DECISION No 3 OF 13 MARCH 2007 ON CONSTITUTIONAL CASE No 2/2007
The case relates to Art. 149, para 1, subpara 2 of the Constitution.
The proceedings were instituted on 24 January 2007 following a challenge of 53 Members of the 40 th National Assembly of the constitutionality of Art. 55, para 3 of the Health Insurance Act (HIA) as created by § 13, item 3, littera "а" of the Transitional and Concluding Provisions of the National Health Insurance Fund Budget Act (NHIFBA) of 2007 (DV, No 105/2006).
The challenge alleges that § 13 (in the original draft - § 11) of the Transitional and Concluding Provisions of the NHIFBA of 2007 which creates a new paragraph 3 in Art. 55 of the HIA was passed by a voting procedure that was noncompliant with Art. 88, para 1 of the Constitution. The text referred to reads that bills shall be read and voted twice, during different sessions whereas Art. 55, para 3 received a third vote at the session on 14 December 2006 on a proposition from the Parliamentary Budget and Finance Committee, having been approved by a second vote at a preceding session on 13 December 2006.
To rule, the Constitutional Court considered:
The claimant challenged the constitutionality of Art. 55, para 3 of the HIA based on the breach of voting procedure as defined in Art. 88, para 1 of the Constitution and providing that bills shall be read and voted twice during different sessions and not on the basis of the contents of the text. Therefore, the Constitutional Court based its judgment on the interpretation of the provision and its compliance with the voting procedure in the passage of the challenged legal text.
The prescription of Art. 88, para 1 of the Constitution is imperative owing to its procedural nature which calls for strict interpretation and application. The grammatical interpretation leads to this characteristic in view of the imperative mood that was employed in the formulation. This conclusion is also supported by the logical interpretation of its text, which reads that only by way of exception the National Assembly may resolve to hold both ballots during a single session. The comparison of para 1 and para 2 of Art. 88 is yet another argument in support as all other National Assembly resolutions, declarations and addresses shall be passed with one ballot – Art. 86, para 1 of the Constitution, i.e. the procedure of lawmaking is exceptional due to the nature and importance of the matter that the law treats. The idea is to ensure in-depth discussions and passage of laws and to preclude haste and improvisation in the legislating process. The provision of Art. 88, para 1 of the Constitution is the norm of validity of the lawmaking process and any breach of this norm will make the piece of legislation that is an issue of this process inconsistent with the Constitution.
The first voting in general on the 2007 draft NHIFBA took place on 28 November 2006; at the sessions on 12, 13 and 14 December 2006, the second voting, the draft NHIFBA was voted paragraph by paragraph. On 13 December 2006 there was a discussion and voting of § 13 (ex § 11) of the draft NHIF Budget Act and a concluding provision was inserted which is the challenged para 3 of Art. 55 of the HIA. The proposition from the movant, the Council of Ministers, was approved in principle by the Parliamentary Budget and Finance Committee and was worded thus:
§ 11. “The following amendments shall be made to Art. 55:
“a) new paragraphs 3 and 4 are created:
“para 3. In the failure to negotiate the National Framework Agreement by 15 December of the current year, from 1 January of the next year:
“1. the previous framework agreement under Art. 55, para 2, subpara 3 shall remain in force;
“2. the amounts of services, prices and modes of service payment as defined by Art. 45, para 2 shall now be determined by the NHIF Managing Board;
“3. the NHIF Managing Board shall set the conditions that the health service providers must meet, the contracting procedure and any other conditions under Art. 55, para 2 ...”
The Parliamentary Committee's report did not side with MP Borislav Kitov who asked for an amendment to Art. 55, para 3 of the HIA to the effect that the phrase “until the National Framework Agreement is signed” be attached right after “from 1 January of the next year”. The Committee did not support the proposition of MP Atanas Shterev, viz. the part which proposed that Art. 55, para 3 be redrafted to read: “a new paragraph 3 is created which reads thus: ‘In the event of failure to sign a new framework agreement and a new framework agreement does not enter into effect before the end of the calendar year, the old framework agreement shall remain in effect after 1 January of the next year as long as a new framework agreement is signed and becomes effective and the individual medical service costs shall be adjusted by an adjustor which is the quotient of the new NHIF Budget costs divided by the preceding NHIF Budget costs for the respective types of health insurance payments. ”
During the second voting on 13 December 2006 the propositions of both MPs were accepted: Borislav Kitov's proposition was accepted during the first and the second vote as per Art. 58, para 2 of the National Assembly Standing Orders; Atanas Shterev's proposition was initially rejected and later accepted. Because of the differences on the wording of the text on both propositions, the MPs voted that the consideration of the final text for paragraph 3 be postponed for the next session and assigned that the Committee consolidate the two propositions.
The session on 14 December 2006 approved the bill; however, the Committee reported its proposed redrafted version, which did not incorporate the two MPs' propositions that had already been accepted. The Committee's version thus proposed was put to vote and approved and became the text of the paragraph challenged though it had been voted twice and incorporated Kitov's and Shterev's propositions. The Constitutional Court judged that a third voting of a text which repeats without much substantial change the original proposition and which fails to incorporate the two MPs' propositions that have already been accepted was impermissible.
As it was, the National Assembly approved the two MPs' propositions. Hence, there had been no need to put to vote the Committee's proposition, which repeats without much substantial change the movant's proposition. The new voting of the same provision with different contents during the session on 14 December 2006 does not constitute part of the second voting intended to consolidate the finalized text. In fact a new text was proposed which has to be passed in a new legislating process and voted twice after the promulgation of paragraph 3 of Art. 55 of the HIA.
The conclusion to make is that the voting on 14 December 2006 was in contravention to Art. 88, para 1 of the Constitution. The legislating process for paragraph 3 of Art. 55 of the HIA had been discredited. Therefore the text in question must be declared noncompliant with the Constitution.
Председател: Румен Янков