Decision No. 3 of 8 March 2016 on Constitutional Case No. 6/2015
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by sixty-two Members of Parliament from the 43rd National Assembly for a declaration of unconstitutionality and a ruling on conformity with generally recognised norms of international law and with the international treaties to which the Republic of Bulgaria is a party, concerning §10, item 2 of the Act Amending and Supplementing the Health Insurance Act, as well as Article 40, paragraph 4a of the Health Insurance Act.
Summary of the Court’s Reasoning
The right to health insurance is regulated in Article 52, paragraph 1 of the Constitution, according to which citizens shall have the right to health insurance guaranteeing them accessible medical care, as well as the right to free medical assistance under conditions and in accordance with procedures established by law. The constitutional provision is based on the right to health as a fundamental right of citizens, although it does not explicitly formulate it as such, and it entrusts to the legislature the regulation of the manner of health insurance, the types of insurance, the amount of the health insurance contribution, the insurance base, the insurable income, and other rules, which are to be laid down in legislation. The legislature determines, as a matter of policy discretion, what system of health insurance to adopt and the principles on which it will be implemented, in accordance with constitutional norms.
In the contested provision of Article 45, paragraph 2 of the Health Insurance Act, in the first sentence the word “basic” is deleted, and in the second sentence it is provided that the benefit package shall be divided into a basic and a supplementary package and shall be determined by an ordinance of the Minister of Health.
In practice, Article 45, paragraph 2 of the Health Insurance Act merely provides the names of the new packages without regulating their content. At the statutory level, it remains unclear what the consequences for insured persons will be.
In the explanatory memorandum to the draft Act Amending and Supplementing the Health Insurance Act No. 502-01-13, submitted by the Council of Ministers to the 43rd National Assembly on 2 February 2015, it is stated only that the package of medical services covered by the National Health Insurance Fund is divided into a basic and a supplementary package, and that the specific medical activities to be included in the packages will continue to be regulated by an ordinance of the Minister of Health.
The legislative solution adopted, which directly confers regulatory competence on the Minister of Health in a matter that is subject exclusively to statutory regulation, does not satisfy the constitutional requirements of Article 8 and Article 52, paragraph 1 of the Constitution and, on these grounds, must be declared unconstitutional.
Article 45, paragraph 2 of the Health Insurance Act is contrary to the principle of the rule of law also because it is vague and not only creates prerequisites for contradictory application of the law, but also allows it to be filled with different content now or in the future. The law does not clarify the basis on which the distinction between the two packages is to be made, nor the intended consequences thereof.
In view of the already established unconstitutionality of the contested provision, the Court does not consider it necessary to rule on the request insofar as it seeks a determination of conformity with generally recognised norms of international law and with the international treaties to which Bulgaria is a party, since such examination would be devoid of purpose.
The contested provision of Article 40, paragraph 4a of the Health Insurance Act, effective as of 1 January 2016 following the amendment introduced by §9, item 2 of the Act Amending and Supplementing the Health Insurance Act (promulgated in State Gazette, issue No. 48 of 27 June 2015), provides that, for the persons under paragraph 3, the insurance contribution shall be paid in the amount determined by the National Health Insurance Fund Budget Act for the respective year, calculated on the basis of 55 per cent of the minimum insurable income for self-insured persons as from 1 January 2016, with an annual increase of 5 per cent until the minimum insurable income for self-insured persons is reached.
The Constitution does not determine the amount of insurance contributions or the insurable income, but entrusts the legislature with regulating the conditions and procedure for determining them by law. In adopting such legislation, Parliament, taking into account the current financial possibilities and constraints, regulates these matters as a matter of legislative expediency, since the amount of the insurance contribution constitutes an element of the State’s tax and social insurance policy.
Health insurance contributions payable by insured persons are, as a rule, not of equal amount, notwithstanding the fact that all persons, irrespective of the amount of the insurance contributions, enjoy equal access to medical care and receive the same healthcare services, regardless of when the insurance relationship arose, the amount of the insurance contribution, or the person paying it into the budget of the National Health Insurance Fund. The Constitution does not contain a requirement that all insured persons must pay health insurance contributions of equal amount. For this reason, the Health Insurance Act provides for differentiated insurable income for different groups of insured persons, the maximum and minimum thresholds of which are determined by law, but not below the minimum insurable income. As a result, insured persons pay insurance contributions of varying amounts; however, since these contributions are not allocated to individual accounts, due to the fund-based structure of compulsory health insurance and the principle of solidarity under Article 5, item 5 of the Health Insurance Act, all persons receive the same medical care.
The request does not contain specific arguments in support of the assertion that the contested provision of Article 40, paragraph 4a of the Health Insurance Act is inconsistent with international law and with the international treaties to which Bulgaria is a party. In principle, the instruments listed in the request are unrelated to the obligations of the social State to ensure the financial stability of the health insurance system and are therefore not relevant to Article 40, paragraph 4a of the Health Insurance Act, while some of them do not concern equality before the law and the prohibition of discrimination in healthcare and the corresponding health insurance relations either.
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 2 (the competence to rule on requests for a declaration of unconstitutionality of laws) and item 4 (power to rule on the conformity of laws with generally recognised norms of international law and with the international treaties to which Bulgaria is a party) of the Constitution, the Constitutional Court declares unconstitutional the provision of Article 45, paragraph 2 of the Health Insurance Act.
The Court rejects the request submitted by sixty-two Members of Parliament from the 43rd National Assembly for a declaration of unconstitutionality and for a ruling on conformity with generally recognised norms of international law and with the international treaties to which Bulgaria is a party, concerning Article 40, paragraph 4a of the Health Insurance Act.
The decision was signed with a dissenting opinion by one judge.