Decision No. 8 of 28 June 2016 on Constitutional Case No. 9/2015
Referring Authority and Subject Matter of the Case
The case was initiated upon a request submitted by 57 Members of Parliament from the 43rd National Assembly seeking a declaration of unconstitutionality of Article 34a and Article 37a of the Medical Establishments Act, as well as a ruling on their conformity with generally recognized norms of international law and with international treaties to which Bulgaria is a party.
Summary of the Court’s Reasoning
Unlike the Health Insurance Act (HIA), which regulates the conditions and procedure for exercising the constitutional right of citizens under Article 52, paragraph 1 of the Constitution, the Medical Establishments Act (MEA) governs social relations in the field of healthcare, in particular those related to the establishment and functioning of medical establishments as providers of medical services. The MEA employs terminology relating to governance functions in healthcare and explicitly refers to a national health policy. Its subject matter primarily concerns the conditions and procedures for the establishment and operation of medical establishments, as one of the key elements of the national healthcare system. This regulatory framework places emphasis on medical establishments as entities expending public resources, rather than as market participants operating freely in the provision of medical services.
The Constitutional Court refers to Article 3 of the Normative Acts Act, emphasizing that the subject matter of statutory regulation should be “relations that are capable of stable regulation,” whereas, for the regulation of other relations in this field, the law may provide for the adoption of subordinate legislation. The fulfilment of the State’s obligation to formulate and implement a health policy ensuring equal access to medical care for all is a dynamic matter, requiring a continuous balancing between the short-term and long-term interests of the participants in the healthcare system. This policy is carried out under conditions of limited public financial resources and is not readily amenable to stable legislative regulation. Given the nature of the regulated social relations, and in compliance with the requirement of justice understood as equality, the legislature establishes the fundamental standard for the allocation of public funds for treatment - namely, hospital beds categorized by type and levels of medical competence. At the same time, it entrusts the executive branch, through its own acts, with regulating the criteria and procedures for maintaining a balance of interests while safeguarding human health as a public good.
The contested provision of Article 34a of the MEA does not regulate matters of health insurance, and therefore the requirement under Article 52, paragraph 1 of the Constitution does not extend to it. In light of the foregoing, the Court finds that Article 34a of the MEA does not “delegate” authority to the Government to regulate, by means of subordinate legislation, a matter reserved for statutory regulation. Accordingly, the provision of Article 34a of the MEA does not contravene Article 4, paragraph 1 (rule of law) and Article 52, paragraph 1 of the Constitution.
The possibility, provided for in Article 34a of the MEA, for the regional health insurance funds to choose with which medical establishments to conclude contracts in regions where the number of hospital beds exceeds the specific needs, by type, as determined by the National Health Map, does not restrict patients’ freedom of choice with regard to healthcare providers, nor does it lead to unequal treatment of economic operators or to a distortion of competition. The contrary assertion is based on an idealization of the free market, disregards the social determinants influencing such choice, and fails to take into account the nature of health as a public good. It also overlooks the specific characteristics of the market for medical services.
Economic freedom is not absolute; it yields to the necessity of ensuring - under conditions of limited public resources - the attainment of the primary objective in healthcare, namely the protection of life and the safeguarding of citizens’ health. State intervention in this sphere is not only constitutionally permissible; it is socially necessary and justified by the legitimate aim of the law. Moreover, the possibility for state intervention provided for in Article 34a of the MEA is limited both in time and scope. The law provides for the possibility of updating the National Health Map and does not impose restrictions on investments in regions where the needs for healthcare services are not adequately met. The cumulative effect of this state intervention is to promote competition among providers of medical services throughout the country and to ensure equal opportunities for access to affordable medical care for the population, through a fair allocation of the available public resources. It should be emphasized that the acts through which this state policy is implemented are subject to judicial review.
The restrictions on competition arising from the contested regulation are proportionate to the legitimate aim pursued by the law - the protection of human health - and do not violate Article 19 of the Constitution.
The provision of Article 34a of the MEA does not violate international treaties to which the Republic of Bulgaria is a party. It is fully consistent with Article 12, letter (d) of the International Covenant on Economic, Social and Cultural Rights. Taking into account the non-market nature of health and the specific characteristics of the market for medical services, the legislature has determined a form of state intervention appropriate to that specificity. The restrictions imposed on providers of medical services do not affect the rights of users of such services, as they comply with the fundamental requirements set out in Article 4 of the Covenant. They are prescribed by law, aimed at improving the welfare of society, and ensure the effective use of available public resources for health. In a democratic society, these restrictions are legitimized by the conditions they create for equal access of every citizen to medical care.
The Court finds that Article 11 of the European Social Charter is not relevant to medical establishments as providers of medical services. The emphasis of that provision lies on national health policy - namely, prevention and promotion of health - which falls outside the scope of the Medical Establishments Act. For this reason, the Court does not examine the conformity of Article 34a of the MEA with Article 11 of the Charter.
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 (the competence to rule on requests for establishing the conformity of laws with generally recognized norms of international law and with international treaties to which Bulgaria is a party) of the Constitution, the Constitutional Court rejects the request submitted by 57 Members of Parliament from the 43rd National Assembly to declare Articles 34a and 37a of the Medical Establishments Act unconstitutional and inconsistent with international treaties to which the Republic of Bulgaria is a party.
The decision was signed with dissenting opinions by four judges.