was pointed out that
existence of the list of selected health facilities unjustifiably
creates unequal conditions and status of health facilities in the area
healthcare provision and seems existentially liquidation
for those medical devices that are not included
network of non-profit institutional health facilities. This violated the principle of equality
which the Constitutional Court interpreted in a number of its judgments (see Judgment.
Nos. Pl. US 22/1992 dated October 8, 1992, in Collection of Decisions of the Constitutional Court finds
ČSFR under no. 11). Conclusion of its statement, the Senate said that
majority found a violation of the above constitutional principles and
therefore rejected the bill.
26th Constitutional Court was informed on 18 August 2006 received expressions
Ministry of Health, which said that the final wording of the law was adopted
with his consent. The Ministry of Health is raised objections
petitioner disagrees with, because in his opinion puts
obligation to provide care for the health of the population only on the shoulders of the state and does not want
not recognize this task also as an obligation of local governments
- public corporations. Perception of the petitioner to Article. 31 of the Charter
considers the health ministry as simplistic as this
article about the state and no mention has not only vertical but also horizontal effects
against operators of private law, in particular against providers
health care. If stipulated, the Act no. 245/2006 Coll.
Certain way of economic and legal forms in which it is possible to handle
assets of local government units, which are used in the public interest to
provision of health care as a public service, determines that only in accordance with the constitutional
the status of regions and municipalities as public
Corporations their tasks in a manner permitted by the constitutional and legal norms
. Interventions in ownership resulting from the provisions of Act No.
. 245/2006 Coll., Which authoritatively (ex lege) by a certain date
translate into public non-profit institutional health facilities
contributory organizations of state, counties and municipalities, as well as joint-stock companies
a limited liability company (§ 40 and annex)
considers the Ministry of health for reasonable considering the purpose for which the subject property
27th Observations of the parties and the Ministry of Health was sent to the petitioner
consciousness. The petitioner, in its reply dated 1 September 2006
Assembly of Deputies of the Czech Parliament
said that the Chamber of Deputies ignores that it is necessary to examine in
if the State makes some action in the public interest while
such action interferes with the constitutionally guaranteed rights of others,
whether the measures chosen are legitimate and proportional terms
means used and objectives pursued. A statement from the Senate of the Parliament of the Czech Republic
petitioner stated that he fully agrees with the reasons which led
Senate to reject the bill and stressed that minority
Support for the proposal was based precisely on the state's obligation to ensure the protection
public health, without, however, into account the need to consider the proportionality
measures taken in relation to the necessary limitation
constitutionally guaranteed rights that would be the implementation of the Act has occurred. In its reply to the opinion
Ministry of Health, the petitioner stated that the forced creation
net profit medical facilities accompanied by interventions
constitutionally guaranteed rights was not necessary, the creation of a network of private healthcare facilities
(cf. Annex to the Act) then it lacks any sort of rationality
terms of selecting individual health facilities. The petitioner
that the adoption of measures with such serious implications for the rights
territorial governments and others are not inconsistent with chaotic
selection of medical equipment, which occurred, and ultimately
removes the legitimacy of such a solution based on its rationality.
The contested provisions
28th The text of the contested provisions of the Act no. 245/2006 Coll. reads as follows:
- The provisions of § 34 para. 2, second sentence:
"Region ensures that the region was placed in each district
least 1 public medical facilities."
- The provisions of § 34 para. 3 point. a):
§ 34 paragraph. 3: A network of public health facilities constitute "a)
public health facilities created in accordance with § 40 para. 1"
- The provisions of § 34 para. 6:
"If the network does not meet public health facilities in the region
requirements under paragraph 2 shall complement the network of public health facilities
discuss the region with the municipalities on whose territory the terms of requirements for network
public health facilities by paragraph 2 should be
health care public health facilities within the specified range
provided, and if the municipality public health facility shall not establish a
fails to do so or other founder, will make it region ".
- § 40:
"(1) Legal persons listed in the Annex to this Act shall become
expiry of 180 days from the effective date of this Act
public health institutions. Should a cancellation or conversion
legal persons referred in the Annex to this Act
before the expiry of the previous sentence, such an act is invalid.
(2) a person who set up or established a legal entity referred to in
Schedule to this Act, has the status of founder under this Act.
(3) on formation of public medical facilities pursuant to paragraph 1
transferred to a public health facility all rights and obligations, including
rights and obligations from labor relations, the legal person || | specified in the Schedule to this Act, from which this public health
device was developed.
(4) property with which they are competent to manage budgetary organizations
listed in the Schedule to this Act, to the extent that its founder
put in budgetary organizations at its establishment, considered by
this Act for assets invested in public
founder of medical equipment, and the date of the creation of this public
(5) The right of ownership to the property Joint Stock Company listed in the Annex to this Act
that its founder, entered into a joint stock company in
its establishment, free of charge, passes the day when the public
medical facility of the founder.
(6) companion, who founded a limited liability company,
listed in the Annex to this Act, is entitled to the settlement amount on the day of creation
public medical facilities pursuant to paragraph 1
settlement amount paid by the state. Payment of the settlement amount will Ministry of Finance on a draft
founder, supported by a detailed calculation and accounts
performed on the day immediately preceding the formation of public
medical device, certified by an auditor. Petition can be filed within 3
months from the date of public medical facilities, otherwise the right to share
settlement expires. Settlement amount is payable within three months from the date of receipt
proposal for its payment to the Ministry of Finance.
(7) Medical establishment referred to in § 34 para. 4 sentence last
may be replaced by public health authorities and the founder decides
about its cancellation, if it is a company about its cancellation without || | liquidation, so that the property and all rights and obligations of the affected
medical devices, including the rights and obligations from labor relations
went public health facility on the day of its inception,
immediately following the date on which it was
medical device cleared.
(8) The founder of public medical facilities referred to in paragraph 1
shall, within at least 30 days before the starting date of the public
medical equipment to the Ministry of Health
all the necessary information entered in the register of public health
equipment and submit all the necessary documents, which form part
register of public health facilities.
- Annex to Act no. 245/2006 Coll .:
In Annex to Act no. 245/2006 Coll. They are calculated legal persons
which become the expiry of 180 days from the effective date of this Act
public health institutions (§ 40 para. 1).
During the hearing
29th At the hearing on 27 September 2006 legal representative referred
appellant's written proposal and all other submissions in the matter.
In principle, the petitioner is not against the law no. 245/2006 Coll.
as such, he has proposed to abolish only those provisions that are clearly unconstitutional
. The legislature came out of the situation that was in 2000, when the state was
owned health facilities and could have
of medical equipment in his possession a network of medical facilities
create. If it did so in 2005, was contested provisions
Act no. 245/2006 Coll. interference with the right to self-government to intervene in
property rights. Such intervention must preserve the essence of law.
Contested provisions State has exceeded the legal limits and violated the principle of proportionality
. The legal representative of the petitioner suggested
annulment of the contested provisions of Act no. 245/2006 Coll.
30th Chairman of the Chamber of Deputies of the Parliament of the Czech Republic Ing.
Miloslav Vlcek said that the Chamber of Deputies on the draft
expressed in its written opinion. His opinion also sent
Ministry of Health. Expression of the Ministry of Health is consistent with
expression of Deputies and the Chamber of Deputies to eat the whole range
identifies and referred to the opinions stated therein. He further stressed
disagreement with the petitioner's claim that the state could net profit
non-state institutional medical facilities create only
of medical equipment, which he kept in his possession.
Intention of the legislature was to ensure that the obligations through non-profit non-governmental
institutional medical facilities to provide care to the citizens
countries - members of the European Union and other foreign nationals, as well
citizens who are not enrolled in a health insurance system Czech
Republic. He recalled that the provision of health care is financed from
public health insurance and public budgets.
Group of senators in their application for annulment of the contested provisions of Act no. 245/2006 Coll.
Takes issue with other provisions of this Act, but does not propose to abolish
. Finally, Speaker of the Parliament expressed the hope that
Constitutional Court apart from its earlier policy interests and its
decision to take on the responsibility for providing health care
citizens. He therefore proposed rejection of the proposal.
31st The petitioner seeks the annulment of the contested provisions of Law no.
245/2006 Coll., Which fundamentally related to the system of health care
citizens of the Czech Republic.
32nd Constitutional petitioner's objections against the contested provisions
are presented from two positions, both in terms of protection of property and
both in terms of intervention in the government. The petitioner
unconstitutionality of the contested provisions of Act no. 245/2006 Coll. He sees that the
touches the separate powers of local governments and that
does not respect the ownership rights of local governments and possibly
other natural and legal persons and criticizes them in conflict with Art. 11 of the Charter and Article
. 8 and 101 of the Constitution:
Art. 11 of the Charter reads:
(1) Everyone has the right to own property. The ownership right of all owners
has the same statutory content and protection. Inheritance is guaranteed.
(2) The Act provides that property necessary for securing the needs of the entire
society, development of the national economy and public interest
may be owned only by the state, a municipality or designated legal persons;
law may also provide that certain things can only be owned
citizens or legal persons registered in the Czech and Slovak Federative Republic
(3) Ownership entails obligations. It must not be misused to the detriment
rights of others or in conflict with legally protected public interests. His performance
not harm human health, nature and the environment beyond the limits set by law
(4) Expropriation or enforced restriction of ownership rights is possible
in the public interest, on the basis of law and for compensation.
(5) Taxes and fees can be levied only on the basis of law.
Art. 8 of the Constitution reads:
Guarantees the autonomy of local governments.
Art. 101 of the Constitution reads:
(1) A municipality is independently administered by the council.
(2) Higher self-governing unit is independently administered
(3) Local governments are public corporations that
may own property and manages its own budget.
(4) The State may intervene in the affairs of local governments, only
required to protect the law, and only in the manner prescribed by law.
33rd Assessment of that argument by the Constitutional Court assumes
reconstruction purpose and wording of those provisions of ordinary / sub-constitutional /
law that apply to the issue of conditions for the provision of health care
34th Cited articles is based constitutional basis of territorial
government, which builds on and further (in constitutional bounds) develops
general legislation represented mainly by Act no. 128/2000 Coll., On
municipalities, as amended amended (hereinafter the "Act no. 128/2000 Coll
."), Act no. 129/2000 Coll., on regions, as amended
(hereinafter the "Act no. 129/2000 Coll. ") and Act no. 131/2000 Coll., on the
Prague, as amended (hereinafter the" Act no. 131/2000 Coll
35th The municipality under § 7 para. 1 of the Act 128/2000 Coll.
administers its affairs independently (hereinafter "independent competence"). State bodies and
regions may intervene in independent competence only if required by
protection of the law, and only in the manner prescribed by law.
Scope of independent competence may be limited by law. § 35 para. 2 of Act No.
. 128/2000 Coll. stores village in the autonomous powers in its territorial
circuit further care in accordance with local conditions and local
habits for creation of conditions for development of social care and
needs of its citizens. It is all about meeting the needs
housing, protection and development of health, transport and communications, information needs,
education, cultural development and protection of public order
36th A similar modification can also be found in the Act no. 129/2000 Coll., Which
provisions of § 2 para. 1, requires the county to manage their affairs
independently (hereinafter "independent competence"). State authorities may
independent powers to intervene only if required to protect the law and only
manner specified by law. Extent of independent competencies
may also be restricted by law. Region cares for all-round development of its territory and
Needs of its citizens (§ 1 para. 4). In accordance with the corresponding
§ 35 par. 2 of Act no. 128/2000 Coll. It could be under the citizens' needs
county subordinated issues and health protection and development and providing
health care, even though by law no. 129/2000 Coll. (Unlike
Act no. 128/2000 Coll.) Does not explicitly mention. The independent competence of the region
according to § 14 par. 1 of Act no. 129/2000 Coll. They include matters that
are in the interest of the region and the citizens of the region, if not the delegated powers
region. The independent competence of the region include the matters listed in
§ 11, § 35, § 36 and § 59 of Act no. 129/2000 Coll., With the exception
issuing regional regulations, further matters in a separate || | scope entrusted by law (§ 14 para. 2). Region can to pursue self
establish the scope and establish legal persons and organizational units
region, unless the law provides otherwise (§ 14 para. 3).
37th Health is one of the most important factors affecting the quality of human life and
among the absolute fundamental rights and values.
Constitutional Court based on the constitutional concept of health, which is enshrined in Article
. 6 Sec. 1 of the Charter, according to which "Everyone has the right to
life. Human life is worthy of protection even before birth." and Art. 31
Charter, which states: "Everyone has the right to health protection.
Citizens are entitled under public insurance to free medical care and
medical aids under conditions provided for by law."
38th Other key constitutional law issues are:
- Art. 2 European Convention on Human Rights (
published in the Collection of Laws under no. 209/1992 Coll.), Which provides that the right of every
to life shall be protected by law.
- Art. 12 of the International Covenant on Economic, Social and Cultural Rights
(published in the Collection of Laws under no. 12/1976 Coll.), Who
paragraph. 1 provides that States Parties to the present Covenant recognize the right of everyone
of the highest attainable standard of physical and mental health. In
paragraph. 2 point. d) of this Article, the Parties are committed to
will take measures to achieve the full realization of this right and the
these measures include the creation of conditions which would assure to all
medical assistance and care in case of illness.
- Art. 24 of the Convention on the Rights of the Child (published in the Collection of Laws under no.
104/1991 Coll.), In which States Parties recognize the right of the child to
highest attainable standard of health and to facilities | || treatment and rehabilitation facilities.
- Art. 11 and Art. 13 of the European Social Charter (promulgated under no. 14/2000
Collection of International Treaties), then oblige the parties to
either alone or in collaboration with public and private organizations ,
adopt measures for the effective exercise of the right to health protection and to provide each person
reasonable assistance in case of sickness, the care necessitated by his condition
- Art. 2 and Art. 3 of the Convention on the protection of human rights and dignity of human beings
regard to the Application of Biology and Medicine
amended by the Additional Protocol of 12 January 1998 (promulgated under no. 96 /
2001 and no. 97/2001 Collection of international Treaties) provides superior human beings
above the interests of society or science and obliges parties to
within their jurisdiction, take appropriate measures to ensure equal access to health
care of appropriate quality.
39th According to the conclusions of the Council of the European Union (2006 / C 146/01)
published in the Official Journal of the European Union on 22 June 2006, the health systems
integral part of Europe's social infrastructure. At a time when
Europe's aging population, rising expectations and medicine goes forward
not underestimate the challenges that lie ahead and that
reconciling individual needs with the available finances.
When discussing future strategies should be a common concern to protect
values and principles that underpin the health systems of the European Union.
The EU Council also noted that the European Commission has stated that
develop a Community framework for safe, high quality and efficient
health care, and strengthening cooperation between Member States and
providing clarity and certainty in the application of Community law
health services and medical care. According to the Statement
common values and principles that are a statement of twenty-five
Health Ministers of the European Union about the common values and principles
underpin Europe's health systems, and which is annexed to the conclusions outlined
Council of the European Union, are core values as indicated
universality, access to quality care, equity and solidarity,
by various European Union institutions in their work is widely recognized.
Universality means that no-one is barred access to health care;
Equity relates to equal access according to need, regardless
ethnicity, gender, age, social status or ability to pay
; solidarity is closely linked to the financial arrangement
national systems and the need to ensure access for all.
All health systems in the European Union is trying to focus primarily on
patient and responsive to individual needs. However, different Member States
have different approaches to applying these values in practice.
Health Ministers took note of the growing interest in the question of the role
market mechanisms (including competitive pressure) in the management of health systems
, yet stated that it is up to the Member States
to determine their own approach with specific interventions tailored
40th Regarding the very concept of health, law and administration
in the healthcare sector, says Doc. JUDr. Petr Prucha. PhD. the publication
Public Administration and Local Government (published by the University of Applied Law,
sro, Prague, 2004) that "-zdravotnictví per person
is a concept involving a system of health services, respectively. health care, together
system of health care facilities and other health care organizations
organized into a system of medical facilities that provide care
. Performance of public administration in the health sector focuses on
implementation of measures aimed at health care, including protection
support and called. public health. the content and legislation
performance of public administration while in the past decade underwent a series of changes that correspond
previous changes not only in the public sector as such, but
even in their own health care . the system allows
while guaranteeing the provision of health care to create the conditions for the real
fulfill the constitutionally guaranteed right to life and the right to health protection
. In the organization of administration in the healthcare sector is reflected, first
that public health administration is differentiated vertically
respectively. by levels, and even that involved in it as the state
administration and local government entities. Central government authority to
healthcare sector is the Ministry of Health. Its scope includes
central state administration for health care, protection
public health, medical research activities, medical devices
in direct managing scope, search, protection and exploitation
natural medicinal resources, natural treatment
spas and sources of natural mineral water, medicines and medical equipment
for prevention, diagnosis and treatment of people
health insurance and medical information system. In doing so, the Ministry
coordination with other central bodies of state administration, while
special status and tasks in this field belongs to the Ministry of Defense and Ministry of Interior
. At the local level, public administration, to carry
regions and municipalities. In these cases, existing rules
differentiate between the performance of state and local governments. Government
perform certain issues of regional offices and municipal offices with extended powers
, government then exercised to the extent relevant
at their respective levels, regions and municipalities. In addition to the territorial level belongs
perform state administration in matters of public health protection
regional hygienic stations. The administration of health care organizations also participate
so. professional autonomy, which are the Czech Medical Chamber, Czech
Dental Chamber and the Czech Pharmaceutical Chamber. A special form of health care
is called. Protection of public health. Public health means
health status of the population and its groups. The protection and promotion of public health
then a summary of activities and actions to create and protect healthy
living and working conditions and preventing the spread of infectious and
Epidemic diseases, diseases related to work and
other significant health disorders and supervision over their monitoring. "
41st Statutory regulation of health and provision of health and care, which builds
on constitutional modification is mainly concentrated in the Act no.
20/1966 Coll., on Public health care, as amended (hereinafter
"Act no. 20/1966 Coll."), which Art. III, § 11 para. 1 stipulates that
provide health care establishment of the state, municipalities, individuals and legal entities
consistent with current medical knowledge available
science. From the provisions of § 33 and § 39 . 1 of this Act that
medical facilities set up outside the Ministry of health also
Region in separate powers, municipalities, individuals and legal entities.
authorization to operate private medical facility by a decision on registration
regional Authority in the place of operation
nongovernmental facilities within the meaning of § 8 of Act no. 160/1992 Coll., on
health care in private health facilities, as
amended. Law no. 48/1997. then imposes health insurance
obligation to provide healthcare to their
policyholders. This obligation is met through
healthcare facilities with which they concluded a contract for the provision and payment of health care
. These medical facilities form a network of contractual healthcare facilities
health insurance. The system of public health authorities
and the rights and obligations of natural and legal persons in the protection and promotion of public health
regulated by law 4. 258/2000 Coll., On protection
public health and amending certain related acts,
wording amended (hereinafter the "Act no. 258/2000 Coll."). The provisions of §
2 par. 2 of the Act is defined as a public health
health status of the population and its groups, government authorities
protection of public health and their tasks are defined in § 78 and
seq. this Act.
42nd In terms of historical development govern in the centrally-controlled
healthcare on the basis of § 33 and § 42 of Law no. 20/1966
system of medical facilities Decree no. 43/1966 Coll., On the System
medical facilities. This decree was repealed by Decree no.
121/1974 Coll., On the system of medical facilities. I would Decree was subsequently canceled
Decree no. 242/1991 Coll., On the System
medical facilities established by district authorities and municipalities that apply yet.
Same time the Ministry of Health issued Decree no. 394/1991 Coll., On
status, organization and activities of teaching hospitals and other
hospitals, selected specialized therapeutic institutes and regional public health stations
managing authority of the Ministry of Health Czech Republic
which is still in force. After 1989, in connection with the change
socio-economic conditions were adjusted health insurance
Act no. 550/1991 Coll., On general health insurance, then
Law no. 48/1997. and Act no. 258/2000 Coll. As stated above
, become part of the reform of the public administration law no. 157/2000 Coll. and no.
290/2002 Coll. transferring some of its medical devices that have been
state subsidized organizations, to the Regions and municipalities, as their
governmental organization. As follows from the general part of the explanatory memorandum to the draft
Act no. 290/2002 Coll. (Www.psp.cz in print 1151/0)
was a transfer of ownership of state property and transformation
existing state organizations and government departments involved
among others in the health field. They are projected to continue
especially local government units to meet the needs and ensure
citizens in the areas covered by the transfer of property concerned. County had simultaneously
assess the need for the provision of services, both in number and in terms
territorial effect. Given that the adoption of the draft law could not be ruled
changes in their numbers (especially due to possible organizational changes
consisting eg. In a merger, division or
repealing certain organizational units or repeal certain || | contributory organizations), was given a list of them by law.
43rd Of the above-designated provisions of § 33 and 39 of Law no. 20/1966 Coll.
Shows that regions and municipalities set up and manage healthcare facilities in
Independent powers. Health care provision therefore falls within the scope
separate territorial units, in which the state
under Art. 101 para. 4 of the Constitution to intervene only when required to protect
law and only in a manner provided by law.
44th Act no. 245/2006 Coll. introduced into Czech law
a new type of legal entity and substantially changes the conditions provided
health care in the Czech Republic. His ostensible aim is to create
effective legal environment for the existence and operation of hospitals in
public ownership and for creating a basic network of these hospitals,
by which the State would be able to provide daily
right to protection of health and every citizen if necessary
equal access to free health care on the basis of public insurance, as it assumes
Charter Article. 31st
45th Public health facilities defines the provisions of § 1 of Act no. 245/2006 Coll
. and its founder may be a state, county or municipality and other
legal or natural person, or it may establish more founders (§
2. 1, 2 and 3). Formation of public medical facilities
preceded its establishment (§ 3 para. 1) and the Act regulates in detail this procedure.
In addition, by law, a public healthcare facility becomes
in the annex to the Act exhaustively defined group of legal entities
(medical equipment) expiration of 180 days from the date of entry into force of this Act
(§ 40 para. 1) .
Starting date for a public health care facility under the cited provisions of § 40 para. 1
transferred to a public health facility all rights and obligations, including
rights and obligations from the labor relations
legal persons listed in the Annex to the Act from which this public health facility
created (§ 40 para. 3).
46th § 34 Act no. 245/2006 Coll.
establishes a network of public health facilities. This must be arranged so that at each
catchment areas effectively followed up and ensure the availability of care provided
, with the obligation that the region was in each district
located at least one public health facility, required by law | || region (§ 34 para. 2 second sentence). According to the law form a network of public health facilities
secondly, public health facilities resulting
according to § 34 paragraph. 3 point. a) and § 40 para. 1 (ie.
medical equipment exhaustively listed in the Annex to the Act), and the
public health facilities, which will be established under this Act and
inclusion in the network of public health facilities decided
Ministry of health [§ 34 par. 3 point. b) and paragraph. 4].
The provisions of § 34 para. 6 then saves the county
obligation to establish a public health facility in case the network does not meet the requirements
provisions of § 34 para. 2 (continuity and availability), and otherwise the other || | founder.
47th The obligation to provide health care regulated by the provisions of § 33 para. 1
Act no. 245/2006 Coll., Under which the Ministry of Health, after
prior consultation with the county, health insurance companies and relevant
Comoros down decision each contracting
medical devices, ranked network of medical facilities, the extent
obligation to provide health care and catchment areas for each species
health care. The proceedings under § 33 para. 1 shall not apply
Administrative Code (§ 33 para. 4).
48th As the foregoing indicates, the Act no. 245/2006 Coll.
represents a major breakthrough in the scope of local governments imposed on them
Law no. 20/1966. in § 33 and § 39 that
independently of the will of these units changes the legal form of medical facilities and, if
operation of these facilities (whose founders are regions and municipalities)
subjected to the control and supervisory powers Ministry of health,
which is a component of executive power. This new legislation made law
no. 245/2006 Coll. minimizes space for the performance of local government in
health, as foreseen by the law no. 20/1966 Coll., no.
128/2000 Coll., no. 129/2000 Coll. and no. 131/2000 Coll., when
decisive role in this area leaves the Ministry of Health.
49th The Constitutional Court has repeatedly stated that it considers local government as
irreplaceable component of the development of democracy. separate issues
Scope of local government units and the protection of property rights
local governments engaged in a number of its decisions.
As with the issue repeatedly confronted, it remains
previous decision to retrace at least in general.
50th In its judgment of 9 July 2003, sp. Nos. Pl. US 5/03 [
Collection of Decisions of the Constitutional Court (hereinafter "Collection")
Volume 30, judgment no. 109; promulgated under no. 211/2003 Coll.]
in connection with the proposal of deputies of the Parliament of the Czech Republic
to annul § 1 par. 2 point. b) § 2 para. 2 second sentence, §
3, § 4 para. 2 point. b) § 5 para. 2, second sentence and § 6 of Act no. 290/2002 Coll
. The Constitutional Court stated that "the local government is an expression rights
ability of local authorities within the limits set by law, within its
responsibility and in the interest of the local population to regulate and manage public affairs
part. According to the starting thesis, on which the concept of self
built, is the foundation of a free state free municipality, furthermore
from the perspective of regional significance on a higher level hierarchy
territorial self-governing community of citizens, which according to the Constitution of the county.
it also stated that the territorial local authorities, representing local communities
citizens must have - through autonomous decisions
their representative bodies - to freely decide how
way loaded with funds, which are to meet the challenges
government furnished. It management of their property separately on
own account and own responsibility is an attribute of government.
Group deputies while its proposal justified by the fact that the contested provisions
unilaterally, without the affected regions and municipalities express their agreement relevantly
or disagreeing with the will determine that local authorities
passes from the state selected items, rights and obligations previously belonging to the state
and also determines that the identified government departments and state-funded organizations
become an organizational unit or
contributory organizations of the respective governments. The petitioners
particularly criticized the law, it does not address such fundamental issues as
question of payment of obligations incurred by the state to 31 December 2002, which passed the day
1 January 2003 at the county or municipality. By law, according argument
group of deputies, impermissibly burdens the financial position
territorial self-governing units. "The Constitutional Court also noted," -that you can not question the merits
step, when the state of public administration reform has transferred
to local governments certain assets as it is due reasons
based on historically confirmed the conviction on the basis of which
especially the ones which the issues associated with it and which relate
such assets in their positions immediately They serve, and are able
nature of things and are willing and motivated to manage it with care
proper manager, and often better than a centrally organized state
much, much more effective, full-fledged manner.
Decentralization of tasks and the related transfer of assets is not something
constitutionally unacceptable. Connection of step with the subsequent transfer or other
duration of liabilities associated with these assets, however, assumes additional
solutions, in connection with the system of taxes, subsidies and similar benefits.
State should not have had - without further - rid itself of liability for debts incurred
during his management of the transferred property and which are the result of a previous loss
realization of property rights, or even non-compliance
. Still less would not do in relation to
entities whose means should be pursued and its
task of ensuring fundamental rights arising from Art. 31
Charter, the guarantor of the observance of himself. Such behavior sovereign
already evokes reflections on the abuse of state power at the expense of territorial self
units. The actual intervention by the Constitutional Court of the abolishment of the contested provision would
But this undesirable situation eliminate, as the Constitutional Court
had to take into consideration that the contested law is the law transformational
one-off nature and the legal consequences under consideration statutory || | provisions of this Act and the associated anticipated occurred ex lege already
1 January 2003, and the character of those standards in the future cause legal
Consequences is fully exhausted. Satisfactory Constitutional Court, having
ex nunc, would thus no longer had the ability to ensuing state
nothing changed. For this reason, as the Constitutional Court had no choice but
petitioners' proposal to reject this part. "On the other hand, the Constitutional Court
cited judgment annulled § 3 and § 6 of the Act no. 290/2002 Coll
. which dealt with restrictions on the use of the acquired property
things to counties and municipalities for a period of ten years from the date of acquisition only
specifically stated purpose for which it was used at the date of transition,
because it found that in this direction clearly crosses the line and viewpoints
permissibility of interference with property rights.
year period of limitation in a given context did not seem adequate.
Constitutional court concluded "... that the restriction of property rights in these
does not comply with the provisions in relation to all the proportionality principle
components required conditions limiting a fundamental right and therefore this
provisions for their conflict with Art. 4 para. 4 in conjunction with Art. 11 paragraph. 1 of the Charter
set aside. "
51st In its judgment dated February 5, 2003, Ref. Nos. Pl. US 34/02 (Collection
decision, volume 29, judgment no. 18; promulgated under no. 53/2003 Coll.)
Constitutional Court stated that "the Constitution establishes a legal personality
territorial governments and anticipates that self-governing bodies have
own property and manage their own budget ( Art. 101 par. 3).
course, the Constitution also assumes a uniform regulation of state governments in the form
legal framework. the definition of that part of public affairs
local or regional association of citizens capable of managing is entrusted || | legislators or state power (Art. 104), not the Constituent Assembly, which would
at the highest level of national law define matters of local importance
. the Constitution explicitly foreseen in Art. 105
share of local government units to exercise state power on the basis of statutory
mandate. Such mediation exercise of public power, of course with
entails the subordination of national governments control
whose purpose is to ensure the quality of state authority.
constitutional text does not say clearly whether local government units to save power
of state administration, or may be such a statutory transfer
solely on the basis of an agreement between the state and the respective self
total. Deciding on the competence of local government is always political.
52nd In particular the conclusions set out in the judgments of the Constitutional Court. Nos. Pl.
US 5/03 and Pl. US 34/02, the Constitutional Court refers, since no reason to deviate from them
53rd Also the European Charter of Local Self-Government, which was within the Council of Europe
adopted in Strasbourg on 15 October 1985 and named
Czech Republic was signed on 28 May 1998 (published in the Collection of Laws under No.
. 181 / 1999 Sb.) stems from the fact that local communities are
one of the main foundations of any democratic regime. In Art. 9
stipulates that local communities have within the state economic policy
right to adequate financial resources of their own with which they can within their powers
freely. Financial resources of local communities
are commensurate with the responsibilities provided for by the constitution and the law. Financial systems
underlying resources to local authorities are
available must be sufficiently diversified and flexible to allow that these
resources as far as possible with the real evolution costs
performing tasks that local communities have. Local authorities
consult the appropriate manner, as they are redistributed resources are allocated
54th On the question of the constitutionality of the statutory restrictions on ownership rights and eligibility
government to manage public affairs section in relation to health protection
can draw the following proposition.
55th The arguments contained in the petition of a group of senators to annul
contested provisions of the Act no. 245/2006 Coll. It includes benchmarking
public interest in the provision of care for people's health in relation to public
interest on the one hand and to ensure the protection of property rights and protection
separate powers of local governments, on the second
. Based on the priority protection of the rights territorially separate units and the
emphasize the principle of independence of local governments to the state.
The Constitutional Court, however, emphasizes that it is aware that the rights to life and health
, as regulated in Article. 6, paragraph. 1 and Art. 31 of the Charter, are
absolute fundamental rights and values and that it was in relation to these absolute values
be weighed against the right to self-government and the right
56th With this in mind you can assess changes and impacts that
on providing health care and exercise independent powers of local self-government units
in healthcare has, respectively. will, Act no. 245/2006 Coll.
Principle of Proportionality
57th Similarly, as in all democratic constitutional courts
Czech Constitutional Court for resolving a conflict between fundamental rights
possibly constitutional protected public goods, in proceedings
control standards in proceedings on constitutional complaints and applies the principle of proportionality
'58. To draw a conclusion in the case of conflict of fundamental rights or
public good, as principles, unlike the case of a conflict of norms
single / sub-constitutional / law, the Constitutional Court is guided by the
optimization, ie. The postulate of minimizing restrictions
fundamental rights and freedoms, if necessary. public good. Its content is the maxim that, in the case
conclusion on the merits of giving priority to one of two in the
conflicting fundamental rights, respectively. public goods is a necessary precondition
final decision is to use all possibilities
minimize interference in one of them. The optimization can
normatively derived from Art. 4 par. 4, according to which
fundamental rights and freedoms must be preserved when applying provisions of
limits of fundamental rights and freedoms, so, analogously also in the case | || their limitations as a result of being in conflict (cf..
Constitutional court file. Nos. Pl. US 41/02, Collection of decisions, volume 32, judgment no. 10;
promulgated under no. 98/2004 Sb.).
59th In its judgment of 20 June 2006, sp. Nos. Pl. US 38/04 (promulgated under
no. 409/2006 Coll.) The Constitutional Court, as in the judgment of 13 August
2002 sp. Nos. Pl. US 3/02 (Collection of Decisions, volume 27, judgment no. 105;
promulgated as no. 405/2002 Coll.), Stated that in cases of conflict
fundamental rights and freedoms with the public interest, respectively.
other fundamental rights or freedoms, "... it is necessary to evaluate the purpose (aim) of such interference
in relation to the means employed, and the measure for this evaluation is
principle of proportionality (in the wider sense) that
may be also called a ban on excessive interference with rights and freedoms.
This general principle contains three criteria for evaluating the admissibility of interference.
the first of these is the principle of the capability of meeting the purpose (or suitability), according to which
relevant measure must be capable of achieving the intended
objective of protecting another fundamental right or public good.
Next is the principle of necessity, under which it is permitted to use only the least intrusive
- in relation to the affected fundamental
rights and freedoms - of several possible means. the third principle is the principle of proportionality
(in the narrower sense) under which detriment in a fundamental right may not be
disproportionate in relation to the intended aim, ie. a measure restricting || | fundamental human rights and freedoms may not, in the case of a collision
fundamental right or freedom with the public interest, the negative consequences
exceed the positive, which represents the public interest in these measures
60th The test of proportionality requires finding and identifying targets
provisions restricting fundamental rights. As mentioned above
explanatory memorandum to the Act no. 245/2006 Coll., The aim of this law is
creating the optimal legal environment for the existence and operation
hospitals in the public domain and establish a basic network of these || | hospitals. The Constitutional Court is aware of the fact that
create a network of public health facilities is part of the complex
issues of health care, based on certain constitutional principles and
which should finish its total solution to respond to the common || | developed democratic countries as well as internationally agreed, respectively.
Recommended opinion (Art. 1, paragraph. 2 of the Constitution). The Constitutional Court states that the contested provisions
are able to achieve the desired goal, ie.
Ensure the provision of public services in health care and the
target was found to be legitimate.
61st Another criterion, which is necessary to examine the desirability selected
measure in terms of its sustainability in relation to the basic law - ie.
To the right government units to manage their property and
right to protection of property. The Constitutional Court as one of the main reasons why the issue
government under constitutional law, considered
need to protect the government from tampering State (see Article
. 100 and Art. 101 of the Constitution). In this case, state law no. 157/2000 Coll
. and no. 290/2002 Coll. transferred part of its assets to regional
local authorities and at the same time they also told of the exercise of state power in
field of health care. However, the legislature did not explain
necessity of intervening in the ownership of local governments in relation to medical facilities
contested provisions of Act no. 245/2006 Coll.
The Art. 101 para. 4 of the Constitution allows the state to intervene in the affairs of local governments
only if required to protect the law.
The explanatory memorandum to the Act no. 245/2006 Coll. does not need the intervention of a desirable
accuracy. The allegation in the explanatory memorandum, and that the time that has elapsed since the adoption
Act no. 290/2002 Coll., There was a variety of reasons
transformation of hospitals - contributory organizations of the regions (municipalities)
trading companies, although stating that condition, on the other hand, does not explain
non-conceptual process of the state, which initially
some hospitals transferred to the ownership of self
territorial units, and then again some of them are allocated to public networks | || medical facilities, which justifies its responsibility to fulfill its responsibilities for real
safeguard fundamental rights. Unable to accept the thesis
also mentioned in the general part of the explanatory memorandum to the Act no. 245/2006 Coll
., That local government units are in this case able to ensure
protect the public interest and it is the responsibility of the state to the
ensuring the constitutional rights take appropriate measures, including legislative
as these considerations are not justified, even
explanatory memorandum. The Constitutional Court can not overlook that the legislature when
considerations about the need for new legislation, for example, passed legislation
rules examination of the management of local governments
imposed by law no. 250/2000 Coll., On budgetary rules of territorial budgets
, as amended, which is ensured by law no.
420/2004 Coll., on reviewing the management of municipal authorities
and voluntary associations of municipalities, as amended.
Cited state laws created effective tools to control the management of territorial
government units, to increase the transparency of public finances and preventing
deficits in the management of these units in accordance with Art. 104
/ ex-Art. 104c of the Treaty establishing the European Community.
Although the state is entitled to elect to hedge rights arising from Art. 31
Charter, the Constitutional Court, however, in conjunction with the trends of the European Union
when discussing future strategies of the European Union and also in conjunction with the above
cited the conclusions of the Council of the European Union (2006 / C 146/01
) a situation where the Council of the European Union noted that the European Commission
develop a Community framework for safe, high quality and efficient health care
, the proposed regulation Act no. 245/2006 Coll.
seems at least not systematic.
62nd It is also necessary to take into account that the forced curtailment of ownership rights is
possible only on the basis of law and for compensation. In this case
intervention of state power is the right of ownership counties violated, although the way the law, and it
provisions of § 34 para. 2 second sentence and § 34 para. 6 of the Act no. 245/2006 Coll
. The contested provision, on the one hand, the county
impose an obligation to ensure the region in each district at least one public
medical facility and if it is not established a community and fails to do so or else
founder, is the responsibility of the region to set up this device.
County is thus the duty at their own expense to perform the tasks arising from
constitutional rule of law (the Charter and international treaties) without being able
effective way affect membership of that public
medical devices to network. On the other side of
contested provision that would happen in any way guarantee the financial security
newly established public medical facilities from
Public funds. As the Constitutional Court has already stated in the aforementioned
judgment file. Nos. Pl. US 5/03: "Now the management of their property
separately on their own account and own responsibility which is the attribute
government. Prerequisite fulfillment of effective performance of the functions
local government is therefore the existence of its own and sufficient financial
respectively. property resources ".
63rd Given the above, the Constitutional Court finds that in relation to
§ 34 para. 2 second sentence and § 34 para. 6 which impose
region and ensure, if necessary, set up in every district at least one
public health facility, without any prior
guaranteed secure sources of financing this plan the state legislature did
other components of the test of proportionality, the principle of necessity.
For the status quo because the Constitutional Court had assumed that the state is not going
this restriction of the right of self-government, as well as ownership,
possibility that actual performance of self makes, does not compensate
(Art. 11, paragraph . 4 of the Charter), which necessarily leads to the conclusion that the reference
purpose of the law, which in this case is the protection of the public good (health)
can be achieved by alternative means that the constitutionally protected value
limit the extent as small as possible. The cited provision
interfere with the autonomy of the will of local governments beyond the scope of Art. 101 paragraph.
4 of the Constitution.
64th Also in relation to § 34 para. 3 point. a) and § 40
Annex to Act no. 245/2006 Coll., on the basis of the wording of the specific
medical facilities listed in the Annex to Act no. 245/2006 Coll.
Become the expiry of 180 days from the effective date of the Act no. 245/2006 Coll
. public health institutions and form a network of public health facilities
, the Constitutional Court notes that the legislature did not fulfill the criteria of necessity
. If the second step
application of the proportionality principle is simple assessment / sub-constitutional /
rights aspect of necessity, which involves an analysis of pluralism
possible normative means in relation to the intended purpose and their
subsidiarity in terms of limiting constitutionally protected values (
fundamental rights or public goods), the Constitutional court held that the reference
objective can be achieved - of several possible means -
less intrusive means. This established violation of the principle of proportionality, it is necessary to proclaim
as a manifestation of arbitrariness. It can not be overlooked that the purpose
protection and promotion of public health is to draw funds from the public health insurance
public health facilities
included in the respective networks without prior
clearly defined criteria, but the fulfillment of constitutionally guaranteed rights life and the right to health protection
65th From the foregoing, the lawmakers chosen solutions do not meet the criteria of necessity
. It was therefore not necessary to continue
test of proportionality and examine whether the contested provisions
honor the principle of proportionality in the narrow sense.
Principle of protection of fundamental rights
A) the principle of legitimate expectations
66th The Constitutional Court dated March 8, 2006, file no. Nos. Pl.
US 50/04 (promulgated as no. 154/2006 Coll.), Stated that "the principle of legitimate expectations
in accordance with the case law of the European Court of Human Rights
ruled that it clearly emerged the concept of protection
legitimate expectations as a property claim, which has already been individualized
individual legal act, or is individualizable
directly on the basis of law. "(cf. judgment file. Nos. Pl. ÚS 2/02, Collection
decision, volume 32, judgment no. 35; promulgated as no. 278/2004 Coll.).
Based on these principles, the Constitutional Court states that the principle of protection of legitimate expectations
provisions of § 34 par. 3 point. a) and § 40
annexed to the Act no. 245/2006 Coll. She was violated. The essence is that
individual medical facilities, whether any legal form, have
subject to certain conditions imposed on them the right to legal norms
raise funds from the public health insurance.
Cited provisions of the Act no. 245/2006 Coll.
their individualized entitlement violated because the medical facilities in Annex
to Act no. 245/2006 Coll. unclassified unilaterally are discriminated against
entities listed in the Annex, because the legislature did not define the criteria
Selection. Protection of legitimate expectations is yet integral part
rule of law.
B) The principle of equal rights, legal certainty and the generality of law
67th In Annex to Act no. 245/2006 Coll. a list of 146
medical devices under the provisions of § 40 para. 1 of Act no. 245/2006 Coll
. become the expiry of 180 days from the date of entry into force of this Act
public health institutions.
According to the Constitutional Court, the State in the exercise of its power can extend the non-profit sector
a new legal entity called.
Non-profit institutional medical facilities such as likewise, in the case of charitable companies
Law no. 248 / 1995 Coll., on generally beneficial companies
and amending and supplementing certain acts, as amended,
which also coincidentally was originally submitted to the Government
Chamber of Deputies of the Czech Republic as the law on "non-profit || | legal entities "and in the course of the legislative process that the words
" a non-profit legal entities "is replaced by" a general
service companies ". The Act amended the status and conditions
charitable societies whose basic definitions
exists, but is characterized by certain features such as formal
specific provisions under the Act, non-character (
separation from the state apparatus), local government (perform control of its own affairs)
use profits to provide public services and service
public welfare. In contrast, the Act no. 245/2006 Coll.
introduced into Czech law the institute of public non-profit organization whose mission is
fulfillment of public interest in the provision of health care. On the one hand,
, although § 3 et seq. edited establishment and formation
public medical facilities so that by Act no. 245/2006 Coll.
Could be established, on the other hand, the provisions of § 40 para. 1 provided that
legal persons listed in the Annex to this Act enumeration method
become the expiry of the deadline specifically
public health facilities. The list of these medical devices annexed to
Act no. 245/2006 Coll. lacks a law for a typical feature of universality and states
existing medical facilities in unequal positions.
68th The Constitutional Court has previously held that the fundamental principles
substantive law belongs highs general legal regulation
(requirement of the generality of the Act). Generality of content is ideal, typical
a significant feature of the Act, in relation to governmental and administrative acts,
or court judgments. The purpose of the separation of powers into
legislative, executive and judicial custody is universal and primordial power
state regulation legislation, implied a general power of regulation and
decisions on individual cases management and nondisclosure
decisions on individual cases the judiciary (see Constitutional court
dated April 18, 2001, file no. Nos. Pl. US 55/2000, Collection of decisions
volume 22, judgment no. 62; promulgated as no. 241/2001 Coll.) .
69th If the circuit medical devices that become public medical facilities
is exhaustively defined in the Annex to Act no.
245/2006 Coll., Neither the explanatory memorandum nor the course of the legislative process can not be inferred
No, let alone objective criteria for their selection.
Yet the group thus defined medical facilities are
health insurance companies are obliged to conclude a contract. The fact that
medical facilities mentioned in the list were selected randomly
evidenced by the fact that they are included in it repeatedly, indicating improper
legal forms with incorrect name or identification number, as || | found from the legislative process. The Constitutional Court has previously
stated that one of the basic prerequisites for the rule of law is the existence
internal consistency of its legal system. Therefore, it is also necessary that the individual
laws are comprehensible and that have resulted
predictable consequences. In the case of the contested Annex to Act no. 245/2006 Coll
. but it is clear that these requirements are not met, even in relation to those
medical facility, founded by the state.
Therefore the Constitutional Court concludes that the unconstitutionality of the contested annex, which
is contrary to Art. 1 of the Constitution, can not be overcome interpretation.
70th The Constitutional Court is aware of the fact that a legal framework that
favoring one group or class of persons over another can not be alone
itself without further to violate the principle of equality.
The legislature has a certain discretion to decide whether such preferential treatment.
It must see to it that the preferential approach is based on
objective and reasonable grounds (a legitimate legislative aim) and that
between that aim and the means to achieve it (legal advantages) there is a proportional relationship
71st The constitutional principle of equality belongs to fundamental human rights, which
constitute the value system of modern democratic societies.
Generally, we can say that "inequality", ie. A different legal regime for participants
already existing legal relations on the one hand and the other participants
relations emerging on the other hand, occurs basically whenever | || becomes law. So that the offense was committed with the various entities that
are in the same or a comparable situation are treated differently
way without any objective and reasonable grounds for the
different approach. Assessment of this conflict must abide
aspect of proportionality, which in this case was not met.
72nd The Constitutional Court in no way disputing the right of the State with regard
its constitutional responsibility to secure the rights arising from Art. 31
Charter, elect to hedge these rights and the instruments of control and regulation of medical devices
health care providing, as
pursues a legitimate aim. However, this right can not be understood in absolute terms, ie.
In the sense that in order to ensure this can completely eliminate all
other rights and constitutionally protected values, including the right to self-government.
Legislation contained in Act no. 245/2006 Coll.
concept is an elected health system based on
obligation to ensure protection of health and healthcare delivery to citizens. If this obligation is met
health insurance through
healthcare facilities with which they concluded a contract for the provision and payment of health care
according to § 46 of Act no. 48/1997 Coll. and in accordance with paragraph. 2
cited provision, health insurance is an obligation
before entering into a contract for the provision and payment of healthcare
held selection proceedings (the selection procedure may suggest
health insurance or medical facility authorized
provide health care in the relevant field), then the provisions of § 34 para. 3 point. a)
Law no. 245/2006 Coll. circumvents the above cited provision and also puts them in an unequal position
medical facilities - the entities specified in the list
against medical device in the list above.
Fact creates two categories of medical devices from which
medical devices included in the network of public health facilities
under the provisions of § 34 para. 3 point. a) and § 40 of the Act no. 245/2006 Coll.
are favored against a group of medical facilities in the Annex to the Act
unlisted, without being given clear and specific rules for inclusion
this or that medical device to the list set out in Annex
to Act. No. 245 / 2006 Sb. For completeness, the Constitutional Court adds that the state could
organize medical facilities in terms of their fundamental rights guaranteed
defined in Article. 6, paragraph. 1 and Art. 31 of the Charter, already before
left his belongings extent provided by law no. 290/2002 Coll.
Regions and municipalities.
73rd When assessing the seriousness of the constitutionally protected values
territorial governments and individual medical device
contested provisions of Act no. 245/2006 Coll. It appears to be a disproportionate restriction of content,
and unjustified in light of the generally accepted and shared hierarchy of values
74th From the perspective of the principle of proportionality, the contested provisions of the Act no. 245/2006 Coll
. fail criteria and requirements of necessity, nor
not meet the requirements of the principles of protection of legitimate expectations, equal status
entities generality of law and legal certainty. Art. 11 paragraph. 1 of the Charter and Article
. 8 and Art. 101 para. 4 of the Constitution were thus violated.
75th According to Art. 1 of the Constitution of the Czech Republic is a democratic constitutional state.
Constitutional Court has previously stated that the Czech Republic is committed to the principles
not only formal, but primarily the substantive law. Constitution
Accepts and respects the principle of legality, as part of the overall concept
law, however, does not bind the positive law only to formal legality, but
interpretation and application of legal norms
subjects their content in material sense. As stated above, one of the basic assumptions
rule of law is the existence of internal consistency
its legal system. Therefore, it is also necessary that various laws
be comprehensible and that have predictable consequences resulted.
76th Based on the foregoing, the Plenum of the Constitutional Court decided to derogate the statutory provisions in question
amended as indicated in the statement
this finding. This means that the Constitutional Court repeals
provisions of § 34 para. 2 second sentence, § 34 par. 3 point. a) § 34 para.
6, § 40 and the Annex to Act no. 245/2006 Coll.
Plenum of the Constitutional Court decided, due to the repeal of the provisions of § 34 para. 2, second sentence also
repeal provisions of § 34 para. 2, third sentence, which reads: "The second sentence is
apply to the City of Prague" although it was not proposed
proposed, because this sentence, due to the cancellation provisions of § 34 para. 2
second sentence, has entirely lost its meaning (see Constitutional court
dated 31 October 2001, Ref. No. . Pl. US 15/01, Collection of decisions, volume 24,
judgment no. 164, promulgated under no. 424/2001 Coll.). Other provisions of Law No.
. 245/2006 Coll. remains that the Constitutional Court judgment unaffected
because it was not challenged.
77th The Constitutional Court also emphasizes that, subject to review by the Constitutional Court
the provisions of § 34 para. 2 second sentence, § 34 par. 3 point. a)
§ 36 para. 6, § 40 and the Annex to Act no. 245/2006 Coll. This means
that the Constitutional Court did not review the constitutionality of other provisions of the Act no. 245/2006 Coll
. Although the Constitutional Court annulled the verdict of this judgment mentioned
provisions of the Act no. 245/2006 Coll., Retained the process of establishing,
establishment and operation of public non-profit institutional health facilities
this law is based, since the present proposal attacked
not. Therefore, the Constitutional Court did not specify any further
solutions in the field of protection of life and health and their treatment leaves to be able
executive and legislative.
78th According to § 58 par. 1 of the Constitutional Court, judgments
which the Constitutional Court decided on a petition to repeal the law or other regulation by
no. 87 paragraph. 1 point. a) and b) of the Constitution, enforceable
day of their publication in the Official Gazette, unless the Constitutional Court decides otherwise
. The Constitutional Court has held that the application for annulment of the contested provisions
§ 34 paragraph. 2 second sentence, § 34 par. 3 point. a) § 34 para. 6, § 40 and
Annex to Act no. 245/2006 Coll. It is justified and therefore canceled the day
this judgment. It would be inconsistent with the principles
democratic rule of law and contrary to the principles of legal certainty,
in the period from publication to publication of a judgment could be contested
provisions of the Act no. 245/2006 Coll. applied.
79th Regarding the petitioner's proposal for priority discussion of things
Constitutional Court did not consider it necessary to separate resolution issued
according to § 39 of the Law on the Constitutional Court, that the matter which the
concerned is urgent. The Constitutional Court, however, even without such a formal resolution
matter priority because of the legal uncertainty
medical facilities secondly listed in the Annex to Act no. 245/2006 Coll
. and secondly, those in the Annex to the Act are not.
Chairman of the Constitutional Court:
JUDr. Own hand
Dissenting opinion according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, was delivered to the plenary decision
Judge Jan Musil and his reasoning judges Vojen Güttler, Ivana Janu, Vladimír
crust, Pavel Rychetsky, Miloslav Vyborny and Eliska Wagnerová.