Decision No. 15 of 19 December 2013 on Constitutional Case No. 19/2013
Fifty-one Members of the 42nd National Assembly challenged the constitutionality of the Assembly’s decision of 4 July 2013 on the suspension of the term of office before its expiry of Plamen Tzekov, the Manager of the National Health Insurance Fund (NHIF) on the grounds of Art. 19, para 4, item 3 of the Health Insurance Act (HIA).
The Constitutional Court found the following facts:
A decision of the National Assembly of 29 March 2012 elected Plamen Tzekov NHIF Manager to serve a term in office till 12 February 2015.
The decision challenged discontinued the office, effective on 10 July 2013 – a power that the National Assembly enjoys under Art. 84, para 1, item 8, alternative 2 of the Constitution to elect and dismiss the heads of institutions established by law and under Art. 19, para 4 of the HIA.
The decision is not a fact-finding or a circumstance-establishing text; rather it gives only the text – Art. 19, para 4, item 3 of the HIA – that is the justification.
The actual reasons are listed in the motivation to the draft decision proposed by the National Assembly upon its floor approval. These are: а) the disruption of the dialog between the professional organizations and the NHIF; b) NHIF unilaterally forced decisions that concern the health system management and funding and that doom hospitals to bankruptcy and deprive citizens of normal affordable healthcare; c) the Manager’s reluctance to proceed with a NHIF budget adjustment in end 2012 to add BGN 50 million – a transfer that the Ministry of Health did not make – plus overpaid health insurance contributions; d) regulatory methods that were introduced from the first day of 2013 and that resulted in hospital budget cuts; e) the professional and patient organizations’ unwillingness to negotiate and work with the NHIF Manager.
Due to the failure to have the required majority of more than half of the votes of all Justices (Art. 151, para 1 of the Constitution), the motion was declined on grounds of procedure where three Justices found it inadmissible, five Justices thought it should be dismissed as unsustainable and four Justices found it sustainable.
І. Three Constitutional Court Justices found the motion inadmissible for reasons that follow:
1. The decision challenged is a unilateral declaration of intention by an authority to divest a physical person, once elected, of the right to exercise ex nunc the competence of the Manager of the NHIF as a State institution. Though the decision was taken by the National Assembly, the field of action of the decision goes beyond the province of the Legislature as the decision applies an existing legal prescription and does not create a new one. Further, the decision goes beyond the province of the Judiciary since it does not settle a legal dispute in keeping with the existing legal prescription. The consequences of the decision are within the province of the Executive just as it would be had it been taken by an administrative body. In fact it is not the provenance of the authority which is the objective of the declaration of intention within either of the three branches of power; it is the method of regulation and the legal effects of the declaration of intention that is of relevance for defining it as an act of power of a specific, i.e. legal, administrative or judicial act or else as a civil-law instrument. The National Assembly has the power to take decisions that have the aspects of administrative acts. The same holds true of legal entities or natural persons and of their associations providing they are empowered by law to do that.
2. In the case in question the decision amounts to the declaration of intention by a body which behaves as an administrative body in the meaning of Art. 120, para 1 of the Constitution. Supervision over the legality, according to this provision, is exercised by the courts and is made subject to the appeal procedure for an administrative act as determined by the incumbent Legislature providing the Legislature has not made such acts unappealable under the conditions (and restrictions) of Art. 120, para 2 of the Constitution. The legality that is supervised by the administrative courts includes the compliance of the administrative act with the laws and bylaws and mostly with the Constitution. Legality is the compliance of an act with the law in the generic meaning of this concept within the whole set of legislative regulations.
3. А) The formal interpretation of the text of Art. 149, para 1, item 2 of the Constitution as a result of which the supervision over these parliamentary decisions is reduced to their abidance by Art. 84, item 8 of the Constitution does not recognize that they are acts with administrative aspects and therefore subject to full supervision over their legality in line with Art. 120, para 1 of the Constitution. The adoption of such an interpretation reduces control to a check of the National Assembly’s substantive competence contingent upon the existence of a law that empowers it while the compliance of the decision with the law in the narrow sense of the concept is not possible. Such supervision would result solely in a greater number of laws by which the Parliament elects or dismisses heads of institutions.
B) There is no cogent reason to treat Art. 149, para 1, item 2, alternative 2 as special in comparison to Art. 120 of the Constitution and thus the Parliament’s administrative acts are subject either to check for compliance with the Constitution performed by the Constitutional Court or to check for abidance with the law performed by an administrative court. Such a system of supervision is casuistic and complicated in legal and technical terms for no defensible constitutional objective to justify it.
C) If supervision as a whole, including the check for abidance by the law is within the Constitutional Court’s jurisdiction, then the persons who the administrative act affects will be the first to be divested of the right to take recourse to legal defense as prescribed by Art. 56 and guaranteed by Art. 120, para 2 and Art. 122 of the Constitution, on account of, inter alia, their non-inclusion in the group of legitimate holders who Art. 150 of the Constitution entitles to approach the Constitutional Court.
The Constitutional Court holds none of the constitutional, hence the lawful prerogatives of the Judiciary. The tool of Art. 121 of the Constitution enables the establishment of the truth of facts cited as a justification for the suspension of the term of office before expiry. The constitutional process has no such tool of operation under Art. 149, para 1, item 2 of the Constitution. In general the Constitutional Court is not to judge the application of a law in relation to other specific facts as the Judiciary does; it is to see that a law and other acts of Parliament comply with the Constitution. For that reason the constitutional process does not possess the kit of legal tools that are typical of justice for the establishment of facts. However, it is facts that underlie the judgment whether a National Assembly’s decision is compliant.
4. Supervision over the National Assembly’s challenged decision and all decisions that have the aspects of administrative acts is subject to the Judiciary’s (Art. 120 of the Constitution) and not to the Constitutional Court’s jurisdiction. The modus operandi, including the generically competent court (cf. Art. 125, para 2 of the Constitution) is determined by the incumbent Legislature.
Since the question of a motion’s admissibility may be raised in any phase of the constitutional process, for such reasons and on the basis of Art. 25, para 2 and Art. 26 of the Rules on the Organization and Activities of the Constitutional Court the consideration of the challenge on its merits is inadmissible and the motion should be dismissed.
ІІ. А) Three Constitutional Court Justices found the motion unsustainable for reasons that follow:
A state committed to the rule of law stands for a reality where the Republic of Bulgaria is governed by the Constitution and by the laws of the country (Art. 4, para 1, sentence 2 of the Constitution). The legal nature of the National Assembly’s decisions rules out any inconsistence with the Constitution and the laws. The opposite would signify that the National Assembly is not bound by an existing law upon the adoption of a decision. Therefore as the Health Insurance Act reads that the Manager of the National Health Insurance Fund shall be granted individual tenure, then any suspension by the National Assembly before the expiry of the tenure shall have to be justified by legal texts only to guarantee for the independence of the institution (Decision No. 13/2010 on Constitutional Case No. 12/2010).
The Constitution disallows an extension or a limitation of the Constitutional Court’s powers by a law. Even the Constitutional Court is disallowed to take decisions to that effect. The Constitutional Court’s competence is confined to judgments of the National Assembly’s decisions’ compliance with the Constitution.
The dispute in question concerns the scope and the substance of the Constitutional Court’s supervision whenever the constitutionality of National Assembly’s decisions is challenged. No doubt in such proceedings the Constitutional Court shall not act as a court on the facts. Our view is that the Constitutional Court’s judgment shall not be formal and be reduced solely to the revelation of a National Assembly decision’s noncompliance with a specific Constitution prescription or of nonconformance with the decision adopting procedure. The judgment shall be entirely subservient to the understanding that the National Assembly’s decisions should not be discordant with the Constitution principles and values. In the case under consideration the decision on the suspension of the tenure of the National Health Insurance Fund Manager in his capacity of head of institution as per Art. 84, item 8 of the Constitution must conform also with the reasons that the law provides for. The institution is granted the tenure for the sake of public interest, so any unlawful suspension would constitute, in addition to a nominal violation of the Constitution and the law, a material damage to public interest.
An opposite concept of nominal control might encourage the National Assembly to vote decisions that are dissonant with the Constitution providing they cite a reason that is couched in legal terms for the suspension of the term of office of the head of a State institution before its expiration. In addition to politically-inspired outrages that might be sparked off, rights of the persons implicated might be infringed on for no valid legal reason. The National Assembly is bound by the laws just as and in as much as any other institution of the State (Art. 86, para 2 of the Constitution).
So far the Constitutional Court’s treatment of such matters has been confined only to an outside judgment of the National Assembly’s decisions’ compliance with the Constitution and to an emphasis that “the judgment of constitutionality as per Art. 149, item 2 of the Constitution should be made solely in consideration for noncompliance with Constitution texts and not with other statutory instruments that impose further requirements or procedures” (Decision No. 3/1991 on Constitutional Case No. 17/1991). This concept is expressly repeated in Decision No. 3/1995 on Constitutional Case No. 6/1995 and in Decision No. 11/2000 on Constitutional Case No. 13/2000 where it is stressed that “The compliance of the Parliament’s decision challenged under Art. 149, para 1, item 2 of the Constitution can be judged only on grounds of violations of the Constitution and not of the National Assembly’s Standing Orders whose status is not the status of the Constitution.” The concept recurs also in Decision No. 17/1997 on Constitutional Case No. 10/1997 where the Court ruled that “in the meaning of the Constitution the National Assembly’s decisions shall be compliant with the laws that the Assembly passes”. However, this decision pertains to a case where the National Assembly dismissed a person whose election and dismissal are delegated to an authority other than the National Assembly, hence the resulting violation of Art. 84, item 8 of the Constitution.
In our view this practice rests on the understanding that constitutional supervision over the National Assembly’s acts precludes any judgment of the decisions’ legality owing to the need to ensure the freedom required for the process of taking a decision on a discretionary basis by a political body like the National Assembly.
In our view the practice so far should be reconsidered in the light of the Constitutional Court’s Decision No. 13/2010 on Constitutional Case No. 12/2010 regarding the concept “term of office”. The principles that underlie this decision call for a consideration of the circumstances that are cited in the legal provision which provides for suspension as per Art. 84, item 8 of the Constitution. Otherwise the National Assembly will slip out of control when and if it cites reasons that a law provides for whereas the suspension before the expiration of the term of office might have been inspired by a rationale that has absolutely nothing to do with the codified reasons. The National Assembly’s discretionary power to vote decisions that it deems appropriate ends where public interest steps in – in the case under consideration it is the entitlement of the elected official to fulfill his or her functions until the tenure ends providing the fulfillment abided by the law.
There is no cogency in a claim that any suspension of powers before the expiry of the term of office is necessarily a political outrage. This is a Constitution-granted prerogative of the National Assembly so it is only normal that it should be exercised in a state committed to the rule of law providing the Constitution and the laws are abided by really and not for appearance’s sake. A practice where a majority plays with legal tools to fabricate pretenses for suspension before the term of office expires for no other reason but to make a political decision appear conformant with the law shall not be a building block of the foundation of a state committed to the rule of law. Therefore the National Assembly’s discretionary power to suspend а tenure before it has expired under Art. 84, item 8 of the Constitution shall be reined, first and foremost, by the principles of the Constitution and, as a second step, by the law.
This should not imply that the National Assembly’s decisions that are checked for compliance with the Constitution from the perspective of the principle of the state committed to the rule of law and in defense of Constitution-enshrined values are not, in parallel, checked for compliance with the law. A check of this kind ensures the right to legal defense that Art. 56 of the Constitution proclaims to be enjoyed by individuals whose rights happen to be infringed upon inasmuch as the tenure always has a personal component.
The above-stated matter makes it binding on the Constitutional Court to judge, inter alia, whether the motivation of the National Assembly’s challenged decision tallies with the reasons on the basis of which the NHIF Manager may be dismissed before the tenure expires as per Art. 19, para 4, item 3 of the HIA.
Naturally, such judgment faces a twofold limitation. The one affects the Constitutional Court’s presumed power to gather evidence by virtue of the Constitutional Court Act. To make a pronouncement the Court needs to scrutinize the constitutional case file to see whether it can furnish evidence to show that the MPs’ debate has found that reasons that the law provides for suspension did exist. The other limitation precludes an assumption where the Court’s judgment goes beyond the circumstances that have inspired the National Assembly to vote for the decision challenged. Such a judgment should not unseat the National Assembly’s sovereign will to term the facts that it has established in a definite way.
Art. 84 of the National Assembly Standing Orders makes no provision to the effect that the Assembly’s decisions shall be motivated and thus indicates the reach of the supervision over such decisions. In the case under consideration the motives for the decision challenged are incorporated into the verbatim report of the Standing Parliamentary Health Committee’s sitting, into the verbatim report of the National Assembly’s floor session of 4 July 2013 and into the draft version of the decision. They all are an integral part of the decision challenged. The corpus of facts as discussed within the framework of the parliamentary procedures constitutes the motives that conditioned the National Assembly’s decision on the earlier suspension of Dr Plamen Tzekov’s term of office on grounds of Art. 19, para 4, item of the Health Insurance Act.
The NHIF Manager’s powers shall be viewed from the perspective of the HIA’s key objective that the NHIF Manager is bound to pursue by his operations, namely, that the compulsory health insurance guarantees affordable medical care to the insurance-covered individuals. That objective is the incarnation of Art. 52 of the Constitution. The Manager bears the ultimate responsibility for the NHIF management and has standalone functions that are different from the NHIF Supervisory Board’s functions and therefore his responsibility should not be mixed up with the collegiate body’s responsibility. The appreciation of the responsibility is manifest in the amendment which lets the National Assembly elect the NHIF Manager.
The position that the Standing Parliamentary Health Commission produced calls attention to Commission sittings where the Bulgarian Medical Association indicated that dialog was impossible as the NHIF Manager was reluctant to provide “clear and full information” about the successful course of the negotiation process. The 2013 National Framework Agreement was not concluded as a result of that. Examples are cited of methods that the NHIF Manager suggested and that breach the rights of competition “to the detriment of the scheme-covered individuals” as are failures of commitments of the NHIF Manager to make available, in a printed form, bills that resulted in the abolition of the Council of Ministers Decree 5/2013 on the pricing and quantification of medical services. It was noted that though the NHIF Manager had made a commitment during a hearing at the Parliamentary Health Committee to propose measures to restrain the NHIF budget overspending, he did not propose such at the Commission’s next hearing a month later. Some Health Minister’s letters and positions are cited to make it evident that the NHIF Manager systematically refused to give information to the Ministry.
Not last, it is the NHIF Manager’s noncompliance with Decision No 8/2012 on Constitutional Case No. 16/2011 that, in the view of the MPs, deprived the NHIF of BGN 41 million that could have been spent on health insurance payments. The principle of the state committed to the rule of law and Art. 12, para 6 of the Constitutional Court Act make the Constitutional Court’s decisions binding on all State institutions. This specific noncompliance by the NHIF Manager was not commented by Dr Plamen Tzekov either during the floor discussions or in the position that was presented to the Constitutional Court with a copy to him.
Dr Plamen Tzekov’s right to legal defense has been fully enjoyed within the parliamentary procedure. He participated in the Standing Health Committee’s hearings and in the floor discussions. There exist no other alternative forms of legal defense. His right to adduce defense arguments has not been infringed on. He was free to do that also in the position that he submitted to the Constitutional Court.
The suspension of the NHIF Manager’s tenure before its expiry projects the National Assembly’s understanding of the existence and nature of the violations that he had committed and the earlier suspension not just on formal legal grounds but also for the sake of the defense of public interest, according to the National Assembly’s sovereign judgment. That was based on a series of facts that show how the NHIF Manager ignored his duty while he did not defy any Constitution principle.
The National Assembly is entitled to weigh up facts and accordingly, judge whether violations of any sort have been committed. The National Assembly’s judgment shall not be overruled by the Constitutional Court.
In consideration of the above-stated the decision challenged is not seen as noncompliant with concrete regulations or with the Constitution-proclaimed principles.
B. Two Constitutional Court Justices found the motion unsustainable for reasons that follow:
Art. 149, item 2 of the Constitution reads that the Constitutional Court shall rule only on challenges to the constitutionality of the laws and other acts passed by the National Assembly. No authority of the Constitutional Court shall be vested or suspended by a law – the argument in Art. 149, para 2 of the Constitution. Considering Art. 120, para 1 of the Constitution which reads that the courts shall supervise the legality of the acts and actions of the administrative bodies it is evident that the cited texts are the constitutional buttresses of the separation of powers and of the functions and the bodies that execute them. This being the case, the Constitutional Court is to judge solely the constitutionality of the decision by which Dr Tzekov’s term of office was suspended before expiry for reasons as cited in the HIA. It is true that a hypothesis exists by virtue of Art. 84, item 8 of the Constitution of the delegation of a power by a law that provides for the length, motives for the election of the NHIF Manager and for the suspension of the term of office before expiry. Hence the question of the Constitutional Court’s supervision and of its scope which may reach beyond the legal grounds and the facts found that motivate the National Assembly’s decision of suspension of tenure before the date of expiration. It should be noted here that Art. 86 of the Constitution makes it binding on the National Assembly to make its actions conformant with the law, like any other state body, even if the action is a decision by which the term of office of an official is suspended before its expiry – according to the argument, among other, in Art. 4 of the Constitution. In that part the National Assembly was bound by the HIA when it voted the decision. The typical case of judicial supervision over decisions that suspend tenure before expiry encompasses the conformance of such decisions with the applicable law and with the procedure that guarantees that facts and circumstances are established in a proper way and that the Constitution-granted right to legal defense is enjoyed by the official whose tenure is discontinued before it expires. The judgment of the Constitutional Court in view of its above-described competence shall not overlie the reach and adequacy of the supervision by the relevant court over the legality of an adopted administrative act. This is so as though the NHIF Manager’s status and tenure are arranged in a law, that law does not contain any procedure-related provisions about powers that the Constitutional Court would have had as a regular court instance in the exercise of supervision over the adopted decision by which the tenure is suspended before its expiry. Regarding that part, an opinion is held that the reach of the Constitutional Court’s supervisory powers as seen in previous Constitutional Court decisions (Decision No. 14/1997 on Constitutional Case No. 11/1997 and Decision No. 11/2000 on Constitutional Case No. 13/2000) should be taken into account in forming the judgment of whether the motion in question is sustainable. Within the scope of its Constitution-granted powers the Constitutional Court should exercise supervision to weigh up the claimed severity of the violation of Constitution-proclaimed principles and values that the Lawmaker has abided by in the passage of the HIA. These will be cases where the decision has not been based on the appropriate legal grounds of suspension of tenure before its expiry, total unavailability of motives that arise from the facts and underlie the reason or accepted actual positions that are unrelatable to the reasons for suspension and also the cases where an official whose term of office is suspended against his or her will has been stripped of the right to legal defense, i.e. in the event of a violation of Art. 56 of the Constitution. Either of the mentioned hypotheses on its own or together with the other will constitute a violation of the principle that Art. 4 of the Constitution proclaims. This is so as in such cases it is evident that the reasons of appropriateness that are fundamentally a prerogative of the National Assembly have escalated into a violation of the Constitution-sanctioned principles and values that underlie the law.
What must be considered is the purpose of the acts of election and suspension that primarily are subservient to the public interest and where, in addition to all considerations certain ones like appropriateness as inspired by visions of strategies or the implementation of a certain policy are guiding the Lawmaker in the empowerment or divestment of an official as clearly worded in the provision of Art. 19 of the HIA that reads that the nominations and proposals for dismissal are made by the respective parliamentary groups. The National Assembly’s prerogatives are in this vein, viz. the prerogative to amend or abolish entirely or partially a law, including the section on the term of office for the sake of the implementation of strategies or programs that serve public interest. Therefore the case under consideration should not be treated as or reduced to a labor dispute where the official’s employment rights are a priority.
There can be no dispute on the case under consideration about the dismissal of Dr Tzekov from his post of the NHIF Manager the decision about which had been taken after a thorough examination, gathering evidence by the Health Committee, floor debates in which Dr. Tzekov had been given the floor to stand up for his work in the exercise of his functions and discharge of his duties to the extent of Art. 19, para 7 of the HIA and the conclusions made about existing violations, mainly omissions. It is evident therefore, that the motivation of the suspension of tenure before its expiry in a decision on the basis of Art. 19, para 4, item 3 of the HIA is not unsubstantiated. Given the specifics of the Constitutional Court proceedings and the inexistence of a Constitution-provided procedure of supervision over the legality of the National Assembly’s acts, the Court could not accept as proven other facts or prejudge on merit the correctness of the National Assembly’s assessment of the facts that motivated the Assembly to vote the decision challenged. In that part it will be inadmissible for the Constitutional Court to oust the Assembly’s assessment of the actual relevance of the circumstances that are seen as having the legal aspects of reasons for a suspension of tenure before its expiry. The same holds true of the Lawmaker’s assessment of what a systematic violation is. As this aspect is not explicitly defined in the Constitution and in the law it is a sovereign right of the National Assembly to define its positive substance in view of the state of facts. The same conclusion may be drawn about the next aspect which involved gross miscarriage by the NHIF Manager like neglect of obligations deriving from the Constitutional Court’s Decision No. 8/2012 on Constitutional Case No. 16/2011, the result being that the NHIF lost BGN 41 millions which had been earmarked for health insurance payments.
As the decision challenged is motivated by facts that have been ascertained by the National Assembly in the due way as these facts cover the aspects of the legal reasons in Art. 19, para 1, item 3 of the HIA regarding the suspension of the NHIF Manager’s term of office before its expiry, the Constitutional Court cannot accept the fact of the violation of the principle of the state committed to the rule of law. This is so because the overall activity to expose the facts involved Dr Tzekov who was given the chance to participate in the debates that preceded the voting and the approval of the decision. So he enjoyed his Constitution-sanctioned right to defense as per Art. 56 of the Constitution. The right to defense was further enjoyed when a group of MPs approached the Constitutional Court and asked that it turn down the decision that they saw as unconstitutional.
ІІІ. Four Constitutional Court Justices found the motion sustainable for reasons that follow:
А) On the admissibility of the motion:
The Constitutional Court ruled on that issue by a positive resolution of 24 September 2013. The Court acted on an initiative from a legitimate body as per Art. 150, para 1, alternative 1 of the Constitution and found the initiative compliant with the law-prescribed requirements of form and substance and against a parliamentary act that is subject to constitutional control. There followed no other factual or legal changes to lead to a different conclusion.
The new stance of inadmissibility expressed upon the pronouncement of the said decision that was the cause for the failure for a majority that is required for a fair settlement of the constitutional dispute on its merit was surprising to the Justices who therefore see a need to present further arguments to support the thesis that the motion is absolutely admissible and that there can be no reasons to dismiss it.
Art. 149, para 1, item 2 of the Constitution assigns the supervision over constitutionality to the Constitutional Court and seeks to deter the National Assembly and the President from the temptation to disregard the Constitution imperatives when they issue their acts in whatever form and of whatever substance. The Constitution gives no reason to differentiate between the different acts of these authorities (for instance normative or individual acts) and to exclude, on that basis, some of them from the reach of supervision over constitutionality. In that sense the Constitutional Court’s track record so far has been consistent – see Decision No. 13/1999 on Constitutional Case No. 9/1999; Decision No. 11/2000 on Constitutional Case No. 13/2000; Decision No. 3/2010 on Constitutional Case No. 18/2009.
It is true that from the perspective of compliance with the Constitution-enforced obligation of the State under Art. 56, sentence 1 read in combination with Art. 122, para 2 of the Constitution to guarantee that the person who the case affects has recourse to defense whenever rights and legitimate interests are impaired the situation is seen as deficiency of law. Regarding the person the appealability of the decision challenged, inasmuch as essentially it has the aspects of an administrative act, is, in fact, excluded from Art. 2, para 2, item 1 of the Administrative Procedure Code. In that context a question might arise concerning the violation of the entitlement to justice under Art. 6 item 1, sentence 1 of the Convention for the Protection of Human Rights and Fundamental Freedoms. It is absurd though to let an imperfection of the individual rights legislation serve as an excuse for even worse curtailment of rights by the overthrow of the supervision over constitutionality as the Constitution provides for. Such understanding would doom the idea of future codification of the individual complaint to the Constitutional Court. It should be borne in mind that in the inexistence of this avenue of an approach to the Constitutional Court the existing model of constitutional justice is focused directly on public interest which calls for the supreme institutions of power like the Parliament or the President to comply with the Constitution requirements when they issue all their acts, regardless of their form while the possible subsequent remedy for infringements on the individual rights of a citizen might be only an indirect consequence of the outcome of an institution-to-institution dispute that the public action of another subject of law has provoked. In the long run, the immediate problem that had to be solved by the decision on the case treated here is not the defense of Plamen Tzekov’s civil rights; it is the observance of the principles of the Constitution by the National Assembly.
B. On the tenability of the motion
The decision challenged does not contain juristic facts like the legal grounds on which it was taken; it contains only a description in legal terms of the suspension of the NHIF Manager’s term of office before its expiry – i.e. Art. 19, para 4, item 3 of the HIA.
The facts that, according to the decision, justify such suspension of the term in office before its expiry are expounded in the motives to the draft decision, in the form in which they were proposed to the National Assembly’s floor session upon its adoption. These facts are: а) disruption of the dialog between the professional organizations and the NHIF; b ) NHIF unilaterally forced decisions that concern the health system management and funding and that doom hospitals to bankruptcy and deprive citizens of normal affordable healthcare; c) the Manager’s reluctance to proceed with a NHIF budget adjustment in end 2012 to add BGN 50 million – a transfer that the Ministry of Health did not make – plus overpaid health insurance contributions; d) regulatory methods that were introduced from the first day of 2013 and that resulted in hospital budget cuts; e) the professional and patient organizations’ unwillingness to negotiate and work with the NHIF Manager.
These facts are further specified and completed in the National Assembly’s position on the case.
Unlike the debate on bills, the National Assembly’s Standing Orders (Art. 84) lets parliamentary decisions go unmotivated except in the event of the rejection of a report on the activity of an institution that, by virtue of law, the National Assembly elects entirely or partially (Art. 86, para 10, sentence 3 of the Standing Orders). A decision shall necessarily go with “the grounds” only in the possible opinion of the relevant lead committee to the Constitutional Court – Art. 88, para 2, sentence 2 read in combination with para 1, alternative 2 of the Standing Orders.
Therefore the opinion shall not contain motives that have not been expressed during the floor session to adopt the decision. If such exist they shall not be discussed in the judgment of the tenability of the challenge. Therefore reference to facts that have been brought up during the National Assembly’s floor session but have not underlain the motives of the decision by which the NHIF Manager was dismissed before the legitimate expiry of his term of office should not be a matter of discussion by the Constitutional Court in the judgment of the legality of the decision as they fall outside the legal grounds for the adoption.
The decision by which the NHIF Manager was dismissed before the legitimate expiry of his term of office was the instrument by which the National Assembly exercised its public transformation right. Like all rights it is individualized by the juristic fact or by the facts that have brought it up. Whether these exist is seen when the law is applied to the facts that are cited in the motives for the adoption of the decision. When these facts do not figure among the legal grounds for suspension of a term of office before its expiry, then the decision is illegitimate.
Art. 84, item 8, alternative 2 of the Constitution lets the National Assembly dismiss heads of institutions established by law. Art. 19, para 4, item 3 of the HIA gives the National Assembly the recourse to decision to suspend the NHIF Manager’s term of office before its expiry for systematic violations in the discharge of functions, failure to implement Supervisory Board decisions or allowing other persons to perform gross or systematic violations of the compulsory health insurance.
Facts are individualized by their content and by the time (a moment or a period) of implementation. In the motives to the decision challenged they are individualized in terms of time only in two of the circumstances that are claimed – the reluctance of the NHIF Manager to ask for NHIF budget adjustment “in end 2012” and the enactment of regulatory methods “in early 2013.“. Even if their individualization as facts is considered to be sufficient, they cannot constitute a “systematic violation” on the part of the NHIF Manager who shirked his duties. “Systematic” in the definition of all existing pieces of legislation stands for at least three violations and it is the definition to draw upon since the Health Insurance Act does not explain the meaning which is to be sought in other regulatory texts (Art. 37, paras 1 and 2 of Decree 883 on the application of the Statutory Instruments Act, promulgated, DV, No. 39/1974, last amendment, No. 46/2007), regardless of when the violations have been committed – in a definite or indefinite period of time (the only exception is the definition in the Animal Protection Act where two violations are sufficient to be termed “systematic”). The two violations cited in the motives to the decision, even if they do exist, are not systematic.
Moreover, the NHIF Manager is not vested with the direct authority over the NHIF budget adjustment. The Manager has only the authority to propose such adjustment to the NHIF Supervisory Board providing he has received the opinion of the Health Minister to who he has sent the proposition – Art. 19, para 7, item 3 of the HIA. However, that competence of the NHIF Manager, unlike his competence to propose the bill on the NHIF annual budget, is not bound. It is not operational autonomy as it is contingent on his judgment whether the adjustment, if any, is needed and resourced. Therefore, non-proposition of adjustment does not constitute desertion from duties in the sense of Art. 19, para 4, item 3 of the HIA.
The approval of what the motion terms “regulatory methods”, i.e. the methods concerning the estimates as to the quantities and the pricing, costing and payment of the medical services, are within the NHIF Supervisory Board competence – Art. 15, para 1, items 12 and 13 of the HIA to whom the NHIF Manager only proposes them – Art. 19, para 7, items 12, 13 and 16 of the HIA.
The remaining three circumstances that were cited as a justification for the suspension of the tenure before its expiry – namely the disruption of the dialog between the professional organizations and the NHIF, the NHIF unilaterally forced decisions that concern the health system management and funding and that doom hospitals to bankruptcy and deprive citizens of normal affordable healthcare and the professional and patient organizations’ unwillingness to negotiate and work with the NHIF Manager – have not been individualized in terms of the substance of the individual doings (action or inaction) or a system of such, nor in terms of time in order to be treated as facts of legal relevance. Inasmuch they are claimed as an outcome only, they remain completely unidentified and thus they cannot be termed desertion from duty on the part of the NHIF Manager.
The NHIF Manager’s powers are listed in Art. 19, para 7 of the HIA and an obligation to have a dialog with the professional associations is not among those. The NHIF Manager, together with the NHIF Supervisory Board members, meets the professional associations in the preparation of the National Framework Agreements (NIAs) (Art. 54, para 4 of the HIA) as equal to equals and not as a superior. Therefore no obligations of conduct concerning the content or the conclusion of the NIAs could be thrust upon the NHIF Manager in his capacity of NHIF Manager or as one of the NHIF representatives. The more so that in principle during the negotiation process the NHIF Manager is bound to look after the interests of the institution that he represents whereas, by definition, these interests may not concur with the positions of each of the other parties in the dialog.
The decisions concerning the health system management and financing “forced unilaterally by the NHIF” and not by the NHIF Manager have not been individualized in terms of time or substance. Therefore, they shall not be assessed as facts to which Art. 19, para 4, item 3 of the HIA may apply.
In conclusion, it is definitely agreed that the National Assembly’s decision about the suspension of Plamen Tzekov’s tenure as the NHIF Manager before its expiry conflicts flagrantly with the substantive law – Art. 19, para 4, item 3 of the HIA. The facts that might be deduced from the motivation of the decision are not any of those that are thoroughly enumerated as reasons for suspension in 19, para 4 of the HIA.
Art. 4, para 1, sentence 2 of the Constitution reads that the Republic of Bulgaria shall be governed by the Constitution and the laws of the country. This imperative is equally valid for the National Assembly as the Constitution reigns supreme. Hence, once the National Assembly passes a law that provides for an individual tenure, its suspension before expiry shall have to be justified only by reasons that are set forth in the law. These reasons may be changed subject to an amendment procedure and guaranteed independence, as heretofore, of the body (Interpretative Decision No. 13/2010 on Constitutional Case No. 12/2010).
The granting or dismissal of the motion on its merits is contingent upon the judgment whether the Constitution, in particular the Constitution-proclaimed principle of the state committed to the rule of law may allow the National Assembly to ignore the substantive laws that it has passed which, if it occurs, is tantamount to an outrage of the law. It is true isolated Constitutional Court acts have given a restrictive interpretation of the reasons of constitutional supervision (see Decision No. 13/1999 on Constitutional Case No. 9/1999). However, predominantly the Constitutional Court explicitly agreed that the principle of the state committed to the rule of law makes it imperative on all institutions of the State to conform the performance of their rightful functions to the law and this is fully valid for the National Assembly, among all other institutions, in conditions of parliamentary democracy. The thesis of the unsustainability of the motion may be defended with concrete quotations from the motives of relevant decisions. For instance, an excerpt from the motives of Decision No. 5/2007 reads thus: „...The imperative that the institutions of the State shall issue law-abiding acts derives from the principle of the state committed to the rule of law that Art. 4, para 1 of the Constitution proclaims...”; Decision No. 17/1997 on Constitutional Case No. 10/1997 reads thus: „...in the meaning of the Constitution the National Assembly shall make its decisions conformant with the laws that it has passed. Laws may be passed, amended, supplemented or abolished in the procedure that is established by the Constitution and not by a National Assembly’s decision that conflicts with a law that the National Assembly has passed. Fundamental Constitution principles of the state committed to the rule of law as proclaimed in Art. 4, para 1 of the Constitution have been betrayed...”; Decision No. 6/2004 on Constitutional Case No. 7/2004 reads thus: „... The Preamble of the Constitution and Art. 4, para 1 of the Constitution define the Republic of Bulgaria as a law-abiding state. That nature is prominently manifest through the submission of all state bodies and the rest of subjects of law to the Constitution-established order and the laws of the country and through the recognition and guarantee of the individual’s fundamental rights...”
Actually any doubt must be dispelled about whether the National Assembly’s omission infringes on the Constitution-proclaimed principle of the state committed to the rule of law, inter alia, in the specific case as the decision challenged suspended, before expiry, a law-established term of office in a public function, a matter treated in Interpretative Decision No. 13/15.12.2010 on Constitutional Case No. 12/2010 which is binding on all state bodies and on the Constitutional Court alike (see Art. 14, para 6 of the Constitutional Court Act). Item 1 of the operative part of the decision cited clearly and unambiguously imparts constitutional meaning to tenure both when it is established by the Constitution and by law and defines tenure as „...a fundamental principle of the establishment and function of the bodies of public power as in compliance with the separation of powers in a state committed to the rule of law...” The substance of the notion “tenure” was interpreted in such light. Moreover, item 2 definitively prescribes: „...Suspension of tenure established by the Constitution before its expiry may be based solely on the grounds that the Constitution provides for. If no reasons are provided for in the Constitution, then the reasons that a law provides for shall apply....” It seems no further argumentation is required to support the tenability of the motion. Therefore, when the National Assembly’s challenged decision violated the law, it violated, in addition, the principle of the state committed to the rule of law as per Art. 4, para 1 of the Constitution.