The case was filed on 28 December 2006 following a challenge of fifty-four Members of the 40 th National Assembly of Arts. 4 and 5 of the National Health Insurance Fund 2007 Budget Act (DV, No 105/2006), the claim being that these were dissonant with Art. 52, para 1 of the Constitution.
To rule, the Court deemed it should stick to a definite sequence: first, it should interpret the Constitution, in particular its Art. 52, para 1; second, it should interpret the challenged texts of the NHIF Budget Act; third, it should make a conclusion whether these texts contravene the Constitution; fourth, it should reply to the arguments of the MPs and of the Bulgarian Union of Medical Doctors.
I. Art. 52, para 1 of the Constitution is part of Chapter Two “Fundamental Rights and Duties of Citizens” and reads thus: “Citizens shall have the right to medical insurance guaranteeing them affordable medical care, and to free medical care in accordance with conditions and procedures established by law.”
Chapter Two enumerates various fundamental rights. Interference on the part of the state is intolerable with respect to certain rights like the right to life, the right to personal freedom and inviolability, privacy, freedom of thought and choice of religion. Unlike these rights the right that Art. 52, para 1 of the Constitution cites belongs to the category of social rights. What is typical of them is that they are not universal to cover all citizens (protection of mothers, protection of children uncared for; care for elderly people who have no relatives; in the case in question the text concerns only people who need healthcare). Another characteristic of these rights is that they do not enjoy direct court protection.
Such a characteristic of rights does call for interference on the part of the State. This explains why the Constitution provides that health insurance and medical care is subject to procedures established by law.
II. Art. 4 of the NHIF Budget Act reads that the National Health Insurance Fund shall determine the number of prescribed specialized medical activities and the cost of the diagnosis referrals on a quarterly basis. Art. 5 of the NHIF Budget Act vests the NHIF with the power to determine the total cost of the clinical paths by the health service providers on a monthly basis.
The NHIF Budget Act is in fact an expenditure schedule. Its content cannot be related to the conventional definition of a law. Therefore, to determine the meaning of the challenged texts the general regulatory framework of health insurance and the public relations that this frame involves must be borne in mind.
It is necessary therefore to discuss the general principles and objectives as codified in the Health Insurance Act from which the NHIF 2007 budget derives and specifically its Art. 4. The text in question guarantees free access of the persons covered by the medical insurance scheme to a package of health services that are predefined in terms of type, extent and size and the freedom to choose a service provider from among those who have a contract with the NHIF. The adjective “predefined” stands for “what' and “how much”. If the idea had been to codify unrestricted access to healthcare the subordinate clause “that are predefined in terms of type, extent and size” would be irrelevant.
III. The above clarification of the Constitution provision and seeing how it correlates with the NHIF Budget Act texts leads to the conclusion that the texts are not anticonstitutional.
First, the NHIF Budget Act does not ignore the health insurance principles as laid down in Art. 52, para 1 nor does it overlook the healthcare in whatever form. Second, the judgment of any budget-related act must bear in mind that the spending column is what the national economy can afford. Any withdrawal of a budget act will entail a change of the revenue and expenditure side items that have been approved by a Government decision and that are beyond court control. Third, the piece of legislation in question has general application and does not cover a certain category of patients or activities; its scope of application is nondiscriminatory.
Legally speaking equality means that the law provides for a nondiscriminatory treatment of people who are equal before the law. The NHIF Budget Act does not contain any provisions of discriminatory or privileged treatment of persons in need of healthcare. In conclusion, social rights are difficult to realize, so the conduct of a government will deserve praise or censure depending on how this government meets or fails to meet its responsibilities to organize health insurance and healthcare.
In view of what has been stated above, the challenge is not sustainable.
The major provisions are not in contravention to Art. 19, para 2 of the Constitution.
The NHIF is a legal entity established by a special act. The NHIF is not faced by a ceiling of solvency, rules of transformation, termination, winding up and insolvency. The NHIF is not allowed to be a stakeholder in hospitals. The NHIF is not a profit-making institution; the Fund's responsibility is health insurance and the allocation of the contributions paid by the insurance covered persons and of the subsidies to health service provision, which has to be conformed to the restraints. This is not to be defined as business in the meaning of Art. 19, para 2 of the Constitution.
The Union of Medical Doctors claims that the NHIF is a monopolist on the market. It has to be noted there that the Competition Act cannot justify a deletion of Art. 4 and Art. 5 of the NHIF Budget Act as the NHIF does no business as per the latest legislation.
The Bulgarian Union of Medical Doctors finds the texts challenged to be noncompliant with Art. 17, paras 1 and 3 of the Constitution and suggests that the proprietary right be given a broad interpretation by which the NHIF Managing Board being free to reduce the agreed clinical paths costs affects the proprietary rights of the hospital service providers. This postulate is not precise for whatever the treatment of the proprietary right, this right presupposes available possessions and does not presuppose lost future earnings or consequences of contracts that have not been honored.
V. Regarding the quotation by the Members of Parliament of the Supreme Administrative Court Decision: the MPs believe that the shortage of medical referrals is tantamount to a compromise of the principle of free access to specialized outpatient treatment, medical diagnosis and inpatient treatment.
It is evident that the Constitutional Court's Decision and the Supreme Administrative Court's decision on Administrative Case № 3696 of 2006 diverge in their conclusion. In this case the minor prerequisite of the Constitutional Court's conclusion is Art. 4 of the Health Insurance Act, which is the major prerequisite of the Administrative Court's conclusion and their interpretations diverge.
The interpretations of the Constitutional Court and of the supreme courts are acts of will. The will is a product of the spirit and cannot be right or wrong. This is the difference between the court interpretations and the interpretations of law. The latter are descriptive and their reliability can be disputed whereas the interpretation of the court is binding – “it is what it is”.
In the long run it is a question of the correlation between the rule of law and the rule of the Constitution. A contradiction, if any, is to be overcome by a legal process.