66/2010 Coll.
FINDINGS


Constitutional Court
On behalf of the Republic


Constitutional Court decided on 9 February 2010 Plenary composed
Stanislav Balik, Vlasta Formánková, Vojen Güttler, Pavel Holländer, Ivana Janu,
Vladimir Kurka, Dagmar Lastovecká, Jiri Mucha, Jan Musil, Jiri Nykodým , Paul
Rychetský, Miloslav Vyborny, Elizabeth Wagner and Michael Židlická
a petition from a group of deputies of the Parliament of the Czech Republic
seeking the annulment of the Ministry of health no. 618/2006 Coll
., which issued the Framework contracts, alternatively, to cancel its
individual provisions, with the participation of the Ministry of health as
party

Follows:

The petition is denied.
Reason


I.

Definition matter and recapitulation draft

First The Constitutional Court received a petition from a group of 45 deputies of the Chamber of Deputies of the Czech Parliament
(hereinafter "petitioner"), which requires
annulment of Ministry of Health no. 618/2006 Coll., Which issued
framework contract and that under Article. 87 paragraph. 1 point. b)
Constitution of the Czech Republic (hereinafter "Constitution") and § 64 para. 2 point. b) Law no.
182/1993 Coll., on the Constitutional Court, as amended, (hereinafter
"the Constitutional Court Act"). According to the petitioner, the contested Decree no. 618/2006 Coll
. issued contrary to the constitutional principle of government accountability
Parliament, esp. in relation to institute a confidence vote pursuant to Art. 68
paragraph. 3 and 4 of the Constitution, in accordance with the restrictions arising from the Constitution the government
which was provisionally charged with performing their functions until the appointment of a new government
[Art. 62 point. d) of the Constitution], and contrary to empowering
provisions of § 17 para. 3 of Law no. 48/1997 Coll., on public health
insurance and amending and supplementing some related laws, as amended
(hereinafter the "Act no. 48/1997 Coll.") to be
also violated the principle of legal certainty (Art. 1, paragraph. 1 of the Constitution) and
need for a statutory basis for acts of public authorities [Art. 2. 3
Constitution, Art. 2. 2 of the Charter of Fundamental Rights and Freedoms (hereinafter
"Charter")].

Second The petitioner in the first sequence of notes that Decree no. 618/2006 Coll
. has been prepared and issued at a time when the ministry was controlled
member of the government not having confidence in the Chamber of Deputies.
Points out that the government of Mirek Topolanek appointed on 4 September 2006
came forward under Art. 68 par. 3 of the Constitution of the Chamber of Deputies, which, however, when
vote on 3 October 2006 the trust received (Article . 68 para. 4 of the Constitution). In
being denied a vote of confidence this government Deputies
then the government decided on 11 October 2006 on the submission of resignation (Art. 73 para. 2
Constitution) and President of the Republic on the same day that accepted the resignation [Art. 62
point. a), Art. 73 par. 3 of the Constitution]. The president then simultaneously
commissioned this government under Article. 62 letters. d) of the Constitution
performing its functions temporarily until a new Government is appointed. The new government of then president
Republic appointed on 9 January 2007.

Third It further stresses that "the basic feature of the relationship legislative and the executive"
in the constitutional system of the Czech Republic as a democratic parliamentary republic
is a constitutional principle that is unconditionally "derives
duration of each government to the Chamber of Deputies" (Art. 73 para. 2 second sentence
Constitution), respectively. since it explicitly voiced confidence (Art. 73 para. 2 sentence
first Constitution). According to the petitioner as an expression of respect
accountability of government to the Chamber of Deputies (Art. 68 para. 1 of the Constitution). The above principle is
petitioner's opinion was irrelevant in a situation where the government is in a state of demise
while commission to carry out their functions
provisionally. Although the Constitution does not contain specific positive or negative
enumeration of powers "interim government" does not mean that the opinion
petitioner that such a government can exercise its powers in
same extent as if it were a government with a parliamentary confidence vote. This
authorized government must ensure "the preservation of elementary substance
way of democratic governance in a parliamentary republic," to be expressed
right word


Used shall provisionally in Art. 62 point. d) of the Constitution.

Fourth Its view that government in the above position should limit the performance of its functions
to the "minimum necessary", the petitioner supports
referring to the opinion of the legal doctrine (Pavlicek, V. - Hřebejk J. Constitution and constitutional order

Czech Republic, Part 1. Linde, Prague, 1998, p. 221 n.). Also
petitioner refers to an attempt to amend the draft Constitution of 1999
(Diet. Print no. 359), which, however, was not approved because the Senate rejected the proposal
. Among other things, the proposal should explicitly limit position
government in resignation and the status of the newly appointed government, whose application for a vote of confidence yet
Deputies acted.

Fifth The petitioner further states that the government of Mirek Topolanek, in the period from 4
September 2006 to 9 January 2007 did not set any limits, contrary to exercise its powers
treat completely without borders, which is reflected in the extent of their own
rulemaking governments and ministries in that period and
number of major bills submitted to the Chamber of Deputies. One of the documents
exceeded the constitutional limits of government without confidence
Chamber of Deputies is about to be contested decree no. 618/2006 Coll., For whose release
petitioner sees no urgent reason. Its aim should be
only "negate" the legal situation established by decree of the Ministry of Health
no. 290/2006 Coll., Which issued the decision of the Ministry of Health
on framework agreements pursuant to § 17 par. 3 of Law no. | || 48/1997 Coll., on public health insurance and amending and supplementing some related laws
, which was released the previous minister
MD. David Rath, who was - unlike the minister, MD. Tomas
Julínek - a member of the government, which enjoys the confidence of the Chamber of Deputies.

6th In the second sequence petitioner claims inconsistency contested decree no. 618/2006 Coll
. Act no. 48/1997 Coll. The petitioner states that
Ministry of Health is authorized pursuant to § 17 para. 3 fourth sentence
Law no. 48/1997. make a decision if the parties
conciliation failure to reach agreement on the content of the framework agreement within six months, or if
presented a framework agreement contravenes legislation
or public interest. This decision on framework agreements
Ministry made - according to the petitioner's view - subject to statutory conditions
on 7 June 2006 and announced it in the Bulletin of the Ministry of Health in the amount
5/2006 in the Binding measures under No. 1 . Text
individual framework contracts in the annexes to this decision
. On 7 June 2006, the Ministry of Health
Decree no. 290/2006 Coll., Which came into force and effect
day of its publication, ie. June 16, 2006. Also in the annexes to this decree contained a framework
contracts for health insurance companies and medical device
.

7th According to the petitioner's objections have been in this situation contested decree no. 618/2006 Coll
. issued in contravention of § 17 para. 3 of Law no. 48/1997
., since the framework agreement prepared contested decree
been the subject of conciliation between the representatives of associations of health insurance
group and representatives of the relevant contractual health | || equipment represented their interest groups, because this
conciliation convened by the conviction petitioner
6 December 2005 reached agreement without success and ended up applying powers
Ministry to take appropriate decisions.

8th The Ministry of Health therefore under these conditions was not authorized to release
Decree no. 618/2006 Coll., As the conciliation procedure initiated on
6th 12. 2005 not reached within six months to an agreement whereby the subsequent
"meetings of selected civil society representatives
health insurance companies" such an agreement could come as they are already on proper
conciliation not discussed. The "meeting", which was subsequently presented as
conciliation, moreover, not even some civic associations representing
on the basis of proxies larger quantities
invited medical facilities.

9th By issuing the contested decree no. 618/2006 Coll. so should be exposed to
"acquired rights" arising out of contracts for the provision of health care
concluded on the basis of framework contracts pursuant to Decree no. 290/2006 Coll.
After the publication of the earlier decree should be on the side of medical equipment
based public subjective right to health insurance companies to
concluding individual contracts in keeping with Decree no. 290/2006 Coll.
Which some hospitals use. § 3 of Decree no. 618/2006 Coll
., According to which contracts concluded under the existing

Legislation "brought into compliance with this Decree
31 December 2007", the appellant goes against the principle of legal certainty (Art. 1 paragraph.
1 of the Constitution) and legal limits of public authority (Art. 2 paragraph. 3 of the Constitution, Art. 2
paragraph. 2 of the Charter).

10th The petitioner therefore requests that the Constitutional Court ruled that "
Decree no. 618/2006 Coll., Which issued a framework contract is annulled
judgment is published in the Official Gazette. ".

II.

Observations of the parties and the opinion of the petitioner

11th The Constitutional Court asked for the views of the party, thus
Ministry of Health (hereinafter the "Ministry") as an institution
issued the contested regulation (§ 69 para. 1 first sentence of the Constitutional Court
).

12th The Ministry expressed the opinion that issuing the contested decree no. 618/2006 Coll
. not in conflict with the Constitution, while disagrees with
opinion that the issue of that regulation was not "necessary nor urgent
". Above all, points out that the previous Decree no. 290/2006 Coll
. It was issued without fulfilling the conditions foreseen by the provisions of § 17 paragraph
. 3 of Law no. 48/1997 Coll., Ie. Without the statutory period of 6 months
completed conciliation. The fact that the issuance of Decree No.
. 290/2006 Coll. there are no legal grounds because of unfinished
conciliation, it was mentioned in the opinion
Working Committee for Private Law of the Legislative Council and the Working Committee for Public Law
I Legislative Council. The aim of the ministry on the issue
Decree no. 618/2006 Coll. then to remedy this situation, in which a wide range
rights and obligations of the operators concerned was driving illegally issued
legislation and framework contracts adjusted to the finish
with the results of conciliation, in line with the real | || capabilities of the parties and the public health insurance system as
public interest.

13th The ministry also stated that he disagrees with the petitioner's claim
in whose opinion was conciliation to Decree no. 290/2006 Coll.
Convened on 6 December 2005 and within six months failed to lead
outcome of negotiations. In the opinion of the Ministry was to conciliation
framework contracts duly convened Association of health insurers, and it
only on day 3 January 2006. It concludes that the six-month period
provided by law before issuing Decree no. 290 / 2006 Sb. expired, and therefore no
fulfillment of legal facts with which Law no. 48/1997.
Connects emergence DOT authority to make decisions.

14th Negotiations on 6 December 2005, the Medical union club -
Czech Union of Physicians (hereinafter "LOK-SČL") convened "in the segments
outpatient specialists and general practitioners", the segment
outpatient specialists, participants agreed that this is not a
first round of conciliation, but only a preparatory meeting in
segment practitioners were summoned all providers and
convened meetings can not be considered proper first round of conciliation
under § 17 of the Act no. 48/1997 Coll. The ministry also
refers to the justification of the proposal to repeal Decree no. 290/2006 Coll.
Under file. Nos. Pl. US 52/06.

15th The petitioner claims that some associations were not about conciliation
management informed the ministry refers to the wording of § 17 para. 3 of Law No.
. 48/1997 Coll., Which speaks of "representatives of the relevant group
of contractual healthcare facilities represented their interest
associations" with no specific definition of what entities are.
Allegations of the petitioner nevyrozumění some specific subjects indicates
Ministry for the demonstrably false. From the attendance list
closing meeting of the conciliation of 21 June 2006 indicates that
representative of the Czech Medical Chamber - os (hereinafter "CLK, os"), Mgr.
B., And representatives of LOK-SCL MD. O., were up until the final moments
sharers. In the segment of general practitioners and general practitioners for children
ruler in the opinion of the ministry on the part of representatives of providers
unanimity. Due to the previous agreement, whose participants were also
CLK, axes, and LOK-SCL in accordance with which it was in case of conflict
decisive force mandates expressed full powers, and
due to the fact that an agreement The Association supported both practitioners and

Practicing paediatricians (more than 2000 full powers), and both
unions of health insurance is an articulate opposition to the aforementioned
entities disposing of about 200 full powers, to reach an agreement
irrelevant.

16th Finally, the Ministry states that § 3 of Decree no. 618/2006 Coll
. can not be interpreted in such a way that it should intervene directly in good faith
already acquired the rights, but "states the intention (goal), respectively.
declares the outcome of the conciliation adapt these treaties "legal framework
modified by Decree no. 618/2006 Coll. Earlier Decree no. 290/2006 Coll
. in the opinion of the Ministry voluntaristically completely adjusted subject
relations contrary to the real possibilities of the public health insurance
where these relationships can not practically change. The state Department
considers inconsistent with the public interest within the meaning of § 17 paragraph
. 3 of Law no. 48/1997. Due to that
Ministry suggested that the Constitutional Court dismissed the petition.

17th To its observations ministry joined "the minutes of the opening
participants of the joint meeting of the conciliation procedure on framework agreements
'of 3 1, 2006; "Minutes of the continuation of the initial joint
participants conciliation talks on framework contracts commenced on 3
1, 2006" dated 17. 1. 2006; "Companies from the second sequel
initial joint meeting participants conciliation on the framework
contracts launched on 3. 1. 2006 'dated 28. 2. 2006; "
Minutes of the final day of the joint meeting of participants in the conciliation proceedings
framework agreements" dated 21. 6. 2006; further attendance sheets as
attachments to those reports; further opinion of the Working Commission for the right to private
Government Legislative Council on the proposal of the Ministry of Health
, issuing a framework agreement dated 22 May 2006
opinion of the Working Committee for Public Law I Legislative Council
Government on the draft decree of the Ministry of health, which issued
framework agreement, dated May 15, 2006. Both positions are in relation to the draft
(future) Decree no. 290/2006 Coll. negative, for
lack of statutory authorization within the meaning of § 17 para. 3 of Law No.
. 48/1997. on the side of the ministry.

18th The petitioner in a written reply to the statement of the Ministry said that the proposal takes
because the government, respectively. Ministry had at the time
measure the application of public power for its part, the basic material
constitutional principle of provisional exercise of their functions, ie.
only necessary and urgent cases, and only for a period of time not exceeding significantly
function "Government in resignation." Within this limit
Ministry should wait for the decision on the proposal to repeal Decree no. 290/2006 Coll
. in proceedings before the Constitutional Court sp. Nos. Pl. US 52/06.
Petitioner also reiterates that the signing of new contracts under Decree no. 618/2006 Coll
. It was hit in the already good faith acquired rights on the part
individuals and legal entities - operators of private medical facilities
. Therefore, the Constitutional Court proposes to repeal the ordinance or the whole
least in those provisions, which are found to be inconsistent with the constitutional order
.

19th In the requested supplemental opinion (dated February 2, 2010)
Ministry of Health said that it is not and never has been a participant
conciliation procedure under § 17 para. 3, respectively. Sec. 2, considering
wording then in force, Law no. 48/1997 Coll., and therefore can not comment in detail
organizational issues conciliation.
On 14 December 2005, as shown by the attached copies, received
Department via e-mail (address mzdr@mzdr.cz)
invitation to "conciliation proceedings to framework contracts" from which content | || indicates that on the day of Jan. 3, 2006 from 9:00 pm to convene the conciliation talks
building OP VZP Prague, Na Perštýně regularity
sixth convocation and during the conciliation ministry concludes eg. a || | agenda, which included the attendance of participants accompanied
power of attorney, discussion and approval of the Rules of procedure
determine representatives for the negotiations and establish the terms
conciliation procedure, also attended by a representative of the Ministry for conciliation || | proceedings. He said the results of the conciliation, the Ministry

Submitted within the statutory period of six months. Appended to its observations
ministry in copies of the following documents (as requested by the judge
newsletters, ed., The Constitutional Court): "Minutes of conciliation to the Framework Agreement for
segment of healthcare facilities providing health care practitioners
and general practitioners for children and adolescents of
6th December 2005 ", signed by the chairman, MD. MK, confirmed by two verifiers
connected with the writing subject; "the minutes of the meeting, which
LOK SČL called for conciliation to the Framework Contract for medical
facilities providing specialized outpatient care and care for women
doctors dated December 6," signed by the presiding MD. JV and two verifiers
registration; further attendance list, in which the hands
crossed out the word "conciliation procedure on the framework agreement" and
replaced by the word "negotiations", further contain words' 6. 12. 2005 at 15 hours for
healthcare facilities providing outpatient care and specialized care
female physicians "(2 sheets); further attendance list, which is crossed out by hand
a header in the wording of "conciliation procedure on the framework agreement
6th 12. 2005 at 15 hours for health care facilities providing care
practitioners and general practitioners for children and adolescents' (3 sheets);
"The rules of procedure of conciliation on framework agreements" dated
23rd 11th, 1998 (3 sheets); further communication, MD. Beka George, president of the Association of Health Insurance
Czech Republic, which (in the appendix)
submit agreed framework contract to the Ministry, dated June 30, 2006
, stamped mailroom of the Ministry dated 30. 6. 2006;
and also the aforementioned invitation to the conciliation procedure.

III.

Other documents Control and the opinion of the petitioner

20th The Constitutional Court as well as the management sp. Nos. Pl. US 52/06 requested
statement


Amicorum curiae Czech Medical Chamber and the General Health Insurance Company, and the Confederation
health insurance Czech Republic, as convener
conciliation procedure.

21st Czech Medical Chamber (hereinafter "CLK") by President
MD. Milan Kubek on the draft stated that "it is possible to confirm that
conciliation on the framework agreement was convened and took place on 6
12, 2005, and this conciliation failed to lead to agreement and ended up applying powers
health Ministry to take appropriate
a decision that an agreement in conciliation replaced. ". CLK
further stated that according to its information after the issuance of Decree no. 290/2006 Coll.
Before issuing Decree no. 618/2006 Coll. A conciliation procedure did not take place.
CLK itself as a professional organization chartered by law no. 220/1991 Coll., On
Czech Medical Chamber, the Czech Dental Chamber and the Czech Pharmacists' Chamber
, as amended, conciliation participate.
At the same time, if CLK is known, in the case of the conciliation procedure is called
very opaque. Mandate Commission therefore can not be reliably verified
how many full powers have a particular association
health care providers, and the Ministry of health also
refuses to rectify the situation. In agreement with the petitioner consider
rule contained in § 3 of Decree no. 618/2006 Coll. an interference with rights already acquired and
private business relationships. CMC also recommended that the request
opinions of other civic associations of health care providers.

22nd General Health Insurance Company of the Czech Republic (hereinafter referred to as "NGA")
through the Director, MD. Pavel Horak, PhD., MBA, in contrast
its statement stressed that the "initiator" meetings convened on the 6th day of December 2005
LOK-SČL not be considered as initiating conciliation proceedings
framework contracts, as it found the majority of participants in the negotiations, and the negotiations
triggers the agreement that the proper conduct of the conciliation
will be convened at the earliest possible date, no later than January 2006,
form of an advertisement in some newspapers. Conciliation and
was launched on 3 January 2006, because on that day he called
Association of Health Insurance Czech Republic's opening session. To properly informed
health care providers was an invitation to this meeting
also published in Hospodářské noviny and Medical newspapers. Decree no.

290/2006 Coll. so the ministry issued on 7 June 2006, it was in
during conciliation, and therefore without legal authorization.
Legal uncertainties arising from this situation resulted in a proposal to the Constitutional Court to
Decree no. 290/2006 Coll. set aside, and also the issue of decree no. 618/2006 Coll
., who responded to the outcome of the conciliation, which
achieved in the law predicted the six-month period. In relation to
objection concerning the obligation to state the content of existing contracts in accordance with the contents
framework agreement NGA refers to the provisions of § 17 para. 3
Act no. 48/1997 Coll., Where the legislature has expressly stated that
contract concluded between "health insurance and health facilities are governed
framework contract". In summary, the VZP expressed objections
petitioner disapproval and advised to address this matter as well
Association of health insurers, who was the convener of conciliation and has
available evidence to support any allegations contained in the statement
VZP .

23rd The Constitutional Court, with regard to the Annex to the Ministry, from
Government Legislative Council further requested the opinion of the Working Committee for Public Law
I Legislative Council of the proposal for (future) Decree no. 618/2006 Coll
. dated December 18, 2006, which contains comments
legislative and technical nature.

24th The petitioner in written comments to the above facts
esp. to express


Amicorum curiae added that he agrees with the opinion of the CLK and disagrees with the opinion
VZP. He reiterated that before issuing the decree no. 618/2006 Coll.
a proper conciliation meeting has been held and a certain minister, MD. Tomas
Julínek and his deputies with certain politically inclined him
civic associations of health care providers can not be considered
proper conciliation. Also, the petitioner reiterates the condition
when this procedure ministries had different status of doctors who
conclude contracts at different times by different regulations. The provisions of §
3 of Decree no. 618/2006 Coll. considers continue to be inconsistent with Art. 1 and Art. 4
paragraph. 3 of the Charter of Fundamental Rights and Freedoms as a regulatory
regulation is an obligation in conflict with the agreements already concluded
between private parties.

25th Association of Health Insurance Czech Republic (hereinafter "CR CAP")
through Ing. Ladislav Friedrich, PhD., President, in his written observations
especially stated that the conciliation procedure on the framework contracts
standard was convened in accordance with law no. 48/1997.
day on January 3, 2006. The convener of conciliation was CR CAP. For
adequate awareness of health care providers has been
Invitation to the act published in Hospodářské noviny and
Medical newspapers. At the opening session, attended by representatives of all segments
providers of health care, there has been discussion and approval
procedural rules on conciliation procedures ( "the Rules of Procedure
conciliation on framework agreements"). In relation to negotiations
sitting of 6 December 2005 CAP states of the Czech Republic, the representatives of the relevant segments
unions and health insurance companies stated that
do not consider this meeting for initiating the conciliation procedure to framework contracts.
It was also agreed that proper conciliation for all segments will be convened just
CAP CR. CR CAP has on 30 November 2005
informed the President LOK-SCL does not consider that conciliation convened on the 6th day of December 2005
be valid because it was convened body which satisfies
statutory conditions for convening the Conciliation management. Furthermore, the CAP CR
states that the conciliation procedure initiated on January 3, 2006
arrive at an agreement in its entirety as amended framework agreements.
Results of conciliation on the framework contracts were sent to the Ministry of
within 6 months from the commencement of conciliation on the framework agreement for
individual segments. Finally, the Czech Republic joined CAP communication that pursuant to Decree No.
. 618/2006 Coll. as from 1 January 2007 concluded all health insurance companies
contractual relationships with healthcare facilities for providing
and payment of health care covered by public health insurance.

26th In relation to those allegations he sent the CAP, the Czech Constitutional Court in
copies of these documents (except those already established in the file

Department): letter MD. Beka George, president of CAP, the Czech Republic, dated
30th November 2005 addressed to the MD. Milan Kubek, Chairman
LOK-SCL which is expressed the view that the procedure LOK-SCL
contrary to law and that the convening of the conciliation procedure is invalid; advertisement "
Invitation to the conciliation talks on framework agreements" printed in
Hospodarske Noviny Wednesday, 14 December 2005; "Rules of Procedure for
conciliation on framework agreements" with effective date
28 February 2006; Dr. communication. Beka George, president of CAP, the Czech Republic, which (in the appendix)
presents an agreed framework contract for the pharmaceutical segment
health care, bears the stamp of the registry of the Ministry of Health dated 5
June 2006; Dr. letter. Vladimir Dryml, Deputy Minister of Health
, dated 3 July 2006 note CAP
Czech Ministry gives its opinion to "protest" in the matter of issuing the decree no. 290/2006 Coll .;
Dr. letter. Vladimir Dryml, Deputy Minister of Health
, dated July 4, 2006, which the CAP CR returned
sent to the framework agreement and sent document entitled "List of principals
with the number of mandates for negotiation proceedings to the values ​​of the point, the amount of payments
health care covered by public health insurance and regulatory
reduce the volume of health care provided for the year 2007 ", containing
table with" the names of the agents "and" votes ", undated, ref. no. POJ || | 2195/17, illegible signature; and the text "framework contracts for medical equipment
pharmaceutical care and health insurance," undated, each of the parties initialed
ten times (illegible).

IV.

Locus standi of the appellant's participation and intervention

27th The Constitutional Court finds that the petition was filed by an authorized entity
in accordance with § 64 para. 2 point. b) Law on the Constitutional Court, in this case
group of 45 deputies of the Parliament of the Czech Republic
. It is permissible petition (§ 66 of the Constitutional Court a contrario


).

28th For the party to annul statutes and other laws
considers the Constitutional Court Act in § 69 para. 1 of who
other legislation which is now being proposed gone.
In this case, the party Ministry of Health.

29th In accordance with § 69 para. 2 of the Constitutional Court, sent
Rapporteur proposal to the Ombudsman with an invitation to this
whether he was entering to intervene.
Public Defender responded within the statutory period, it does not enter into the proceedings.

30th For completeness, the Constitutional Court adds that the Law on the Constitutional Court of
terms of defining parties and interveners
built on the principle of legality, ie. The competent bodies
acquire such status directly from the law. Other bodies, the Constitutional Court can not admit
position interveners, which does not mean that within
evidence can not obtain statements of other entities.
These entities are also in the jurisprudence of the Constitutional Court termed

Amici curiae
. Like in factually related management sp. Nos. Pl. US 52/06
addressed the Constitutional Court of the Czech Medical Chamber and the General Health Insurance Company
due to the position of convener of conciliation in January 2006 further
Association of Health Insurance Czech Republic. Given
content of their expression by the Constitutional Court did not consider it necessary to establish
opinion of other players conciliation as proposed.

V.

Text contested decree no. 618/2006 Coll.

31st Ministry of Health Decree no. 618/2006 Coll., Which issued
framework agreement, dated December 20, 2006, with effect from 1
January 2007 was published in the Collection of Laws, Part 193, year || | 2006, which was distributed on 30 December 2006.

32nd Text contested decree is as follows:

"The Ministry of Health determined in accordance with § 17 para. 3 of Law no.
48/1997 Coll., On public health insurance and amending and supplementing
some related laws, as amended by Act no. 2/1998 Coll. Act
no. 117/2006 Coll., and Act no. 245/2006 Coll., (hereinafter the "Act")

§ 1

Framework contracts for health insurance ^ 1) (hereinafter referred to as "insurance") and
medical devices ^ 2) providing first medical practice

Doctors and general practitioners for children and adolescents,

Second ambulatory specialist care, with the exception of healthcare facilities providing physiotherapy
(expertise 902 and 918 ^ 3)) and occupational therapy, and
for healthcare facilities providing care gynecologists (expertise
603 and 604 ^ 3)) and clinical speech therapy,

Third outpatient care, dentistry

Fourth Health care in hospitals, specialized medical institutions,
special pediatric treatment centers and sanatoriums and long-term care
patients

Fifth diagnostic ambulatory care (expertise 222, 801, 802, 804, 805,
807, 809, 812-819, 822 and 823 ^ 3))

6th home health care, physical therapy (expertise 902 and 918 ^ 3))
occupational therapy, midwifery, and ortooptics pleoptic care

7th emergency medical services and transportation

8th pharmaceutical care,

9th spa treatment

Are listed in Annexes no. 1-9 hereof.

§ 2

Decree no. 290/2006 Coll., Which issued the decision of the Ministry of Health
on framework agreements pursuant to § 17 par. 3 of Law no.
48/1997 Coll., On Public Health Insurance and Amendments
certain related acts is hereby repealed.

§ 3

Contracts concluded under the existing legislation is brought into
accordance with this decree until 31 December 2007.

§ 4

This decree comes into force on 1 January 2007.
Minister
:

MD. Julínek vr. "

(NB .: The following Annex. 1-9, the text is not advisable due to the nature
objections to the text of this judgment take.)

VI. || |


Hearings 33rd Constitutional court turned to the appellant and the intervener
request to be notified whether they agree to waive a hearing.
the party expressed according to § 44 para. 2 of the Constitutional court
agreement. the petitioner stated that to waive a hearing disagrees
.

34th During the hearing before the Constitutional court on 9 February 2010
plaintiff's representative initially apologized the absence of Deputy MD.
Rath his departure on a trip abroad. Furthermore
summed up his argument into three areas. First, stressed that it considers constitutionally
nonconformist, if the government was merely interim steps that their
consequences go beyond the election period. He also said that after the publication of Decree no. 290/2006 Coll
. before issuing Decree no. 618/2006 Coll.
be done properly six conciliation, which did not happen.
Also questioned the conduct of the proceedings by the State Department before issuing the contested decree
considered conciliation. Finally, § 3 of the contested ordinance
plaintiff's representative expressed doubts about whether it is possible
"statutory regulation to save private entities [...] in order to
certain date changed the content of his contract.". Claimant's representative
considers it "an unprecedented intervention into private relations" with
medical facilities are also under pressure
health insurance. The solution should be a new situation conciliation from which it emerged
framework agreement that would be determinative for contractual relations
only after a period of time for which existing contracts were negotiated.

35th Finally, plaintiff's representative relayed the opinion of Deputy MD.
David Rath. In this part of the presentation the representative of the petitioner stated that
importance of the contractual relationship between the medical establishment and the insurance company has
in large part by the European Union character "permanent" unlimited.
The current system of choosing which doctor will care for insured
specific insurance company does not insured, but the "official health insurance
". After the expiry of the contractual relationship without insurance may
any reason to announce that it will no longer
A contract with a medical device. This was to be the main reason why former minister, MD.
David Rath wanted to secure a "permanent" contract. Any crash doctor
not be in the hands of health insurance companies, but in the hands of policyholders who
from the doctor left. Plaintiff's representative also stated that from personal experience
knows of cases where physicians are afraid to sue
health insurance, it would not be with him for the next contract period.
This principle was also included in the draft law initiated by
deputy MD. David Rath, however, that the veto of the President of the Republic
entered into force. In contrast, in the interest of lobby

Groups and former Minister MD. Tomas Julinek the system of health insurance
dominated by large chains, Representative conveyed the opinion of the Members
MD. David Rath. Finally, plaintiff's representative reiterated his proposal
unless decree abolished as a whole to be canceled separately
§ 3 of the Decree.

36th During the hearing, Additional Vice Elizabeth Wagner
asked clarifying question whether § 3
is the only difference between the two decrees. Plaintiff's representative stated that not a
the difference in the Annexes decrees that contain different regulation time
duration of the contract. Furthermore, Vice-President Elizabeth Wagner added
asked if health insurance companies have specific criteria
which they decided to conclude a contract with a particular doctor.
Representative of the petitioner referred to the provisions of Law no. 48/1997 Coll., Which govern
framework of criteria and selection procedures, but the results are not
for health insurance mandatory. To a query whether insurers comply
practice, said a representative of the petitioner's specific case of
2006, when it did not, in other cases, on the contrary, they respect.
Ministry representative commented that this issue concerns
Law no. 48/1997 Coll., Not now present Decree. The inquiry chairman Paul
Rychetský why the ministry has changed the system of contracts of indefinite period
for a fixed period, representative of the Ministry added that this is the
certain security controls insurance and rational
measures within cycles, which is repeated in the health system. To clarify
Vice Wagner, whether they were considered
political, representative of the Ministry said that if he is known as
not. The inquiry judge Jiri Nykodým in which segments were
agreement on the content of the framework agreements, representative of the Ministry said that in all
.

37th In its final recitation representative of the Ministry stated that
present regulation was adopted in the ordinary legislative process
Based on the results of conciliation. Among other things considered the previous
Decree no. 290/2006 Coll. as adopted in violation of legislative rules
government because there were contradictions expressed
two working committees of the Legislative Council. Constitutional Court suggested that the proposal to repeal the decree
rejected.

VII.

Relation to the draft sp. Nos. Pl. US 52/06

38th Before the substantive assessment of the draft Constitutional Court considers
appropriate to recall the substance of the proposal sp. Nos. Pl. US 52/06 to cancel
Decree no. 290/2006 Coll., As this proposal now present case
materially closely related and based largely on the same factual basis
. The petitioner and the Ministry in the present case was presented
mirrored arguments to the proceedings sp. Nos. Pl. US 52/06.
Current appellant essentially took over the legal conclusions of the Ministry of
management sp. Nos. Pl. US 52/06, and the ministry now (among other things)
presents the objections of senators from management sp. Nos. Pl. US 52/06.

39th The reason for the annulment of the decree no. 290/2006 Coll.
be lack legal authorization. The Ministry of the opinion of the petitioner's former
issued Decree no. 290/2006 Coll. the time has not yet been completed
conciliation procedure initiated on January 3, 2006 and has not expired (in vain)
six-month period envisaged provisions of § 17 para. 3 of Law no. 48/1997
. to ensure that the ministry "make a decision".

40th After the release now contested decree no. 618/2006 Coll.
Constitutional Court, under § 67 par. 1 of the Constitutional Court proceedings sp. Nos. Pl. US
52/06 on 16 January 2007 Resolution stopped (ed., Ed .:
resolution is available on http://nalus.usoud.cz) because the legislation, which revocation
proposed, expired (cf. § 2 of Decree no. 618/2006 Coll.).

VIII.
Substantive assessment


41st According to § 68 para. 2 of the Constitutional Court's task
Constitutional Court in proceedings to review other legislation judge
content to other legislation in terms of its compliance with the constitutional
laws and the laws and to determine whether was adopted and issued within the bounds
provided jurisdiction and in a constitutionally prescribed manner. Now
In the present case, the petitioner presents two groups of objections from
first of which leads to lack of constitutional authority and the other to

Lack of legal competence of the Ministry to issue the contested decree.

42nd In this case, the opposition coincide with the sequence of steps
steady RIP algorithm, based on which the Constitutional Court first examines
procedure and conditions for issuing the contested legal
prescription and then the content was consistent with the Constitution and laws.


VIII./a
The power to issue a decree under Art. 79 par. 3, in the light of Article. 62 letters.
D) of the Constitution

43rd The Constitutional Court in its earlier case [judgment dated 9 October 2003
sp. Ref. IV. US 150/01 (N 117/31 SbNU 57); Judgment dated 20 October 2004
sp. Nos. Pl. US 52/03 (N 152/35 SbNU 117; 568/2004 Coll.)] Explained
conceptual distinction between the powers and authority of a public authority. In the later
above findings stated that "[p] ravomocí state body must
understood as the exercise of state power in the relevant form (ie. In the form
regulatory or individual decision), while jurisdiction is
quite specific substantive definition of issues in the enforcement process
powers. From this point of view should be interpreted Art. 79 par. 3
Constitution, so that the power ministries and other administrative offices
or local government bodies, issue derived secondary legislation
regulations is based on already Art. 79 par. 3 of the Constitution. This is a legal norm
which, in general terms, establishes the authority of the executive to the creation
secondary legislation under the condition that the exercise of that authority is
instantiated in the Act in relation to a particular jurisdiction (for a law || | defined part of the exercise of state power). In other words, the authority of the executive
issue subordinate legal norms is established in the Constitution, not
statutory framework. The statutory authorization which complies with the requirements set out in Article
. 79 par. 3 of the Constitution, then the fulfillment of that authority in scope and content
(jurisdiction). ".

44th The Constitutional Court also specified the motives of the foregoing considerations:
"The reason for establishing this authority directly in the Constitution is the fact that
is a crucial question of separation of powers between the legislative and executive
in the area of ​​norm. Article. 79 par. 3 of the Constitution and on the one hand
creates the authority of the executive branch for derived norm creation, and thus actually
its limits in relation to the legislative branch, on the other hand
this provision must perceive it as also provides protection to the
executive from unconstitutional interference by the legislative branch. The ultimate
to result if the standard setting authority of the executive
were constituted only by the law, it would be at disposal of the legislature, which would
legislative power itself could intervene in the authority
powerful example that such authority executive
completely withdrawn. ". I later jurisprudence of the Constitutional Court in proceedings on the application for revocation
another law of implied concept is based (cf..
Example. Judgment dated 16 December 2008 sp. Nos. Pl. US 28/06, publ. Below no. 69/2009 Coll .;
judgment of 26 May 2009 sp. Nos. Pl. US 40/08, publ.
under no. 241/2009 Coll.).

45th In none of those cases, the Constitutional Court was confronted with a question of interpretation of Article
. 62 letters. d) of the Constitution in relation to the regulatory and executive competence
its previous conclusions formulated in relation to the acts of the executive
other constitutional aspects (esp. Art. 1, Art. 2. 3 of the Constitution, Article
. 2 Sec. 2 of the Charter of fundamental rights protection etc.). The provisions of Article 62
point. d) of the Constitution stipulates that the President of the Republic [...] Instructs
government whose resignation he accepted or which he recalled performing its functions



Provisionally until the appointment of a new government (italics Constitutional Court).
Draftsman of the interpretation of the term "provisionally" in the context of "the principles of parliamentarianism"
derives essentially correct constitutional limitations of government that does not enjoy the confidence of the Chamber of Deputies
respectively. restrictions ministries, which are managed
members of such governments.

46th Firstly, the Constitutional Court considers necessary to distinguish how much
petitioner's objections pertain to legislative activities of the government (Art. 78
Constitution) and to what extent the legislative activities of the ministries (Art. 79 par. 3 of the Constitution
) as the proposer of this distinction does not reflect deeper.
Government ministries and executive bodies are in fact - with regard to the treatment
constitutional powers to issue secondary legislation -
significantly different.

47th While the government is in Art. 78 of the Constitution empowered to issue orders to

Implementation of the law and within its limits, but without such an act
need explicit legal authorization, ministries and other administrative authorities and may
pursuant to Art. 79 par. 3 of the Constitution do so by law, in || | its limit and only if they are empowered to do so by law.

48th From this perspective, the Constitutional Court consistently distinguished position
governments on one side and on the other ministries, although both these institutions draw
powers to issue implementing regulations directly from the Constitution.
The Constitutional Court also emphasizes that under consideration in this case
is not primarily a question of (negative or positive)
determine the powers of government that ruled (and still has) no trust
Chamber of Deputies.

49th The position of the government itself, in this case the Constitutional Court expresses
only with regard to the specific objections of the petitioner. Above all
clear that such restrictions rulemaking does not derive from explicit text
Constitution, even in relation to the government or in relation to the ministry and
another administrative authority. Institut behalf of the Government "in the demise of the" provisional
performance of their duties pursuant to Art. 62 point. d) of the Constitution is based on the concept
having a permanent executive action when the rule of law is not
desirable that any power in the state has not been for some time
its supreme authority exercised.

50th The concept previously limited powers of the interim government typically
excluding certain acts from its competence, carries the risk that
rigid - or when determining the limits of relative (or indeterminate)
uncertain contrary - boundaries of such restrictions more difficult for proper functioning all power
performance, both in daily tasks, and in the fulfillment of international obligations
, esp. those arising from EU membership
and other international organizations. This danger becomes more
importance in cases where the appointment of a provisional government
occur frequently or where such temporary body is forced to work longer hours.

51st In contrast, the opposite can not ignore the arguments that rely primarily on
meaningful government accountability Deputies
(Art. 68 para. 1 of the Constitution), manifested among other things in the institute
vote of "confidence" (Art. 68 par. 3 of the Constitution). It is obvious that the government compared with full confidence
Deputies, there is the question of legitimacy and political authority
interim government after the failure to obtain the trust (Art. 68 par. 3 of the Constitution)
but also the government, which was later pronounced distrust (Art. 72 para. 1 of the Constitution
) in different positions. Governments in both situations the bear
full constitutional responsibilities, and do not exhibit has been a major sanction by
Chamber of Deputies, which is just (another) censure.
Blowout is therefore one of the main instruments of the system of checks and balances
which ensures balanced relations between the powers and their mutual
control. The political mandate of the government is challenged because
in either of the above cases can not be reliably talk about
reflection of the political interests of the majority of voters (in the shape of the distribution
political forces in the Chamber of Deputies). Lastly, you can also argue
concerns from targeted steps the provisional government, which if
misuse of powers could lead to an extension of his own existence.

52nd


Pro futuro Constitutional Court notes, however in this case is an inference
responding primarily to the wider petitioner's objections that the general considerations outlined above
regarding the status of the interim government itself is necessarily constitutionally
limiting factor that must be reflected in the restrictive approach to
performance of both powers to issue regulations pursuant to Art. 78 of the Constitution, so when
other acts of government, particularly if they carry substantial and irreversible consequences
.

53rd However, specific and generally applicable limitations arising
government and ministries on behalf pursuant to Art. 62 point. d) of the Constitution (more specifically, their relationship
responsibility to the Chamber of Deputies) can not be determined definitively
validity on the basis of abstract (up speculative) considerations, but only
taking into account the actual circumstances of the present case, the Constitutional Court
in the future, and that the specific power relations between the executive and legislative
. The conclusions of the Constitutional Court will always have to respond to the diversity
(unpredictability)
legal and legal-political acts of the executive authorities.

54th In this context, the Constitutional Court can not overlook the fact that the character

Hearing organs of executive power, while of course any self-control
state power is desired, it is also given varying degrees of legal and
political culture in the state and society, which can result in significantly
eg. In eventuality of political self-restraint of government, which itself
reflects the political balance of power, respectively. its de facto legitimacy.
Nor did the government with full confidence that the Chamber of Deputies can not be
its powers to issue regulations to dispose arbitrarily, but only in keeping
conducted by the Act, respectively. Constitution. Neither the authorization of the Ministry pursuant to Art. 79
paragraph. 3 of the Constitution must not be misused for other purposes than the constitution and law
assume, especially the constitutional level to any regulatory
competition between the executive and legislative powers, in practical terms to
political struggle.

55th In assessing the legitimacy and limits of constitutional authority in a particular case
they will also play an important role gradually formed
constitutional conventions. Anyway, before long practiced constitutional procedure, which corresponds
of values ​​and institutional consensus
constitutional bodies and reaffirms the interpretation of certain provisions of the Constitution
be considered a constitutional convention, which could be an interim action
government measure. This, however, now the facts that have been presented to the Constitutional Court
sufficiently specifically entails.

56th The fact that relations between the Interim Government and the Chamber of Deputies
been controlled sufficiently specifically articulated constitutional rules,
indication nor historical attempt Czech constitutional framers, who anchored
specific restrictions for provisional accreditation government and members of the government
directed Ministry considered. Relevant draft amendment to the Constitution, including
amending its Articles. 75, according to which such a government could be "only
measures that can not be delayed," was not accepted (Parliamentary Press no.
359 1999; artwork approved by the Chamber of Deputies on 28 January 2000
rejected by the Senate on 29 March 2001).

57th Despite the above finding that there is a constitutionally
limiting factors in relation to the government provisionally authorized pursuant to Art. 62 point. d)
Constitution is not a solution to the government crisis transferring political control
interim executive to the Constitutional Court, whose jurisdiction esp. in relation to the review of the rulemaking
executives, possibly in relation to the scope of powers
state bodies, they are in exhaustively defined by the constitution.
Mode interim government puts the responsibility on itself primarily Chamber of Deputies
which is thus given (time) space to create sufficient political
majority for the vote of confidence to a new stable government.
Performance of the parliamentary mandate is not available in any deputy or
political parties, but must be directed towards the fulfillment of the Constitution, respectively.
anticipated procedures. The Constitutional Court in a similar context
speaks about "constitutional pressure on the connection censure (resp.
Refusal to give confidence) with awareness of the constitutional consequences in the absence of new
parliamentary majority capable of forming a government" (judgment of 10 . September 2009
sp. Nos. Pl. US 27/09, publ. as no. 318/2009 Coll.).

'58. Even during the process by the President pursuant to Art. 62 point. d) of the Constitution are not affected
- can not be overlooked - the remaining control mechanisms
which is subordinated to the Minister of the Constitution. "The bearer of constitutional political
responsibility for the actions of the competent minister, who is in
this respect the common means of parliamentary democracy, such as interpellation
(Art. 53 paragraph. 1, 2 of the Constitution), the right to quote parliamentary
Commons and its institutions or Commission of inquiry (Art. 30, Art. 38 par. 2 of the Constitution
). Another control mechanism, which is monitored
activities and called for a constitutional responsibility of the Minister, is the possibility of his removal from office
. According to Art. 74 of the Constitution, this supervisory mechanism for the
Prime Minister (proposal to recall a minister) and President of the Republic
(the recall itself), "as stated by the Constitutional Court in judgment of 13 September 1994
sp. Nos. Pl. US 9/94 (N 40/2 SbNU 7; 207/1994 Sb.).

59th Particularly in relation to the regulatory powers of the Ministry of controlled
minister who is a member of the Government authorized pursuant to Art. 62 point. d) of the Constitution, the Constitutional Court
further states that the determining aspects of the assessment of the case is
construction of the provision of Article. 79 par. 3 of the Constitution which has a different purpose than

General government authorization pursuant to Art. 78 of the Constitution, and the character of statutory
enabling standards (Part VIII./b judgment).

60th In the context now under consideration we must not ignore the specifics
subordinate law-making institutions of central government, which has already
itself as restrictions in relation to the authorization act:

A) Through the terms of statutory authorization (Art. 79 par. 3 of the Constitution)
the existence or absence of such authorization is always available
legislator. In this respect - with respect to balancing relations between
executive and legislative powers - there is an urgent need to infer
specific constitutional constraints, the Ministry or other administrative body for
their sub-statutory norms in the constitutional order, if the decision to || | existence or absence of a specific mandate always depends on the will of the legislature
. It is only Parliament that in a particular case finds
necessity, eventually. suitability issue sub-statutory regulation for proper
implement the Act. Return or the taking of such authority does not follow
(no monitor) objectives other than the proper implementation of the law, and this single
general objective is by definition independent constitutional
(political) relations between the Parliament and the Government.
Statutory authorization according to their specific formulation contains more or less practical obligation
authorized body to issue implementing regulations (Part VIII./b finding) that
law could produce the intended effects.

B) the legally defined specialty such rulemaking suggests different
functional approach [see. also partial definition of the scope of ministries compared
'management, control and unifying "role of the government according to law no. 2/1969
Coll., on establishment of ministries and other central government authorities
Czech Republic, as amended (hereinafter the "competence
Act")]. While respecting the separation of powers (
restrictive interpretation of legal authorization) and the principle of legal certainty is (and should be) authorized for issuance
legislation so precise and specific in scope,
content and purpose of the ministry or another administrative body is unable to
deviate from the statutory limits and claim such.
its own legal (political) will of defiance Parliament. Such a requirement
statutory mandate that has defined as precisely as possible the content, purpose and scope
modifications can be inferred from the principle of predictability of law based on Art. 1, paragraph. 1
Constitution [cf.. eg. the judgment of 12 March 2008 sp. Nos. Pl. US 83/06
(N 55/48 SbNU 629; 116/2008 Coll.)]. Ignoring any of the three components enabling
standards leads to the conclusion about the lack of statutory authorization to issue implementing regulations
.

C) Ministries and other administrative authorities do not have direct financial ties -
unlike government - the political will (confidence), the Chamber of Deputies.
The Minister is accountable to the Government, the Chamber of Deputies only vicariously.
For a fundamentally different position of the government on one side and
ministries and other administrative authorities on the other hand discussed the issue of subordinate
rulemaking evidenced by the systematics of the Constitution, respectively.
inclusion of ministries in relation to the constitutional mandate in Article. 79 par. 3 of the Constitution on the same level as
"other administrative authorities." If the existence of a government crisis followed the procedure
President under Art. 62 point. d) of the Constitution should mean
constitutional limitations regulatory powers under Art. 79 par. 3 of the Constitution, from which
constitutional basis of its powers derive from the abovementioned authorities,
would have to be (hypothetically) these restrictions affect all these | || authorities, by virtue of the authority to issue regulations on the status
identical. Under the same (constitutional) conditions such as ministries while
subordinate legislation issued and listed "other administrative authorities", respectively.
"Central government authorities" (§ 2 para. 1 Competence Act).
Appointment of the Chairman of such an office is the president of a government proposal (
Czech Statistical Office, Office for the Protection of Competition) or the government itself
(§ 2 para. 3 Competence Act) without further interference
Chamber of Deputies. Neither Regulatory power of the central organs of state administration
at ministerial level in the Constitution is not conditional on a government
which won parliamentary confidence vote pursuant to Art. 68 par. 3 of the Constitution. That
while maintaining the standard restrictions that are imposed
sub-statutory norms.


61st From the above, the Constitutional Court concludes that the constitutionally enshrined powers
Ministry to issue subordinate legislation pursuant to Art.
79 par. 3 of the Constitution is not


Ex constitutione particularly restricted - in terms of scope and content - in a situation where
Ministry is controlled by the minister, who is a member of the Government
provisionally authorized to exercise its functions pursuant to Art. 62 point. d) of the Constitution.
Assessment for each individual case (normative act) but
always strictly apply the general requirements for the delegation norm creation,
which must move only in narrowly interpreted within
content, scope and - especially - the purpose of enabling standards.
This procedure can eliminate such normative acts of the Ministry, which would track
purpose other than the proper implementation of the law and the legislation would, for example.
Included such (political) content that would be contrary to the constitutional sanction
the purpose of the previous no confidence (Art. 68 par. 3 of the Constitution)
respectively. censure (Art. 72 para. 1 of the Constitution), then such
provisionally appointed government. These facts are reflected in the
reference criteria for the eventual proceedings before the Constitutional Court, whose
case law may in the future no doubt in specific cases
contribute to limiting provisionally authorized governments.


VIII./b
Statutory authorization under the provisions of § 17 para. 3 of Law no. 48/1997.

62nd The second set of caveats petitioner refers to the alleged absence of statutory authorization
on the part of the Ministry, respectively. exceeding the mandate arising from
provisions of § 17 para. 3 of Law no. 48/1997.

63rd In its case law, the Constitutional Court consistently confirms that implementing legislation is
Art. 79 par. 3 of the Constitution shall only be bound to such detailed
treatment, which moves "on the basis and within the law" [cf.
judgment of 11 October 1995, file. Nos. Pl. ZS 3/95 (N 59/4 SbNU 91; 265/1995 Coll.)].
Also in Judgment file. Nos. Pl. US 52/03 based on the principle
demarcation of the executive and legislative powers of the Constitutional Court said that
concepts contained in the Constitution, however, reckons that the legislature in the form of ordinary laws that
(Article. 79 par. 3 Constitution-based)
jurisdiction does not, the Constitution of the only gives the possibility to empower the executive branch in
particular case to its implementation in the form of specific jurisdiction. This
competence (in terms of substantive definition of issues in the process of exercising the powers
) then particular executive body shall implement
on the basis and within the law which authorized it to create a secondary legal norms
seized.

64th In relation to the review of the constitutionality of derived norm creation
executive on the basis of statutory authorization by the Constitutional Court also defined
practical aspects of the review [see. Judgment dated 14 February 2001 sp. Ref.
Pl. US 45/2000 (N 30/21 SbNU 261; 96/2001 Coll.); Judgment dated 16 October 2001
sp. Nos. Pl. US 05/01 (N 149/24 SbNU 79; 410/2001 Coll.) And others.]
*
Regulation must be issued by an authorized entity,

* Regulation can not interfere in matters reserved to the law,

* Must be clear intent of the legislature for regulation beyond the statutory standard (
must therefore be opened for the sphere of space).

65th In the first two points of the petitioner Decree no. 618/2006 Coll
. nerozporuje, argues, however, that the conditions
statutory authorization for the issuance of sub-regulation ( 'clear intent of the legislature
"according to the aforementioned terminology).

66th The wording of the enabling provisions of § 17 para. 3 of Law no. 48/1997.
is as follows:

"§ 17

[...]

(3) contract under paragraph 1 concluded between health insurers and health facilities
is governed by a framework contract, which is the result || | conciliation between the representatives of associations of health insurance companies and representatives of relevant
group contractual health care facilities
represented by their interest groups. Individual
framework contracts are submitted to the Ministry of health, which evaluates them
terms of compliance with laws and the public interest in ensuring
quality and accessibility of health care, the functioning of the health system and its
stability within the financial possibilities of the system of public health insurance
(hereinafter the "public interest"), and then issues them as
notice. If before the expiration of the contract is not concluded
new contract, the contract will be extended until such time as a

Signed a new framework agreement. If conciliation between the parties
no agreement on the content of the framework agreement within six months, or if
presented a framework agreement is contrary to laws or public
interest, is entitled to make a decision Ministry of Health.
Framework contract always contains a provision regarding the time efficiency
manner and because of the termination of the contract pursuant to paragraph 1 that the contract is
be terminated on January 1 of the following year, taking notice
period must be at least six months. The notice period shall not apply in cases
that due to the severe circumstances not reasonably be expected
further performance of the contract. Furthermore, the framework agreement must contain a way
implementation of reimbursement provided health care, rights and obligations of participants
contract pursuant to paragraph 1, if they are not fixed by law,
general conditions of quality and efficiency of health care delivery
conditions necessary for the contract referred to in paragraph 1, the control mechanism
care quality and accuracy of the amounts charged,
and the obligation of mutual communication of data necessary to monitor the implementation
contract for the provision of health care, the manner and reasons for termination of the contract by
paragraph 1, the provisions on arbitration.

[...]. "

67th From this it follows, therefore, that the ministry is legally empowered to act in two cases
:

1) if the result of the conciliation framework Agreement, will examine this from the perspective of its
accordance with the law and the public interest in
ensure the quality and accessibility of health care system operation
health and stability within the financial system capability
public health insurance then declare such decree or

2) if the parties to the conciliation failure to reach agreement on the content
framework agreement within six months or if the presented framework agreement
contradicts the legislation or public interest, is entitled "
make a decision. "

68th central principle referred mandate sees the Constitutional court
legislature enshrined the priority of the agreement, which should be the result
conciliation procedure. the purpose of conciliation is to reach a common
procedure agreement on the content of the framework agreements, rather than vainly exhausted
deadline of six months to allow for further progress Ministry, whose mandate started direct
merely subsidiary. With regard to this preferred
purpose it is to be interpreted as other terms and conditions of the conciliation proceedings
respectively. interpret itself enabling standard. Contrary to this
priority would be eg. A determination of conditions for progress
conciliation that would objectively and realistically impossible
reach any consensus as foreseen by the law (eg. By setting unachievable
procedural rules of conciliation,
unconditional unanimity requirement and all such.
procedural vote, etc.).

69th In the case now under consideration ministry based on the fulfillment of the conditions under
point 1), while he maintains that before issuing the contested ordinance
no. 618/2006 Coll. to the appropriate (new) conciliation occurred,
there is therefore not result in the form of a framework agreement, because only
conciliation by issuing the contested decree preceded
ended with the expiry of six months.

70th The question referred to the Constitutional Court first notes that in this case the petitioner
- having regard to the nature of the opposition - faced
contradictory factual assertions that are based in the disputed
start and during the conciliation procedure under § 17 paragraph. 3 of Law no. 48/1997.
In relation to finding a fulfillment of § 17 para. 3 of Law no. 48/1997.
May be in light of the petitioner's objections subject to review only
assess whether the presented framework agreement "
result of the conciliation proceedings" and that this "outcome of the conciliation," the ministry
submitted within the statutory period of six months. These facts appear to be
crucial for the arguments of the petitioner. Only when the following conditions are
enabling clause "activated" in favor
Ministry, which also presented a framework contract substantively assess
(according to the criteria set out in § 17 par. 3 of Law no. 48/1997). and (
own without substantive amendment) are prepared for publication.


71st Constitutional Court has received various materials that have no factual
document the course of conciliation, which the Constitutional Court reviewed the
extent needed to determine whether the condition for issuing
sub-statutory regulation by the Ministry (conditional authorization).
Especially in relation to the present case states that the "Minutes of the inaugural
participants of the joint meeting of the conciliation procedure on framework agreements
" dated January 3, 2006 clearly implies that the conciliation convened
CAP was the Czech Republic, with a majority of representatives
health insurers and health care providers clearly expressed the belief that
this is the first round of negotiations under the conciliation procedure.
Objection of some participants of the meeting that the first negotiation "
segment outpatient specialty care and general practitioners' was already on 6 December 2005
was raised at the meeting, but the majority of those present were not accepted
because according to them, should be a preparatory meeting.
Good faith of participants in the soundness of conciliation, which are participants, and
common approach objectively leading to the fulfillment of the intended
conciliation are evident from the minutes of meeting others including
hearing final (17th January 2006, February 28, 2006, June 21, 2006).
The Constitutional Court notes that the minutes of the flow instance.
Well as other related issues, eg. Whether participants conciliation
can create rules of procedure and whether it is possible for approval of proposals mostly or only
unanimously (vote consensus). These internal issues
organization of conciliation, the Constitutional Court did not intend to express, therefore
least so far as the players maintained the legislature intended
essence of conciliation, which is the creation of the Rules or (in some polls
) Applying the principle of majority approval (or.
a rational determination of weights voice) not jam. These principles are
is undoubtedly reflected in many other provisions across
Czech law, including the rules of procedure and rules.

72nd That conclusion initiating the conciliation procedure on 3 January 2006
then further supported also by other deeds, especially the steps that led to the invitation
participants on January 3, 2006 (one of whom is also an invitation to the Ministry
and advertisements published in Hospodářské noviny).
Also, even on the "conduct", which was held on 6 December 2005, the majority
zhastníků agreed that this is not the initiation
conciliation, and for specific reasons. This view, as follows
of the relevant registration, expressed "CAP CR Open Union of Health Insurance
CR, CR SPL, SPLDD Republic, APRIMED, PRIVALAB". The opposite view, namely that
conciliation proceedings were properly initiated, advocated only "LOK SCL
CLK - os". From the minutes dated 6 December 2005 acquired the hearing
"for healthcare facilities providing outpatient specialized care and care
female doctors' conclusion follows similar. Of the entries in the summary
Constitutional Court concluded that the longer the negotiations on 6 December 2005
these meetings were usually present considered substandard
"initiation" and therefore not a good (initial) Conciliation | || management, specifically with reference to the fear of challenging the "ordinary legislative procedure
".

73rd The Constitutional Court also notes that even if (hypothetically)
majority of participants in the conciliation came to a subjective conclusion that
conciliation proceedings have been launched on 6 December 2005, did not meet
such a procedure - we mean follow-ministry, which issued
Decree no. 290/2006 Coll. - Objectively the meaning of the enabling provisions of §
17 paragraph. 3 fourth sentence of Act no. 48/1997 Coll., As the legislature apparently assumed
equal status of all participants in the conciliation procedure, and therefore
possibility of their participation in the conciliation throughout (maximum)
six months. Such an interpretation of the conditions to start
conciliation proceedings, which would trigger the course of the proceedings and thus the six-month period
act only one segment of health care providers (resp.
Mere formal act of "convening" conciliation without hearing it
accompanied by the appropriate content), would establish a single inequality

Providers, because - as it would have been in this case - would
other parties to the conciliation procedure had to reach agreement
statutory period is shortened by nearly a month, but theoretically a period of more
any longer ( because, in short, the other "segments" would be to control
were invited up during). Such a concept does not indicate the legal structure priority
agreement of the parties, as unpredictable
actual manipulation of the length of conciliation may undoubtedly have an impact on
course of the conciliation proceedings, including the risk that under more time pressure
law expected result It will not be achieved at all.

74th In these proceedings, the Constitutional Court has already seek to evaluate progress
Ministry, which has 7 June 2006 issued Decree no. 290/2006 Coll
. But it can not be overlooked that before issuing Treasury should
available for (among other things) a negative opinion of the two working committees
Government Legislative Council, which drew attention to the work of "Unfinished
conciliation". It (could and should have) also
continuous information on the development and management of wholly majority opinion of participants
conciliation. Only the edge - with regard to the formulation
Subsidiary authorization pursuant to § 17 para. 3 of Law no. 48/1997. -
Recalls the Constitutional Court's conclusions stated in its judgment. Nos. Pl. US
24/99 dated 23 May 2000 (N 73/18 SbNU 135; 167/2000 Coll.), Which
address the discrepancy between the contents of general government mandate in Article. 78 of the Constitution and
specific empowering provision § 17 par. 5 of Law no. 48/1997
. (As then in force), which called on the government "to decide"
(under certain circumstances) on the values ​​of point and the level of healthcare payments
covered by health insurance.

75th From the Ministry sent a communication CAP president of the Czech Republic dated 30 June 2006
, especially from the mailroom stamp ministry further showed that
outcome of the conciliation was within six months from the commencement of conciliation
(January 3, 2006 ) submitted to the Ministry on 30
June 2006 respectively. in relation to the framework agreement on pharmaceutical
health care has on 5 June 2006, the last day of the period determined by the number of months
fell on July 3, 2006. Dating
respective protocols on the outcome of conciliation (range 1 June to 29 June 2006
) logically precedes the date of receipt of their ministry. So
condition providing for the submission of the outcome of the conciliation
ministry within six months was met.

76th Before issuing the contested decree no. 618/2006 Coll. therefore
ministry available at least within six months presented
outcome of the conciliation procedure opened on 3 January 2006, including
related protocols and the final text of the framework agreements, the relevant records
resulting information during the conciliation management, including
date of initiation, as well as the opinions
working commissions of the legislative Council as the draft decree no. 290/2006 Coll., and the
proposal (future) Decree no. 618/2006 Coll. These facts (except
else) Ministry reviewed in relation to the fulfillment of the conditions laid
authorizing provision. The conclusion that the conciliation procedure resulted in consensus on the text
framework agreements, which were submitted to the ministry, is completely
clinging, and the Constitutional Court, therefore it changes nothing.

77th The text of the law itself and the purpose of conciliation, not
constructed in any way as a facultative Institute, concludes
Constitutional Court, the body empowered, while meeting other statutory
assumptions, it has an obligation to respect the outcome of the conciliation.
Also, the assumption of rational economic and legislator
can be inferred that to enabling standards (§ 17 par. 3, second sentence of Law no. 48/1997
.) Will be inserted relatively complex institute conciliation proceedings
which took place over several months, for their own sake, therefore
such a manner that the ministry (now despite the text of the standard)
had the opportunity to considerations of whether authorization to issue an agreed framework agreements
in the ordinance exploits, or not. The theoretical possibility of this reasoning would
conciliation made only advisory institute and wiped it
differences between the two standards empowering situation reflected in the procedures under
points 1) and 2) (above).

78th Legislative technique EMPOWERING standards undoubtedly permits

Legislators clearly state whether the standard contains an obligation or a mere possibility
authorized to issue an implementing regulation [ "Competence rule specifies
(...) whether the authorized agency is obliged to publish under specified conditions
legislative acts, or if he only allows "- see
Weinberger, O. Norma and institutions. Introduction to the theory of law.
Masaryk University, Brno, 1995, p. 77]. The Constitutional Court therefore refers
of the foregoing considerations and the mandatory nature of the provisions of § 17 para. 3 sentence
second Act no. 48/1997 Coll., Under which each ministry
framework contract "[... ] issued a decree ".

79th The Constitutional Court notes that in this situation the Ministry of bounds
enabling provisions of § 17 para. 3 of Law no. 48/1997. came within, if
framework contracts, which were submitted within the statutory period as a result of a properly completed
conciliation with the statutory priority
such a procedure issued a decree no. 618/2006 Coll.
This procedure is especially empowering provision directly anticipated, and
when i met other criteria § 17 par. 3 of Law no. 48/1997
., This provision does not give the Ministry the possibility of further
discretion (mandatory peremptory norm), even if it is controlled by the Ministry
minister who is a member of the Government authorized by the President pursuant to Article.
62 letters. d) of the Constitution.


VIII./c Another petitioner's objections


80th Another petitioner's objections esp. In relation to
during the conciliation proceedings, the Constitutional Court does not consider relevant, including allegations that
LOK-SCL and CLK, axes, were not invited to the final meeting. Even if
such a procedural defect has been shown, it remains the fact that
representatives of these organizations to final negotiations were present, as
clear from the relevant registration and attendance lists and which also shows
ministry.

81st To implicitly contained petitioners questioning
self-canceling previous decree provisions of § 2 of Decree no.
618/2006 Coll., The Constitutional Court finds that the termination of conciliation
and submitting various framework agreements ministry lost
Decree no. 290/2006 Coll. (Now regardless of the lack of legal
authorization for its release) and "substantive prerequisite for its existence"
(cf. One of the key ideas of the judgment of 20 October 2004 sp. Ref.
Pl. US 52 / 03 - see above). In this case, the legislative
logical and consistent with the principles of protection of legal certainty, that the previous legislation
the new legislation (the same scale) derogated.

82nd The legal representative of the petitioner in his final recitation again stressed
alternative petit - for the annulment of § 3 of the contested ordinance -
, arguing that it is a provision with retroactive effect
forcing healthcare providers to change existing contracts
indefinite period on temporary contracts (usually for eight years), and so
impermissibly interferes with the contractual autonomy. For attachments contested ordinance
however, that the newly agreed framework agreement although they include
in relation to all segments of service providers arrangements for negotiating contracts
fixed term, but always with the statement "if the parties agree | || otherwise. " The Constitutional Court notes that this form is not a
such intervention in existing contracts and freedom of contract, which would require a derogation
intervention by the Constitutional Court. The problem of equality of the parties and their
of contractual freedom in this case is more intensely affected
fact unequal relationship between health insurance companies on the one hand
and health care providers on the other, which is not solvable at
bylaws, which is contested ordinance.
In relation to the alleged "interference in acquired rights," points out, moreover
Constitutional Court mainly done on such an objection. This may be the edge
noted that the ministry is also in its observations that
§ 3 of Decree no. 618/2006 Coll. "Can not be understood in the sense that
should no longer interfere with the good faith of acquired rights.".

83rd In this context, it can point out the following settled case
Constitutional Court that the question of protection of acquired rights and
retroactive effect of legal norms dealt with in its decision-making practice repeatedly.
The number of its judgments emphasize that the characters of the rule of law are inextricably

Include the principle of legal certainty and the protection of citizens', which
includes a prohibition on retroactivity of laws, respectively.
their retroactive interpretation [cf.. eg. Finding sp. Ref. IV. US 215/94 dated
8th 6th, 1995 (N 30/3 SbNU 227); Finding sp. Nos. Pl. US 21/96 of 4
2nd, 1997 (N 13/7 SbNU 87; 63/1997 Coll.); Finding sp. Nos. Pl. US 33/01 of
12th 3rd 2002 (N 28/25 SbNU 215; 145/2002 Coll.) And others].
A conflict of old and new legislation, the Constitutional Court expressed eg., Also in finding sp.
Brand. Pl. US 21/96, in which it submitted to the principle of retroactivity of legal norms
analysis and opinion expressed herein that generally applies in this case
false retroactivity, ie. The effectiveness of the new legal norms and legal relationships under
canceled legal norms governing the new legal standard.
A legal relationship existing before the entry into force of new legislation
standards, legal claims that arise from these relations, as well as performed
legal acts are governed by the repealed legal norm (
consequence opposite interpretation would conflict of laws It was genuine retroactivity).
Constitutional Court holds the opinion that in terms of legal certainty
false retroactivity is acceptable.

84th For use later legislation, it is always necessary to take such
interpretation which saves meaning and essence of fundamental rights. It eventually things
general courts, when assessing the eventual disputes the interpretation adopted
respecting the constitutional protection already resulting claim [see. eg.
judgment of 15 December 2004 sp. . I. ÚS 344/04 (N 191/35 SbNU 497)].
Pleads If the petitioner principle of protection of acquired rights
refers to the Constitutional Court to any individual lawsuits before the ordinary courts
because of these claims can not be determined in proceedings before the Constitutional Court
(ie like in the case file. Nos. Pl. US 52/03).

85th For that § 3 of Decree no. 618/2006 Coll. - When using
interpretive methods outlined above - that does not mean that it should
cause impermissible retroactive effect in actually already acquired rights
, eventually. that this interpretation took the ministry itself. Principle
protection of vested rights does not include the element of absolute immutability
related legislation in the future. The Constitutional Court said
completeness of the purpose of the framework contracts under Law no. 48/1997.
further notes that the essence of this concept is the realization
party autonomy (freedom of contract) parties.
Legal obligation to respect the framework agreement resulting from conciliation and duly promulgated
mainly derive from the contested provisions of § 3 of Decree no. 618/2006 Coll
., But directly from the Act no. 48/1997 Coll., And to the provisions of § 17 para.
3, first sentence ( "Agreement pursuant to paragraph 1
concluded between health insurance and health facilities are governed by a framework contract").

86th The broader argument that plaintiff's representative asserted at the hearing
formally in relation to § 3 of Decree no. 618/2006
Coll., The Constitutional Court notes that it is inherently alien to the verdict and bounds
review by the Constitutional court in this proceeding.
Subject to an assessment of the Constitutional Court now mainly been the overall concept of the relationship
medical facilities and health insurance companies (ie
a number of institutes in Act no. 48/1997 Coll.) Or construction tender
aimed at creating a network
medical equipment through individual contracts with individual health institutions (§
46 to 52 of the Act no. 48/1997 Coll.), although this process that precedes
contractual relationship, the petitioner assessed as problematic.
In this context, therefore, not even the content of the Constitutional Court's consideration of whether
existence five years, respectively. eight-year duration of the contract, if necessary.
Agreement of indefinite time, has any constitutional relevance.
More specifically, the petitioner was not even alleged that some time
duration of the contract was constitutionally guaranteed.
Variability in this aspect compared to the opposite directly assumes the enabling provisions of § 17 paragraph
. 3 fifth sentence of Act no. 48/1997 Coll., Which, among other things. Stipulates that
"[r] ámcová contract always contains a provision regarding the time
efficiency [...]", ie the current wording In any case contains no statutory requirement
that framework contracts were concluded for an indefinite period. If
ministry in the first half of 2006 before the end of the conciliation

Management arrive at their own (political) consider that the duration
individual contracts should be for various reasons in the future
time limit, which the Constitutional Court now is not objectively assessed, it is still necessary even for
earlier decree no. 290/2006 Coll. unconditionally apply
requirement for the existence of statutory authorization.

87th The Constitutional Court reiterates that due to the construction
enabling provisions of § 17 para. 3 of Law no. 48/1997. is fundamentally
any obligation (later) Minister, respectively. Ministry
when other conditions are met to issue a framework contract resulting from the conciliation proceedings as
decree. The Constitutional Court has never accepted the arguments of the petitioner
that implied political (or other interest)
purpose of issuing the contested decree no. 618/2006 Coll.

NB
if it was shown that the conciliation procedure was initiated at a time when
objective was unforeseeable result of subsequent elections to the Chamber of Deputies and
(political) the composition of the future government.
Concrete outcome of the conciliation - which is the content of the decree no. 618/2006 Coll
. - Was the result of the will of an authority other than the Minister and was known
more than two months before he was MD. Tomas Julínek appointed minister.

IX.
Varia


88th The Constitutional Court found it unnecessary to take evidence in relation to the chronology
constitutional steps associated with the appointment process
governments and express no confidence in the Chamber of Deputies in 2006 and 2007 because
it is a fact well known. It also seemed superfluous
require further conciliation opinions of participants, including those
in its written submissions recommending the petitioner.

89th The Constitutional Court found no grounds for priority review
things according to § 39 of the Constitutional Court, because
alleged lack of legitimacy (in the plane of constitutional authority) to issue a decree no. 618/2006 Coll
. at the time of submission of the proposal was - with regard to the general tension between the authorities
by dividing power - no way searing, as of 9 January
2007 she was appointed the new government of Mirek Topolanek, which on 19 January 2007
He gained the confidence of the Chamber of Deputies.
Ministry led by a member of the government that gained the confidence of the Chamber of Deputies, according to its statement
not feel Decree no. 618/2006 Coll. as unconstitutional interference
previous "interim" executive in his own competence, rather it
defended. At the same time, or any preferential (months)
repeal the contested Decree no. 618/2006 Coll. It was used to objectively not eliminate
state when actually there were two groups of medical devices
treaties that followed the various framework contracts according to the time
efficacy of the two decrees. The repeal of the contested ordinance would not "neobživla"
previous legislation, neither the previous framework agreement, to which the petitioner inclined
content. It would also not affect the validity
already signed contracts. Finally, the Constitutional Court did not find either of
urgency alleged interference in the contested ordinance already acquired rights because
existence of such interventions in the proposal were not substantiated, the argument
petitioner moved only at the level of general concern and assessment
Cured individual claims could not be subject to this procedure.

X.
Conclusion


90th The Constitutional Court therefore found no contradiction contested ordinance or
part of the constitutional order or the law, therefore, annulment
contested ordinance pursuant to § 70 para. 2 of the Constitutional Court.

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 Elizabeth
Wagner and Jan Musil.