STA, 27 December 2018 - The Constitutional Court has annulled the part of the health services act which stipulates that concessionaires should spend the surplus of revenue over expenditure for the performance and development of healthcare. The court agreed this encroached on the legal position of the petitioners and on their right to free business initiative.
The annulment, announced on Thursday, is related to the part of article 3 of the act which regulates the use of surplus generated by private companies and physicians with licenses to perform public healthcare services.
It says that public healthcare service "is being performed as a non-commercial service of general importance in a non-profit way, with the surplus of revenue over expenditure being spent on the performance and development of healthcare services."
The petition for the constitutional review of the act was filed by the Association of Private Practitioners and Dentists of Slovenia at the end of December 2017.
"This is only the beginning of a long period that will see us winning the battle in court and proving to the government that the concepts it advocates are not what the patients or those working in healthcare would deserve," the association's head Igor Dovnik said in response.
The Medical Chamber also welcomed the decision as confirming the provision harmed public services.
The chamber expects the court will also annul other contentious provisions in the act, in particular those limiting the scope of work for young doctors and for doctors employed both in private and public clinics, as well as provisions retroactively affecting already awarded concession licences.
As it received the petition, the Constitutional Court said that the provision limited the concessionaires and directly encroached upon the legal position of the petitioners.
The Constitutional Court said that the introduction in the national legislation of the term non-commercial service of general importance, which is a term in the EU law, did not mean that a public healthcare provider from the aspect of national law is no longer a non-commercial service.
"The term non-commercial public service under the Slovenian law is wider than the term non-commercial service of general importance under the EU law," the constitutional judges wrote.
When the amendments to the act were being adopted in parliament, reservations were also expressed by the parliamentary legal service, which wondered whether the definition of healthcare service as a non-commercial service of general importance was compliant with EU case law.
It had also noted that the Slovenian legal order did not define the term non-commercial service of general importance.
The Constitutional Court also assessed the provision from the aspect of the right to free business initiative, as it stipulates that public service should be non-profit and that surpluses from the operations should be kept in the public service.
"By preventing private entities from using the surplus from the activity for their personal needs, the legislator actually turned them into a non-profit legal form," it added.
"Limiting the freedom to dispose of the surplus very intensively narrows down the field of entrepreneurial freedom of private entities and encroaches upon their business initiative."
According to the court, such a measure is surely in the public interest to provide universal access to public healthcare services, but such an intensive limitation undermines one of the key incentives to perform the concession service.
As the reviewed encroachment upon the human right to free economic initiative outweighs the public benefit from it, the court has annulled the provision.
The association had also challenged article 42 of the act, which deals with the awarding of concessions and says that a concession is not a subject of inheritance, sale, transfer or any other form of legal transaction.
The court has ruled unanimously that the provision is not in violation of the Constitution. It said that a "concession to perform non-commercial public service is a right and not an authorisation in the sense of the law of obligations".
Asked by the STA to comment on the ruling, the Health Ministry said that it would comment once it received and examined the 26-page document.
