On The Proposal To Repeal Decree No. 267/2012 Coll.

Original Language Title: ve věci návrhu na zrušení vyhlášky č. 267/2012 Sb.

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77/2014 Coll.

Constitutional Court
On behalf of the Republic

Constitutional Court decided under ref. Ref. Pl.ÚS 43/13 of 25 March 2014
Plenum composed of the President of the Court and the Judge-Rapporteur Paul Rychetský and
judge Stanislav Balik, Louis David, Jaroslav FENYK, John Philip
, Vlasta Formánková, Ivana Janu, Vladimir crust Musil,
Vladimir Sládečka, Radovan Suchanek, Catherine Šimáčková, Milady
Tomková, Jiri Zemanek and Michaela Židlická on the proposal
group of 21 senators of the Senate of the Parliament of the Czech Republic, represented by JUDr. Milan
Cichon, an attorney based in Ostrava - Poruba, Main Street 1196, at
repeal Decree no. 267/2012 Coll., On the list of indications for
spa treatment rehabilitation care for adults, children and adolescents ,
possibly the annulment of § 2 para. 2 of the Decree, with the participation of the Ministry of health as
party and Mgr. Anna Šabatová,
Ph.D., Ombudsman intervening,


Ministry of Health Decree no. 267/2012 Coll., On the
list of indications for spa treatment rehabilitation care for adults, children and adolescents
, abolishing the expiry on 31 December 2014.

Summary of the proposal

First On 23 August 2013 the Constitutional Court received a petition from a group
21 senators (the "petitioner"), for which he is a senator, MD. Mgr.
Vladimir Placek, seeking the annulment of the Ministry of Health no.
267/2012 Coll., On the list of indications for spa
rehabilitative care for adults, children and adolescents (hereinafter "the contested
Decree") , possibly on the abolition of § 2 para. 2 of the contested ordinance.

Second The petitioner believes that the Indication list for spas
rehabilitative care for adults, children and adolescents (hereinafter "indicator
list") should be regulated by law, respectively. Act as an annex.
Providing spa treatment rehabilitation care falls within the framework
right to free medical care under the public health insurance
within the meaning of Article. 31 of the Charter of Fundamental Rights and Freedoms (
"Charter"), the which implies that the determination of the extent to which this
care covered by public health insurance, is reserved by law,
An approval within a parliamentary democratic debate and can not be
subject only sub-statutory norms.

Third In relation to the provisions of § 2 para. 2 of the contested decree under which
last treatment stay within a defined period before the effective date of this decree
considered the basic treatment stay, and thus all other corresponding
treatment stays the same indication stay for repetitive,
petitioner alleges inconsistency not only with Art. 79 par. 3 of the Constitution
Czech Republic (hereinafter "Constitution"), but also the principles of predictability
law, legitimate expectations and legal certainty. It believes that
contested provision regulates legal relations arising before its effective
unconstitutional manner because they affect the legitimate expectations
patients experiencing further, respectively. repeated, therapeutic
stay. They can no longer rely on them
this stay will be covered by public health insurance and are forced to pay him a
own resources, which are not necessarily reflected in their property sphere.

Fourth Significant limitations in particular the possibility of repeated treatment, which occurred in
result of the contested ordinance, according to the petitioner cause of the decline
usability of the spa facilities and the associated reduction in the quality
spa treatment. This condition can have an adverse effect on health
citizens, since the positive effect they have medical procedures just to
with hindsight by prolonged and repeated administration. For this reason
considers that the contested ordinance with its regulation affecting the very existence
or actual implementation (essential content) right to health protection and
right to free health care on the basis of public insurance, therefore
it is in conflict with Art. 4 para. 4 in conjunction with Art. 31 of the Charter.
Is convinced that the restriction of fundamental rights will not stand
of the principle of proportionality and that he be granted
discriminatory character. Also notes violations in relation to the law on business
according to Art. 26 of the Charter.


The proceedings before the Constitutional Court

Fifth The Constitutional Court, under § 69 par. 1 and 3 of Law no. 182/1993 Coll.

Constitutional Court, as amended (hereinafter the "Act on
Constitutional Court") has sent a proposal to the Ministry of Health (hereinafter
"Ministry") as the party and the Ombudsman, who
He is entitled to join the proceedings as an intervener.

I of Austria Statement of the Ministry of Health

6th From the statements of the Minister of Health, MD. Martin's girlfriend, MBA, of
3 October 2013 given that the Ministry of Health issued
contested decree under Art. 79 par. 3 of the Constitution on the basis of § 33 para. 2
Law no. 48/1997 Coll., on public health insurance and amending and supplementing certain
related laws, as amended by Act no. 369/2011
Coll. (hereinafter the "Act on public health insurance").
Possibility of providing spa care as paid services follows from the above
statutory provision, the contested decree specifies only its
indication assumptions that are based on medical nature.
Ordinance itself but does not limit fundamental rights and freedoms. Not applicable immediately
right to health protection, does not regulate the conditions under which
can get authorization to provide medical services, nor
not prevent providers offer these services, whether for services paid or not paid out
public health insurance. In the event that
health condition of the insured requires the provision of spa care, is on his
exposed to this care proposal, whereby after a review doctor
competent health insurance company confirms it is possible to pay by
health insurance. Given the course of the preparation and approval
contested decree, including the appropriate consultation process that
Minister summarized in detail, it should not succeed assertion that its acceptance
accompanied by a lack of democratic debate.

7th The objection of retroactivity, the Minister said that the contested ordinance newly
distinction between primary and recurrent medical residents, while
patients must first undergo basic lodge before any stay
repeated, respectively. repeated stays. Since the previous Decree no.
58/1997 Coll., Stipulating indicative list of spa care
adults, children and adolescents, these concepts did not know it was necessary to ensure the continuity
decisions on proposals for a spa treatment rehabilitation
care. It was for this purpose that the transitional provisions of § 2 para. 2
contested ordinance, which the appellant seeks its eventual verdict
defined the basic treatment stay longer in relation to the previously absolved
stays. The fact that this provision applies to
period 2009-2012, has yet to reflect the longest period
out in the display list as a condition for the onset of repetitive
stay, which is the indication I / 1 (malignant tumors ) 36 months.
Patient has cancer treatments ended eg. In 2010 and then graduated
spa treatments under previous regulations, will be able to complete even
repeated stay because his previous stay at
under that provision will regarded as essential under the new ordinance
. If this provision were to lapse, respectively.
decree would not previously been included, would have the patient first
fulfill the conditions laid down for basic stay, including onset to treatment
12 months after the completion of a complex antitumor treatment, which should, with regard
to the resulting time difference may no longer be possible.
In such case, the patient would be the new Decree damaged. The minister added that
used legally technical way, respectively. legislative and technical reflection
insured status under the new legislation, not in the Czech legal order
something unusual [see. eg. § 98 paragraph. 1 of the Higher Education
and Amendments to Other Acts (Higher Education Act)
or § 59 of Act no. 85/1996 Coll., on Advocacy], and its purpose is | || strengthen the principle of legal certainty within the refunding relations
system of public health insurance. It is not a violation of the right

8th List of indications is an important element for
professional healthcare providers prescribing spa treatments
insured, while the reasons for its adoption was purely professional.
The purpose of the new legislation, which replaced the previous Decree no. 58/1997 Coll., It was especially
projection of current medical knowledge and practices, including

Pharmacotherapy, as well as ensuring effective delivery
spa treatment rehabilitation care, efficient use of funds from
health insurance funds, reserving funds for
treatment of those insured, which is the expected significant contribution to improving
or maintain health, defining the scope of a comprehensive spa Hospital
rehabilitative care to states after severe injuries, operations and treatment
serious diseases and extending care allowance. In the acute care are available today
minimally invasive surgical procedures for patient-friendly,
number of diseases can be captured through timely
modern diagnostic technologies and subsequently in time to treat, or prevent their deployment
modern pharmaceuticals. The need for subsequent Spa Hospital rehabilitation
so for a number of diseases has changed, both in terms of the length of treatment and recurrence
medical visits.

9th The minister also noted that the contested ordinance was drawn to
principle to establish uniform conditions for the provision Spa Hospital
rehabilitative care. In the demarcated spa locations is available
respective local natural healing that has certain chemical and
physical characteristics that have beneficial effects on the treatment of diseases
with a specific diagnosis. All places where there is a proven
source with the medicinal qualities and whose ministry issued
permission to use the resources under the Act no. 164/2001 Coll., On natural healing
sources, sources of natural mineral waters,
natural spas and spa locations and
amending certain related acts (spa Act), as amended,
are included in the display list. This is intended to achieve an objective,
equal and transparent approach to providing health care services. In many places
widened the range of diseases that there may
heal. In its observations, the Minister explained the reasons technical nature that
led to the setting of a basic period of treatment in adults staying just on
21 days, and points to the possibility of its extension to the design of a physician and
state of health of the patient in case most indicators
subgroups. It is thus given the option of setting the length of an individual
therapeutic stay patient with respect to his specific medical condition, and thus also
effective spending of funds for its adequate
treatment. In case of repeated treatment stay was its length determined
for 14-21 days. The stay is provided in relation to the stay
base that is not already a serious conditions, such as directly linked
acute inpatient care. In the case of pediatric patients
minimum duration of the treatment stay fixed at 28 days.

10th Argument about unfulfilled spa facilities for minister does not
relevant because the purpose of the indicator is not fulfilling their
but technical definition of prerequisites and conditions for granting
spa care covered by the public health insurance
. Decrease in the number of patients is influenced more unquestionable
factors, including the solvency of the population, the impact of labor market
which employed groups does not always undergo a long
spa stay within sick leave or vacation, and strengthening || | element of treatment effectiveness in approving proposals made by health insurance companies
. His emergence has occurred gradually in recent years
taking things all stakeholders (including health
insurers, doctors spa treatment rehabilitation care
suggest themselves and their providers) to respond to it.
Despite that, the subject of care continues to be available to all patients who
treatment was proposed and approved.
Ministry has no indication that these patients to spas 'get' or that they had to wait
. Can not also overlook the fact that rehabilitation is provided
outside the spa, for example. In specialized medical institutions or
form of outpatient care with specialists. The treating physician such
form of care for the patient due to propose a current and overall health
. It is always crucial individual access to specific
patient. In conclusion of his statement, the Minister refused discriminatory nature

Contested decree. Those who fall into the same indication group or subgroup
are given equal treatment. The proposal is not obvious, even
it, what is the infringement of Art. 26 of the Charter.

Expression Ombudsman

11th On 12 September 2013, ie within the ten-day period, the Constitutional Court received a communication
former Ombudsman JUDr. Paul
Varvařovský that, pursuant to § 69 par. 3 of the Constitutional Court enters into this
intervene. In his subsequent statement of
30 September 2013, he stated that it concurs with the arguments of the petitioner
. According to settled case-law of the Constitutional Court can not
secondary legislation to interfere in matters reserved to the law, thus
establish primary rights and obligations, which does not respect the contested ordinance
. By establishing what is considered care covered and what is not
, goes beyond the sub-statutory regulation. As for her
§ 2 paragraph. 2, the Ombudsman considers that this provision
regulates legal relations arising prior to the effectiveness of the contested ordinance, so he can admit
inadmissible retroactive effect. Not only it is contrary to the principles
predictability and legal certainty, but in the case of the first drawdown
therapeutic stay in effect a new regulation which is not
first in the order, is also based on its interference in legitimate | || expectations of policyholders who have already spa treatment rehabilitation care
not covered by public health insurance. For these reasons
proposes that the Constitutional Court annulled the contested decree.

II./c Petitioners

12th Those observations were sent to the petitioner, which reacted
its reply dated 29 October 2013. First, he said that his proposal
continues and sees it as justified. In his opinion, the system
basic and repetitive therapeutic stay described as advantageous for
citizens. Although the decree allows the extension of the stay, however, this option is
revision in practice, doctors used a very small scale.
The fact that in the field of medical procedures are constantly taking
enhance, not alter the fact that the spa medical rehabilitation stay
takes effect just after repeated and prolonged administration. On top of this, however, can not
occur when patients felt the loss of threatening the continued functioning
spa facilities, whose cause is, according to these facilities
published in the media being contested ordinance. In addition, there is the
her due also to breach of the principle of legitimate expectations of citizens
because they are in the newly introduced system of primary and recurrent
therapeutic stay can not rely on the fact that their treatment will be covered by
health insurance. The Ministry should introduce this system so it does not touch
legal relations retroactively. This is a basic and fundamental
factor in the whole thing. His argument that the abolition of the transitional provisions
will damage the existing rights of patients without
determination of basic medical stay will not be able to undergo repeated
cure, is actually a confirmation of the retroactive effect of the contested ordinance
. The petitioner believes that the abolition of the provision
will not result in a violation of patients' rights, since the law on the Constitutional Court
to defer enforcement of any judgment granting the petition.
Ministry will have time to process the legislation or part
such a way that it is constitutional. In the final part of his statement
petitioner reiterated its claim that the contested ordinance
restricts the right to protection of health within the meaning of Article. 31 of the Charter, and that the indicator
list should be included in the Annex of the Act and should not be part of only
implementing legislation.

13th Filing dated December 23, 2013 the petitioner added
its argument on the Memorandum of the Association of spa places in the Czech Republic and the Association
spas Czech Republic, which in its opinion
prove the facts alleged by him.

II./d Hearings

14th In accordance with § 44 of the Law on the Constitutional Court, the Constitutional Court case
without holding a hearing, because since he could not be expected
further clarification of the matter.


Assessment of whether the ordinance was issued on the basis and within the law

15th The Constitutional Court notes that it is competent to hear the present

Proposal, which was submitted to an authorized petitioner [§ 64 para. 2
point. b) the Constitutional Court Act] is lawful and complies with all statutory requirements
. He could therefore proceed to substantive examination
contested ordinance, whereby in accordance with § 68 para. 2 of the Constitutional Court
first addressed the question of whether it was adopted and issued constitutionally
consistent manner and within the bounds of constitutionally provided jurisdiction .

16th Article. 79 par. 3 of the Constitution confers
ministries and other administrative authorities the power to issue subordinate legislation, the
whose implementation may occur on the basis and within the law,
if they are to do so by law empowered. That provision must be interpreted restrictively
in the sense that this mandate shall be specific, clear and unambiguous
[see. Judgment dated 21 June 2000 sp. Nos. Pl. US
3/2000 (N 93/18 SbNU 287; 231/2000 Coll.)]. Provided this is the case, the Constitutional Court
investigates whether the secondary legislation issued by a state authority to
by a legitimate and within the limits of its competence, that is, whether the exercise of the powers
moved within the limits and under the Act (

secundum et intra legem
) and not outside the law (

preater legem). Basically it comes to where to be law
X, this rule has determined that it should be Y, but it is to be X1, X2, X3.
Of the enabling provision must be clear intent of the legislature for regulation beyond the statutory standard
. Even in this case, however, secondary legislation
not interfere in matters reserved for regulation only by statute (ie.
Reservation Act) [see. Judgment dated 18 August 2004 sp. Nos. Pl. US 7/03
(N 113/34 SbNU 165; 512/2004 Coll.), Judgment of 22 October 2013 sp. Ref.
Pl. US 19/13 (396/2013 Coll.)].

Statutory authorization pursuant to § 33 para. 2 of the Act on Public Health Insurance

17th From the opening sentence of the contested ordinance implies that it was issued on the basis
§ 33 par. 2 Act on public health insurance, which empowers the Ministry of Health to establish
decree indicative list
spa treatment rehabilitation care, a disease for which can
spa treatment rehabilitation care provide, indicating the assumptions
technical criteria for granting full or contributory spa
medical rehabilitation care for individual diseases, the length of stay and treatment
focus indicator spas.

18th The purpose of the list of indications is carefully define the conditions under which
and the extent to which spa treatment rehabilitation care
medical services covered by public health insurance [§ 13 para. 2 point.
) Of the Act on public health insurance]. It is a supplement (framework)
legal provisions contained in § 33 of the Law on Health Insurance, in accordance with paragraph 1
which this care is paid for the service if it is
provided as a necessary part of the healing process and that its | || provide recommended, the doctor and the doctor confirmed the revision
competent health insurance company.

19th Spa treatment rehabilitation care according to § 33 par. 3
provides and pays for comprehensive or contributory. Complete spa
medical rehabilitation care is defined in paragraph 4 as a follow-up to
inpatient care or specialized outpatient medical care, and
is targeted for rehabilitation, prevention of disability and of dependence
or to minimize the extent of disability. It is fully covered by health insurance
. To her arrival summon the insured on a proposal authorizing physician
provider or hospital attending physician
spa treatment facilities by order of urgency. The insured in the first
order of urgency is to pick summoned within one month from the date of issue
proposal, if agreed attending, review and
spa physician is transferred to a medical facility provider
spa treatment rehabilitation care directly from the medical facility
provider of inpatient care. In the second order of urgency, the patient
summoned within three months, children and adolescents within six months from the date of issue
proposal. Funded spa treatment rehabilitation care
defined in paragraph 5 thereof, which is provided primarily to insured
chronic disease, unless the conditions specified in paragraph

4, which is to provide comprehensive spa treatment rehabilitation care. In this case
contributory spa treatment rehabilitation care is
public health insurance covered only the examination and treatment
insured, but not other expenses, ie accommodation and meals
patient in a spa. May be granted once every two years, unless
review doctor otherwise. Children and adolescents under 18 years
spa treatment rehabilitation care is provided in accordance with paragraph 4 if
not at the request of the parents provided under paragraph 5. For occupational diseases
and other damage to health caused by work their care
pursuant to paragraph 4, if it is recommended or endorsed by the relevant indication
expert on occupational diseases.

20th To assess whether the contested ordinance did not deviate from the limits
statutory authorization, it is desirable to summarize its contents without simultaneously
it must be quoted across its broad wording.
List of indications for spa treatment rehabilitation care, which is included in its Annex
consists of a general part (Part I Annex) and two sub-indicating
lists, the first of which concerns the care of adults (part II annex) and the second
care for children and adolescents (part III of the Annex). Both are divided into eleven
therapeutic groups and they turn into indicator subsets that actually
forms a closed list of diseases (eg. A group of oncological diseases
contains a subset of cancers, cardiovascular diseases group in turn consists
more subgroups, which include
symptomatic coronary artery disease or post myocardial infarction).
Through various subgroups is thus defined list of diseases for which treatment may
provide patients
spa treatment rehabilitation care covered by public health insurance.

21st Contested decree distinguishes between primary and recurrent treatment
stay. Although these concepts further define this, the way it is
used, it can be concluded that their purpose is to distinguish the first and
any other medical visits for the same indication, and because of
setting different conditions under which these visits will be covered.
The onset of the patient's basic medical stay must occur within the time period
unfolds, typically from determining an appropriate diagnosis, surgery
execution or completion of treatment in a medical facility. In the case of repeated
spa therapy it is then necessary to place the onset
within a specified period from the completion of the primary residence or repeated
spa stay. For completeness, it should be noted that in some cases
this deadline is not fixed, which means that the list of indications makes
treatment duration stay only indication in question.

22nd Basic and repeated treatment stay may take the form of a comprehensive
spa treatment rehabilitation care (in the ordinance referred to as K
) or contributory spa treatment rehabilitation care (
in the ordinance referred to as P). Contested decree in their
general provisions (Part I Annex, point 2) provides that the length of stay
basic treatment for adult 21 days and in children and adolescents
28 days and if the spa treatment rehabilitation care in
specific indication provided as a complex, can the chief doctor of the medical device
providers of care for indications shown on the display
list depending on the condition of the insured propose its extension.
Extension and its length is subject to approval by the appropriate medical assessor
health insurance. Length of stay in the form of repeated treatment
comprehensive spa treatment rehabilitation care is determined
same manner as in the case of basic medical stay, including the possibility of extension
(Part I of Annex point 3). However, if repeated treatment stay
form of contributory spa treatment rehabilitation care is its length
set design by physicians who care recommended for 14 or 21 days
. If a given period of 14 days, the chief doctor of the medical equipment provider
spa treatment rehabilitation care under a particular condition
insured propose to extend it to 21 days.
This extension is subject to the consent of the physician reviewer
competent health insurance company.

23rd It follows that the display list in respect of each indicator

Subgroup determines whether a primary or recurrent treatment stay
insured covered by public health insurance to the extent
complex or contributory spa treatment rehabilitation care (ie whether it will stay
paid as a whole or merely the examination and treatment), when they must
for this purpose are still getting this stay, what should be its length and whether
it may get extended. This, however, contained therein legal
finish exhausts. Like other conditions, whose fulfillment depends
payment of spa treatment rehabilitation care from public health insurance
, the contested ordinance in relation to each indicator
groups or subgroups stipulates what examination should precede
exposure draft on treatment stay, as well as other technical criteria for granting
spa treatment rehabilitation care (specializations
doctor who recommended care, health and security
care providers in medical facilities spa Hospital
rehabilitation care). They are yet defined and negatively
through contraindications, listing the conditions of a patient or other
circumstances that prevent the effective provision of proper care (their
general definition is contained in Part I, item 7). For each indicator
group provides an indicative list of natural medicinal resources and determine the appropriate
spa location. Finally, the contested ordinance regulates the requirements for the design
spa treatment rehabilitation care (Part I, Item 6
indication list), which is connected with the fact that the scope of the data contained therein are
derives precisely from the conditions laid down in the display list.

24th The Constitutional Court on the basis of the findings concluded that the
edition of the contested decree on the basis and within the limits of statutory authority
contained in § 33 para. 2 of the Act on public health insurance.
It is obvious that the establishment of the list of diseases for which granted
spa treatment rehabilitation care paid from public health insurance
including additional conditions to which entitlement to reimbursement must be met, and her
the scope, content fall under the list of indications for spa
curative and rehabilitative care, respectively. under the various items that are
explicitly mentioned in the present empowering provision.
This fact was not contradicted either by the petitioner.
That conclusion, however, does not mean that the contested ordinance was issued in accordance with Article.
79 par. 3 of the Constitution. Beyond the limits set by law it is actually necessary
considered and any reservation in the law resulting from the constitutional
order, which prevents some legal relationships were the subject
subordinate legislation.

Reservation bill under Art. 31 of the Charter

25th The second sentence of Article. 31 of the Charter, citizens
under public insurance to free medical care and to medical aids under
conditions provided for by law. It is a fundamental right in the nature of social rights
, which means that the sense of its constitutional anchoring is not
delimitation of the area of ​​freedom of the individual to which public power is not
entitled to intervene, but rather guarantees that the state will be certain | || cases take proactive steps to ensure the conditions for a dignified life
and equal opportunities. Constitutionally guaranteed social rights does not immediately
in relation to individuals. Their content is the obligation of the state to
at the level of sub-constitutional law modified effective means of achieving
specific purpose, which forms the essence and significance (or essential content)
social rights, and subsequently through their bodies also || | realized. It's up to sub-constitutional legislation that actually
gives an answer to the question of what and under what circumstances an individual may
based on this fundamental right to seek, therefore, what are the limits of this fundamental right
. This conclusion also corresponds to the wording of Article. 41 paragraph. 1
Charter, which can be some of the fundamental rights contained in chapter four of the Charter
(ie. Economic, social and cultural rights), among them the rights
according to Article. 31, claimed only within the confines of the laws
implement these provisions. Other solutions in view of their general nature
not possible.

26th Under Article. 4 paragraph. 2 of the Charter indicates that limit fundamental rights and freedoms
may be under conditions laid down by the Charter and only

Law. The purpose thus formulated the exclusive mandate of the legislator is impossible
executive power "to implement their own ideas about how and how much
can restrict fundamental rights. The fact that this permission was granted
democratically legitimovanému Parliament, it should be ensured that the restriction of fundamental rights
occur after the parliamentary democratic discourse, and moreover gains
limitation of fundamental rights and the subsequent democratic
feedback. " (Wagner, E., Šimíček, V., Langášek, T. Pospíšil, I.
et al., Charter of Fundamental Rights and Freedoms. Commentary. Praha: Wolters Kluwer
Czech Republic, as, 2012, p. 128 ). Even if social rights such
just legislator called to determine what they can based on their individual
obtain. But its discretion in this respect is not boundless,
because of its limitations arise from a mere constitutional definition
social rights, which are defined by their nature and meaning, which
must be investigated by law (Art. 4, paragraph. 4 Charter).
This Act shall not right to deny or empty. Any interference with the very substance
social rights must be upheld under the principle of proportionality.

27th Reservation bill under Art. 4 paragraph. 2 of the Charter does not preclude the law made
definition of social justice, under which it may
individual claim, it has been adapted a regulatory
regulation under Art. 78 of the Constitution or based on statutory authorization pursuant to Art. 79
paragraph. 3 of the Constitution. However, that does not lead to a narrowing or
extension of its statutory regulation resulting content.
Constitutional Court in its judgment of 16 October 2001 sp. Nos. Pl. US 05/01 (N 149/24 SbNU
79; 410/2001 Coll.), Stated that this is a violation of the Act
reservation under Art. 4, paragraph. 1 and 2 of the Charter, if secondary legislation || | "describes the issues, modified the basic features already
law itself. a contrary conclusion, that would require the determination of any duties
directly and exclusively by law, would obviously lead to absurd consequences
, and the denial of secondary meaning ( and in some cases primary
) rulemaking because the conceptual part of every legal norm is
definition of rights and responsibilities mailing standards. " What is meant
those essential features, as well as the rate depends on the admissibility of such
concretization of the nature of the obligation in question, respectively.
its corresponding rights. Framers addition, in certain cases provided for determining the limits of fundamental rights
specific reservation Bill, which tightened up either given
general rules for adjusting the basic rights of a regulatory
regulation or modification of such even eliminated [cf.. eg.
Judgment dated July 23, 2013 sp. Nos. Pl. US 13/12 (259/2013 Sb.)
Paragraphs 27 and 28].

28th The essence of the constitutionally guaranteed right to free health care
obligation of the state to create a public health insurance system and its means of ensuring citizens
fair, hence the emergence of possible inequalities
exclusive means of access to adequate health care quality
[cf. . resolution dated May 5, 1999 sp. Nos. Pl. US 23/98 (33/14 U
SbNU 319)]. All insured on the basis of this system
should be entitled to such care and treatment, which correspond
objectively identified needs and requirements of appropriate standards and medical ethics [see.
Judgment of 4 June 2003 sp. Nos. Pl. US 14/02 (N 82/30 SbNU 263;
207/2003 Coll.), Finding sp. Nos. Pl. US 19/13, paragraph 52].

29th Determination of the conditions that define the content of the right to free health care
under public insurance reserves, the second sentence of Article.
31 of the Charter Act, as a result it is impossible for the legislature
for this purpose empowered the executive body to
issue sub-statutory legal regulation of lower legal force than the law. As the Constitutional Court
have repeatedly stated, the following conditions also include a range
health care, whose granting this right entitles, and the method of its provision
[see. Judgment dated July 10, 1996 sp. Nos. Pl.
US 35/95 (N 64/5 SbNU 487; 206/1996 Coll.), Judgment of 20 June 2013 sp.
Brand. Pl. US 36/11 (238/2013 Coll.)].

30th Spa treatment rehabilitation care is a form of health care
[§ 13 para. 2 point. a) of the Act on public health insurance], and
therefore entitled to its provision falls within the framework of the second sentence of Article. 31
Charter. And in her case, therefore, the answer to the question whether a citizen

Entitled to the provision of free of charge under the public health insurance
or whether it must pay himself, should give
after finding the relevant facts (in particular the health status of the insured)
directly implementing the law. According to Law no. 48/1997 Coll., On public
health insurance and amending and supplementing some related laws
, as amended, that care can be considered
paid service in the event that

- Medical condition of the insured and the purpose to be achieved by providing her
, therefore, after-care, prevention of disability and
of dependence or minimize the extent of disability, and is safe enough
insured [§ 13 . 1 point. a) § 33 para. 4]

- It is in line with current available knowledge of medical science [
§ 13 paragraph. 1 point. b)]

- There is evidence of its effectiveness, given the purpose of providing
[§ 13 para. 1 point. c)] and

- And it is a necessary part of the healing process (§ 33 para. 1)

Which are all conditions, the assessment depends on the professional
medical assessment and that from a practical standpoint
require further clarification. Reservation bill under Art. 31 of the Charter, of course, does not preclude
order to answer these secondary legislation define further
situation where you can treat those conditions to be met, and thereby enable
achieved between the parties related legal relationships, thus, patients
spa facilities and health insurance companies greater legal certainty regarding the scope
provided free spa treatment rehabilitation
care. The authorization pursuant to § 33 par. 2 of the Act on Public Health Insurance
however, goes further in some respects and empowers
Ministry of Health to establish a regulatory rule other conditions
realization of the constitutionally guaranteed social rights, which in comparison
the regularization of this range further narrowing. As a result
must be to make the spa treatment rehabilitation care is covered by public health insurance
, not only fulfilled the conditions laid down
law but also those beyond them, even on the basis and | || limits of statutory authorization, provided by decree.

31st This latter category conditions clearly falls restrictions
duration of the treatment and its possible extension or repetition
well as the limitations of the time period by which the patient must stay
board, respectively. until when must start any repeat stays.
These limits are adjusted separately for each subgroup and indicating their
consequence is that the treatment does not stay in a range that exceeds that
parameters covered by public health insurance. Unless otherwise while
decree, not a spa treatment rehabilitation care free of charge
provide above this range, regardless of the opinion of the attending physician or
review of compliance with the general legal conditions according to § 13
paragraph. 1 and § 33 para. 1 of the Act on public health insurance and amending and supplementing certain
related laws, as amended
regulations. The same result has also
'no initial or repeated treatment stay within a specified period.

32nd The said time limits can not clearly be regarded as a mere
instantiation conditions contained in § 13 para. 1 and § 33 para. 1 of the
public health insurance, as amended, which must be met
has if care be provided free of charge upon
public health insurance and which are purely technical in nature
criteria for the assessment is called the attending physician, if necessary. Also
review doctor. Their purpose is namely to achieve such regulation
care provision that will allow to find a balance between the requirements
both on the effectiveness of treatment, ie paid to stay in a spa
truly fulfill its anticipated medical function, secondly, on its || | effectiveness and economic viability, and with regard to other available treatment options and
total amount of funds in the health sector.
The Constitutional Court emphasizes that the interest in finding this balance is fully
legitimate. Its achievement requires a measure not only medical, but also
economic aspects, which must be recognized nature
political decision, under which the assessed effectiveness

Individual conceivable alternative solutions in order to select
one of them. It is therefore a different limits to the right to free health care on the basis
public health insurance (more specifically, the limits
prescribed for other purposes) than those arising from the abovementioned
provisions of Law no. 48/1997 Coll., as amended. To
their determination may therefore be subject, in accordance with the law in accordance with Article.
31 of the Charter on the basis of Parliament's decisions, which
contested ordinance does not respect.

33rd The fact that the Ministry of Health in determining the length of stay
treatment and its possible accession was made subject
political decisions regarding the extent provided free spa
care, vividly illustrated by the fact that the adoption of the contested ordinance was made without
any changes in legal regulations to substantially reduce the basic
duration of the treatment from 28 to 21 days. At the time of the decision of the Constitutional Court
in this case, the ministry considered again by returning to its original length
spa stay, while one of the
publicly presented the reasons for this step, stated that the spa is
important regional employer and leaving the state by
contested ordinance would escalate increasing unemployment (the government of Prime Minister Sobotka
adopt measures for rescuing the Czech spa industry, a press release of the Government
on 21 February 2014, published on www.vlada.cz). The announced change in payment terms
spa treatment rehabilitation care should therefore
reflect the purposes to be achieved through subordinate
rulemaking Act no. 48/1997 Coll., On public health insurance and
amending and supplementing certain related laws, as amended
legislation does not at all.

34th For these reasons, the Constitutional Court came to the conclusion that the contested decree provides
beyond the statutory limits on what can be claimed
fundamental right to free health care on the basis of public insurance, due
which is contrary to subject to the Act pursuant to Art. 31 of the Charter, while
mandate pursuant to Art. 79 par. 3 of the Constitution. Detected derogational reason is
It must be extended to the whole of its wording, as part of which was covered
can not be separated from the other parts of the ordinance without the
Constitutional Court changed the conditions for exercising the right to free | || health care.

35th In addition to the merits of the draft Constitutional Court found that the reason for
stay of execution of its judgment. In case of immediate abolition
contested decree would disappear contained therein economic regulation tools
providing spa treatment rehabilitation care, which could
unpredictable way reflected in the related requirements
resources from public health insurance and
extreme cases, lead also to destabilization in the health care sector. It would also significantly reduced
degree of legal certainty regarding the extent to which the provision of
care covered by public health insurance. In a situation where
legislator in § 33 para. 2 of the Act on Public Health Insurance
apparently expressed willingness to further such a regulation existed
Constitutional Court considers it desirable to create for him a new regulation || | adequate space. Suspension of operation until 31 December 2014
can be regarded as sufficient to enable Parliament to respond to the legal
conclusions set out in this judgment and, if appropriate standard deadlines
discuss a bill that would limit a fundamental right set
contested decree, if they continue these it found to be effective,
created in accordance with Art. 31 of the Charter of adequate legal basis.
This conclusion, of course, also applies to any other restrictions on the scope of the spa free of charge
medical rehabilitation care, which would exclude her
covered by public health insurance despite a
would do differently (according to expert medical assessment) have been met
general legal conditions according to § 13 para. 1 and § 33 para. 1 of Law no. 48/1997
Coll., as amended. If the legislature has yet come to the conclusion
about the need to redefine the mandate pursuant to § 33 para. 2 of the
public health insurance, it would be desirable that in order
avoid potential non-compliance with Art. 31 of the Charter demanded unless

Submitted together with a draft bill also proposed implementing regulations (§ 86
par. 4 Act no. 90/1995 Coll., On the Rules of Procedure of the Chamber of Deputies).

36th Suspension of operation can not be interpreted in the sense that during its lifetime
not given the mismatch contested decree with the constitutional order;
This fact has no influence on its further application, since its
exclusion, in terms of the State's obligation to fulfill the purpose
fundamental right to free medical care under Art. 31 of the Charter led to a situation which would
in its entirety for patients less favorable than it would be under current legislation
. The Constitutional Court is aware that this finding is
does not affect the validity of the enabling provisions of § 33 para. 2 of the
public health insurance, and therefore can not be ruled out that the Ministry of Health decree
occur before the date of enforcement of this
award, to change or replace the contested ordinance. To this end
may be substantial and legitimate reasons. If, however, to such
step occurred, it can not be assumed that the Constitutional Court would in any new
management decided to suspend the operation automatically in the same way.
Particular, would not have done in a situation where the new regulation
set limits that fundamental rights that are stricter than the previous.

37th Because due to the suspension of enforcement of this finding remains
contested decree effective during a transitional period, the Constitutional Court proceeded
also to discuss other objections petitioner, which were directed against
its content. Any finding another reason derogative would indeed
depending on its nature could lead to the fact that the delay
enforcement in the case of certain parts of the contested ordinance did not apply
[see. Judgment dated 19 April 2011 sp. Nos. Pl. US 53/10 (N 75/61 SbNU
137; 119/2011 Coll.)].


Objection mismatches § 2 para. 2 of the contested ordinance to ban
retroactivity and protection of legitimate expectations

38th The petitioner seeks the annulment of the transitional provisions of § 2 para. 2
contested ordinance, because it is considered as being in conflict with the prohibition
retroactivity and protection of legitimate expectations. That provision reads:

"Last therapeutic stay insured pursuant to an existing
legislation in the period from 1 October 2009 until the effective date of this decree
is considered the treatment stay
under this ordinance. Other therapeutic stay corresponding indication based on which
treatment stay was made under the first sentence, shall be deemed to stay
repeated by this decree. "

39th The cited provision establishes the rules for the classification of therapeutic
residence, which was held on the basis of a proposal drawn up under the force
previous Decree no. 58/1997 Coll., As a basic or repeated
treatment stay within the meaning of Part I, points 2 and
Annex 3 of the contested ordinance. This classification, which the previous ordinance did not know, is
relation to what is already undertaken visits desirable (or even necessary)
it allows depend deadline for getting repeat staying since last
therapeutic stay in the same indication regardless whether
took place under the previous or the contested decree.
Therefore can not be a situation where this residence disregarded, which for a large number of insured
who previously entered treatment stay, means that
not applicable to them on their terms impossible to meet the additional requirement that | || other treatment stay entered by the deadline for basic stay by
contested ordinance, typically unfolding since
determine the appropriate diagnosis, performing surgery or discontinuation of treatment in a medical facility
. It can therefore agree with the arguments of the Ministry of Health
that the absence of the transitional provisions would in many cases
meant restricting or even preventing access of patients to medical rehabilitation
spa care.

40th Prohibition of retroactivity (retroactivity) legal norms and the principle of legal certainty
conceptual part of the rule of law under Article.
1. 1 of the Constitution [see. Judgment dated June 8, 1995 sp. Ref. IV. US
215/94 (N 30/3 SbNU 227), Constitutional Court of the Czech and Slovak Federal Republic
dated December 10, 1992 sp. Nos. Pl.
US 78/92 (Judgment no. 15, Collection of Decisions of the Constitutional Court of Czechoslovakia, Prague:
Linde Praha, as, 2011, p. 92]. The Constitutional Court in its previous

Decisions defined the difference between the concepts of true and false retroactivity
and in general defined the conditions under which certain retroactivity
legal norms considered admissible. In the case of genuine retroactivity
has legal standard that a legal relationship before it becomes effective under the terms
which only subsequently established or establishes
change the legal relationships arising under the old legislation, even before the effect of the new
legislation. False retroactivity contrary, assumes that the new law
legal consequences for past does not constitute, in the past ensuing
fact, legally qualifies as a condition of future legal
aftermath modifies or future legal consequences established under previous regulations
[k cf. definition of these terms. in particular, the judgment of
fourth February 1997 sp. Nos. Pl. US 21/96 (N 13/7 SbNU 87; 63/1997 Coll.)
Judgment dated 12 March 2002 sp. Nos. Pl. US 33/01 (N 28/25 SbNU 215;
145/2002 Coll.) Or the judgment of 19 April 2011 sp. Nos. Pl. US 53/10 (N 75/61
SbNU 137; 119/2011 Coll.), Paragraphs 144-149; as well Tilsch, E. Civic
right. General part. Prague: Všehrd, 1925, pp. 72-79, Walk, A.
Basic Law intertemporal with respect to § 5 of the Civil Code. disciple. Brno:
Barvič & Novotny, 1928, p. 70].

41st The Constitutional Court states that § 2 para. 2 of the contested ordinance does not create or modify
retroactive legal relationships established in the past in connection with the provision
spa treatment rehabilitation care.
Legal fiction that has in the past carried out medical stay deemed essential
or repeated within the meaning of the new law, has legal significance only
future, and for assessing entitlement to free provision of care to
a proposal issued under the force of the contested ordinance.
For this reason, in the case of the provision of true retroactivity
quite obviously not.

42nd Regarding the retroactivity wrong, it should be noted that the transitional
provisions of § 2 para. 2 of the contested ordinance does not define the scope
spa treatment rehabilitation care to which insured persons are newly
entitled, which means that its based prevent or change
related legal relations. If we can therefore consider the effects of false
retroactivity, they can not connect with this provision, but with a new indicator
list as a whole or to individual therein
mentioned items, which led for a number of indications to
change (resp. for narrowing) the scope of covered care. Even in her case, however
petitioner's objection could not be regarded as justified.

43rd Unlike true retroactivity, that is assuming that is also associated
her intervention in the principle of trust in law, legal certainty
respectively. protection of acquired rights, fundamentally inadmissible [see. Finding sp. Ref.
Pl. US 21/96, judgment of 13 March 2001 sp. Nos. Pl. US 51/2000 (N
42/21 SbNU 369, 128/2001 Coll.), Judgment of 6 February 2007 sp. Nos. Pl.
US 38/06 (N 23/44 SbNU 279; 84/2007 Coll.)], It is possible in case of false retroactivity
conclude its general, though not without exception,
admissibility [cf.. Finding sp. Nos. Pl. US 53/10, paragraph 147, the judgment of
15th May 2012 sp. Nos. Pl. US 17/11 (N 102/65 SbNU 367; 220/2012 Coll.)
Paragraph 53]. Its compliance with the principle of protection of trust in law is a given
always when it is appropriate and necessary to achieve
law pursued objectives and the overall benchmarking "disappointed" trust and importance and urgency
reasons of legal changes will be preserved border capacity (cf.
decision of the Federal constitutional court dated July 7, 2010, file no. Ref. 2
BvL 14/02, paragraph 58). Constitutional Court's opinion, these conditions
undoubtedly true in the case of the contested ordinance.
Entitled to a spa treatment rehabilitation care to insured is clear from their
compulsory participation in public health insurance, and to what extent
always based on valid legislation. Individual policyholders therefore
must be aware that in the future may by a competent legislator
(either the legislature or the ministry) cause it to change, resulting in
would have no legitimate expectation as to the duration of the claim in | || unchanged or maintaining confidence in the current legislation.


Objection impermissible interference with the very substance of the rights under Art. 31 and Article
. 26 paragraph. 1 of the Charter

44th Other petitioner's objections can be summarized in the sense that

Significant reduction funded spa treatment rehabilitation care to which
was based on the contested ordinance, in economic terms
negative (or even existence) affects providers of spa treatments,
and thus the very possibility of realization of rights
to provide free health care. For this reason, and should be unacceptable manner
hit to the essential content of fundamental rights under Art. 26 and Art. 31

45th The Constitutional Court first observes that the contested ordinance brought
compared to the previous Decree no. 58/1997 Coll. In many ways the reduction
range of spa treatment rehabilitation care, which is paid for out of public health insurance
. A fundamental change can be described mainly
reduction in the basic length of a spa stay from 28 to 21 days, as well as restrictions
time periods within which it is possible to enter
repeated at a spa. Yet it must be emphasized that the changes
themselves do not constitute incompatibility with the right to free health care
within the meaning of Article. 31 of the Charter or the right to do business according to Art. 26 of the Charter.
These rights can be exercised only because within laws that
performed while the legislature is in these relatively broad
available for a specific definition of the content and manner of implementation, including the possibility
their changes (cf.. Decision Ref. Nos. Pl. US 19/13, paragraph 49).

46th In assessing whether the breach of that law, the Constitutional Court
standard applies so. Reasonableness test [cf. for this test.
judgment of 5 October 2006 sp. Nos. Pl. US 61/04 (N 181/43 SbNU 57; 16/2007 Coll.)
Judgment of 12 March 2008 sp. Nos. Pl. US 83/06 (N 55/48 SbNU 629;
116/2008 Coll.), Judgment of 24 April 2012 sp. Nos. Pl. US 54/10 (N
84/65 SbNU 121; 186/2012 Coll.), Paragraph 48, or finding sp. Nos. Pl. US 19/13,
paragraphs 50 and 51], in which the first two steps examining whether there has been
affront to their essence or essential content.
Grounds for such a finding in the present case, however, did not find the subject because
reducing the scope of spa treatment rehabilitation care that
paid from public health insurance, even impossible
business in the field of spa treatments nor makes access to her patients
unavailable. The fact that this change is expressed in relation to the individual
catering to varying degrees, at that conclusion
not change anything. No specific allegations to justify the opposite conclusion did not
petitioner. Contested decree also pursued the objective reassessment
extent provided free spa treatment rehabilitation care
light of current medical knowledge and practices and efficient use of finance
from health insurance funds, thus objective which can not be
terms listed fundamental rights be considered illegitimate
(albeit for such a reassessment can occur in the form of sub-regulation
without him were created the legal conditions), and
because it contained treatment can not be described as unreasonable, also passed | || in the third and fourth step of the test of reasonableness.

47th The legislature is within its sole discretion, to widen or narrow
extent to which citizens are entitled under public insurance
right to free health care within the meaning of Article. 31 of the Charter, including
spa treatment (cf. Finding sp. Nos. Pl. US 14/02), the same can also change
business conditions in its provision, which
result in limiting the scope of paid spa care undoubtedly occurred.
The law can not be interpreted in such a way that they result in no
maintaining the network of spa facilities in its current form and that procedure
time, there can be no substitution of spa care other professional
methods that prove to be in terms of the desired effect efficient.
It remains to add that there are grounds for such a change, and vice versa
for greater support of the spa facilities, which may include eg.
Tradition of spas, tourism development and employment in the region concerned
represents political question, why is it
appropriate answer in the first place, the Czech Parliament and Government, and not
Constitutional court, which is entitled to the following aspects
reconsider their decision.


48th In conclusion, the Constitutional Court notes that it conducted a review of content

Contested ordinance next question its possible effects of retroactive
(Art. 1, paragraph. 1 of the Constitution) is restricted to assessing its compliance with fundamental rights
according to Art. 26 and 31 of the Charter, exclusively in terms of || | petitioner raised general objections. Above conclusions can not be
interpreted as meaning that in the future exclude the possibility of successful
applying any other objections, which would be capable of justifying
its conflict with the latter provisions.

49th Given that the contested decree was issued in violation of Article.
79 par. 3 of the Constitution and Art. 31 of the Charter, the Constitutional Court granted pursuant to § 70 paragraph
. 1 of the Constitutional Court předmětnému proposal and decided that this decree cancels
expiry on 31 December 2014.
Chairman of the Constitutional Court

JUDr. Own hand

Dissenting opinions according to § 14 of Act no. 182/1993 Coll., On the Constitutional Court,
amended, took to the plenary decision
judge Stanislav Balik, Vladimir Kurka and Michael Židlická and its justification || | judge Jan Filip.

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