Case 838

Decision No. 838 of 24 June 2010
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An explanatory statement challenged certain provisions of the Law No. 95/2006 on the Health Sector Reform (the “Health Law”) and the Governmental Ordinance No. 92/2003 on the Tax Procedure Code (the “Government Ordinance”) as being unconstitutional under the Romanian constitution (the “Constitution). These provisions provided for mandatory social security contributions and “[a]lthough allowing the functioning of an alternative Health Insurance System, the challenged provisions do not enable citizens to choose the one considered most convenient. [The explanatory statement] also shows that although the rights are acquired as a result of payment of contribution to the Health Insurance System are equal, the contribution paid for acquiring these rights is uneven.”

The Government and lower courts considered the unconstitutionality objection ungrounded and the question was referred to the Constitutional Court.

The Court noted that in its prior 2007 and 2009 decisions it had held that the challenged provisions were constitutional vis-à-vis similar challenges to their constitutionality.

In these previous decisions the Court had held that:

(a) the challenged provisions in Art. 208 of the Health Law (setting forth the mandatory nature of participation in Social Health Insurance) “are in fact an expression of constitutional provisions governing the protection of health and of the provisions that enshrine the State’s obligations to ensure social protection of its citizens” and did not violate Article 23 of the Constitution (regarding individual freedom) because “compliance with citizen’s obligations under the law currently in force cannot be regarded as a violation of individual freedom and personal security”;

(b) the challenged provisions in Art. 257 of the Health Law (concerning the amount of the monthly contribution per policyholder, expressed as a set percentage of income) were constitutional because it was reasonable for contributions to vary and such difference was justified by the “objective situation” of persons with higher income and “by the principle of solidarity and subsidiarity in the collection and use of funds applicable in relation to social security and health insurance. The Court further held that ‘the constitutional principle of fair distribution of the tax burden for the bearing of public expenditure implied the differentiation of the contribution of persons who realize more income”;

(c) the challenged provisions in Art. 215 of the Health Law (obliging employers, employees, persons performing liberal professions and independent workers to contribute to Social Health Insurance) were constitutional;

(d) the challenged provisions in Art. 259 of the Health Law (obliging persons who are in arrears on their policy contribution to pay the monthly statutory contribution calculated on their taxable income and accessory tax obligations) and Art 91 of the Government Ordinance (limiting the Taxation Body’s right to establish tax obligations to 5 years, or as otherwise provided by law) were constitutional because compliance with the constitutional requirements regarding the protection of the public interest justified the privileged position of the state’s claim and because the law did not act for the future, but rather merely required payment of health insurance contributions past due.

As the Court found there were no new elements to the present case, it held that its past decisions were still valid.

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