PL. ÚS 1/08 of 2008.09.23: STABILIZATION OF PUBLIC BUDGET - HEALTH CARE FEES

HEADNOTES

In deciding, the Constitutional Court could not overlook the fact that the part of the contested Act that is adjudicated in this proceeding is an integral content component of the stabilization of public budgets. In this regard it focused its attention on the principle of restraint and minimizing interference and on the question of the Constitutional Court’s authority to make a cassation decision. Similarly as in judgments file no. Pl. ÚS 24/07 and file no. Pl. ÚS 2/08 (promulgated as no. 166/2008 Coll.), the Court believes that, even if it finds sufficient grounds to deny the petition after merely finding the answers to this circle of questions, it is appropriate not to decide, citing grounds of procedural economy, without performing a rationality test, i.e., considering – even if in terms of the optical viewpoint and the structure of the judgment’s reasoning – the seemingly closing, but from a juristic viewpoint undoubtedly primary substantive question – whether the contested legal framework violates any provision of the Constitution or of the Charter, or whether it interfered in any right protected by the Charter. Thus, this means restraint and minimization of interference, the rationality test, or the consistency of the contested legal regulation with the provisions of the Constitution or of the Charter.
The Constitutional Court of course also took into consideration that reform of the health care system in this phase has not yet been finished, and that Minister of Health Tomáš Julínek, as a witness, testified that other related bills will be prepared in the near future. The Constitutional Court now adds that if it acted in too activist a manner in relation to any reform, including reform of health care, it would certainly create case law that would a priori close the door on any reform attempts. The Constitutional Court also takes into account the fact that the effects of reform cannot be evaluated until after the mechanisms created can begin to function, and adds that, in terms of evaluating the constitutionality of the contested provisions, it has authority only to decide on the fundamental principles, not on a particular factual situation.
It will be the obligation of the legislature, after analyzing the effect of regulatory fees, to evaluate for every individual fee whether it does not affect the existence or exercise of a right arising from Art. 31 of the Charter, whether it pursues a legitimate aim, and whether a particular fee is a reasonable means to achieving that aim, also together with evaluating the effects on the ability [to pay] of various groups of payers of regulatory fees in connection with rights to financial or other material profits established by statues from other areas of law than statutes implementing Art. 31 of the Charter. The legislature must then make decisions based on this evaluation, including possibly derogatory (or amending) ones. However, the existing review of a statutory regulation permits the Court to base its reasoning only on abstract constitutional law arguments, not on the actual effects of a statute, which it is not possible to determine individually in  proceedings  before the  Constitutional  Court.   If the petitioners, as representatives of the legislative branch, believe that the legal regulation they contest is inappropriate or has negative consequences, they can seek change within political competition, not within judicial review of constitutionality, which, by definition, must be limited only to questions of a constitutional law nature. If the Constitutional Court were to grant the petition and decide itself, instead of the legislature, it would violate not only the cited provisions of the Constitution of the CR, but it would make the competition of political parties unnecessary (see Judgment Pl. ÚS 2/08).
Realizing that “in contrast to legal science … or practical dogmatics, other fields that concern themselves with law, without considering practical aims, such as legal history, comparative law, and legal philosophy, are of a supporting nature” (cf. L. Heyrovský, Dějiny a systém soukromého práva římského [History and System of Private Roman Law], VI. edition , Bratislava 1927, pp. 9-10), the Constitutional Court, first looked from the perspective of these disciplines at the circumstances in which the right to protection of health and provision of health care were formulated, under which it is, was, or was not introduced in the constitutional order in the developed European States, and finally how it was in reality applied in the practice of the Czech lands, and how the organization of health care developed. These are substantial grounds which give rise to what the unique features of social rights will be, as summarized in the judgment.
Before proceeding to the reasonableness test, the Constitutional Court considered the nature of social rights and their different nature, given by Article 41 par. 1 of the Charter. Analogously as in judgment file no. Pl. ÚS 2/08, it states that these rights “are not unconditional in nature, and they can be claimed only within the confines of the laws (Art. 41 par. 1 of the Charter) …. Within these bounds the legislature has a relatively wide ability to regulate the implementation of individual social rights, including the possibility to amend them. ”For the foregoing reason, the Constitutional Court concluded that the reasonableness test in the case of social law is methodically different from a test that evaluates proportionality with fundamental rights, “because social- economic aspects play a much greater role here.” The rationality test, especially in a situation where the Constitutional Court concluded that a judgment [sic – petition?] could be denied for reasons of maintaining restraint, has a more orientational and supportive role here.
In combination with the requirements arising from Art. 4 par. 4 of the Charter we can describe 4 steps leading to a conclusion that a statute implementing constitutionally    guaranteed social rights is or is not constitutional:

1. defining the significance and essence of the social right, that is a certain essential content. In the presently adjudicated matter, this core of a social right arises from Art. 31 of the Charter in the context of Art. 4 par. 4 of the Charter.
2. evaluating whether the statute does not affect the very existence of the social right or its actual implementation (essential content). If it does not affect the essential content of the social right, then
3. evaluating whether the statutory framework pursues a legitimate aim; i.e. whether it does not arbitrarily fundamentally lower the overall standard of fundamental rights, and, finally
4. weighing the question of whether the statutory means used to achieve it is reasonable (rational), even if not necessarily the best, most suitable, most effective, or wisest.

Only if it is determined in step 2) that the content of the statute interferes in the essential content of a fundamental right should the proportionality test be applied; it would evaluate whether the interference in the essential content of the right is based on the absolutely exceptional current situation, which would justify such interference .
Thus, it follows from the nature of social rights that the legislature cannot deny their existence and implementation, although it otherwise has wide scope for discretion.
The essential content (core) of Art. 31, second sentence of the Charter is the constitutional establishment of an obligatory system of public health insurance, which collects and cumulates funds from individual subjects (payers) in order to reallocate them based on the solidarity principle and permit them to be drawn by the needy, the ill, and the chronically ill. The constitutional guarantee based on which payment-free health care is provided applies solely to the sum of thus collected funds.
The Constitutional Court considers it determined that the purpose of the legislature’s original intentions concerning regulation was an emphasis on such organization of the health care system as would ensure higher quality actual implementation of Art. 31, first sentence of the Charter, that is, the provision of health care at an adequate place and time and of better quality.
As indicated by the evidence presented, the fees introduced by the Act regulate access to health care that is paid from public insurance, whereby they limit excessive use of it; the consequence is to increase the probability that health care will reach those who are really ill. Thus, through the fees, the legitimate aim of the legislature is met, without the means used appearing unreasonable.
Abstract review of a statute cannot theoretically review and reliably rule out all its imaginable effects in the personal sphere of the addressees of norms. However, such possible individual interference can, of course, still be corrected using standard procedures, including a constitutional complaint.
According to the contested Act, a “regulatory fee” is the income of a health care facility. However, this provision cannot be interpreted out of the context formed by the synallagmatically connected system of rights and obligations of the three participating subjects, i.e. the patient, the health care facility, and the health insurance company. Hypothetically we can certainly imagine the alternative that the “regulatory fee” in the same amount would be conceived as part of the insurance premium for health insurance, and the place of payment would be the health insurance company, which would subsequently, contractually or by law, increase the payment to the relevant health care facility by the amount of this insurance premium, which, incidentally, would not even have to be collected as a collection debt. This model, which would not conflict with linguistic interpretation of Art. 31 of the Charter, would, however, have the same consequences for the patient as the existing model, which is based on the principle that the payment is made directly to the final recipient.
The Constitutional Court did not find that regulatory fees have a generally “strangling effect” and realistically make health care or health care aids inaccessible for anybody. In concrete individual cases one can proceed under § 16a par. 2 let. d) of the Act on Public Health Insurance, under which the regulatory fee is not paid by an insured person who presents a decision, notice, or confirmation, no more than 30 days old, issued by a body providing assistance in material need, about the benefit payment that is provided to him under a special regulation. We also cannot overlook the limit of CZK 5,000 specified by § 16a par. 1 of the Act on Public Health Insurance. In the context of relationships based on internal solidarity, we cannot neglect to mention the institutions of the mutual support obligation between parents and children, the support obligation between other relatives, the support obligation between spouses, alimony for a divorced spouse, a contribution for the support and payment of certain expenses for an unmarried mother under Part Three of Act no. 94/1963 Coll., on the Family, as amended (the “Act on the Family”). Nor can we overlook the provision of the Act on the Family on parental responsibility, or, e.g., the obligations of a child living in a common household with its parents under § 31 par. 3 and 4 of the Act on the Family.
The Constitutional Court is aware of the multi-functionality of a regulatory fee, because, in addition to the regulatory element, there is a utilitarian viewpoint, consisting of the fact that regulatory fees help a health care facility, in addition to providing payment-free health care, to function better, provide related services, or improve personnel aspects and the level of the environment in which health care is provided, and so on.
As part of the reasonableness test, the Constitutional Court weighted whether the principle expressed in Art. 4 of the Declaration of the Rights of Man and of the Citizen in 1789, that “liberty consists in the power to do anything that does not injure others,” applies to the area of social rights, and concluded that formalistic insistence on payment-free medicine for individuals using an expansive concept could actually lead to lowering the level of payment-free medical care paid out of public insurance, in the real sense of the word, for all members of society.
A health care facility does not have a right under Art. 31 of the Charter, that is held by the citizen, or the patient. A health care facility is a health care provider, and a subject in the health care system, which also fulfills organizational, economic, financial, employer, scientific-research, educational, etc. functions. The fact that a health care facility does not collect regulatory fees is a transgression, the object of [making it one ] is the interest in the functioning and protection of the health care system. A certain analogy can be found, e.g. in the penalties imposed for violating the rules of economic competition or in the regulation of consumer protection. In these areas as well, a public law penalty is imposed for violation of obligations that consist of unfair distortion of a private law relationship. The consequences of not fulfilling the obligation to collect regulatory fees can appear, e.g., in distortion of access to health care facilities or a reduction in quality where a health care facility that does not collect fees exceeds its patient capacity. The Constitutional Court adds that it is up to the legislature, to choose which subject it will give the power to impose a public law penalty, if the penalty is imposed as the result of a proper administrative proceeding and the imposition of a penalty is subject to judicial review, which the contested legal regulation meets.
If the Ministry of Health acted thus ultra vires and issued an individualized decree that was not a generally binding legal regulation, but a hidden individual administrative act, it would certainly be appropriate to object to such a decree; however, the Constitutional Court did not find the statutory authorization to be unconstitutional.
Of course, in order to deny the petition it would have been independently sufficient for the Constitutional Court to conclude either that, for reasons of restraint and minimizing interference, there is no room for a derogatory judgment, or that the contested legal regulation is not unconstitutional, because in its opinion the contested legal regulation was adopted within the framework set froth by Art. 4 par. 4 of the Charter and it met the rationality test. Thus, theoretically the Constitutional Court basically had to choose whether to choose for the reasoning of its decision only one of the groups of reasons, or all of them. After deciding, in the specific matter, which concerns the very serious issues of life and health, for a more comprehensive approach, and thus weighing reasons from all spheres, it adds that, among them, it gives hierarchical priority, including within the intent of the judgment in the matter file no. Pl. ÚS 24/07 and file no. Pl. ÚS 2/08 – having in mind the interconnected content and unifying context of the Act on Stabilization of Public Budgets and noting that the decision to separate this matter and the matter conducted under file no. Pl. ÚS 2/08 was of a purely procedural nature – grounds that led it to restraint and minimization of interference. The fact that the contested legal regulation was not found to be unconstitutional and that it me the reasonableness test leads to the conclusion that interference by the Constitutional Court in analogous matters could come into consideration only in case of flagrant caprice, arbitrariness and unreasonableness by the legislature, which – as was repeatedly said and indicated – was not found in this matter.