AGENTURA HARMONY V.O.S. v. SLOVAKIA
Inadmissible
Corneliu Bîrsan;Egbert Myjer;Ineta Ziemele;Ján Šikuta;Josep Casadevall;Kristina Pardalos;Nona Tsotsoria
1. The applicant, Agentúra HARMONY v.o.s., is an unlimited liability company established under the laws of Slovakia with its head office in Nitra. It was represented before the Court by Ms G. Strýčeková, a lawyer practising in Nitra. 2. The Government of the Slovak Republic (“the Government”) were represented by their Agent, Ms M. Pirošíková. The facts of the case, as submitted by the parties, may be summarised as follows. 3. The applicant company supplied medical equipment to a hospital, which at that time was owned by and under the responsibility of the State. 4. The power of administration over the hospital and its ownership were later transferred by law (Law no. 446/2001 Coll.) to the self-governing region (samosprávny kraj) where the hospital is situated. 5. The hospital owned premises not used for its main function, which it let to third parties. 6. In about mid-2002 the hospital ceased paying the applicant, and later acknowledged its debt to the applicant in an amount equivalent to some 5,000 euros (EUR). 7. On 26 September 2003 the applicant company sued the hospital for payment of the above-mentioned amount. 8. On 21 January 2004 the Šaľa District Court (Okresný súd) allowed the action and, on 31 March 2004, the Nitra Regional Court (Krajský súd) upheld the District Court’s judgment following an appeal by the defendant. The judgment became final and binding on 29 April 2004. 9. On 7 May 2004 the applicant company applied for enforcement of the judgment under the Enforcement Code of 1995 (Law no. 233/1995 Coll., as amended). 10. In September 2004 the judicial enforcement officer (exekútor) decided that the enforcement should be carried out by means of attaching the rent collected by the hospital from the letting of the above-mentioned premises. 11. On 5 October 2004, by a decision of its council, the ownership of and power of administration over the hospital was taken over by the selfgoverning region, which also assumed the role of landlord in respect of those premises. 12. On 20 April 2005 the Constitutional Court (Ústavný súd) declared inadmissible a complaint made by the applicant company under Article 127 of the Constitution contesting the council’s decision of 5 October 2004 on the grounds that it had violated, inter alia, the applicant company’s right of access to court and to equal treatment in proceedings. 13. The Constitutional Court found that there was no indication of an interference with the applicant’s procedural rights and that the complaint was manifestly ill-founded. 14. By letter of 30 May 2005 the judicial enforcement officer informed the applicant company that the total amount of principal debt plus interest accrued for late payment and costs incurred totalled, at that time, the equivalent of some EUR 7,100, of which the equivalent of some EUR 875 had already been obtained from the defendant. 15. The judicial enforcement officer also informed the applicant company that the council’s decision of 5 October 2004 had made it impossible to continue attaching the rent pertaining to the premises in question, as these were no longer owned and let by the debtor. 16. The judicial enforcement officer further informed the applicant company that using other means of enforcement was not possible due to a temporary immunity from the enforcement of financial claims enjoyed by the hospital under Article 54a § 2 of the Health Insurance Code (Law no. 273/1994 Coll., as amended) and Section 102a of the Health Care Act (Law no. 578/2004 Coll., as amended). 17. On 26 September 2005, by a decision of its council, the selfgoverning region decided to merge hospitals under its administration into a new entity, an agency named the Obligations and Claims Administration (Správa záväzkov a pohľadávok – “the OCA”), with effect from 30 November 2005. The OCA was the legal successor to the hospital in question, and its purpose was to settle obligations and claims related to the functioning of the hospitals in the region. The OCA did not have the status of a health-care establishment and thus did not benefit from the bar to enforcement of claims against such establishments. 18. By letter of 26 January 2009 the enforcement office notified the applicant that the enforcement had been terminated as, on 22 December 2008, the applicant’s entire claim had been settled by the OCA. The applicant company’s legal costs and penalty interest for the debtor’s late payment of the principal debt had also been paid. 19. Article 127 of the Constitution (Constitutional Law no. 460/1992 Coll., as amended) provides: “1. The Constitutional Court shall decide complaints by natural or legal persons alleging a violation of their fundamental rights or freedoms ... unless the protection of such rights and freedoms falls within the jurisdiction of a different court. 2. If the Constitutional Court finds a complaint justified, it shall deliver a decision stating that a person’s rights or freedoms as set out in paragraph 1 have been violated by a final decision, specific measure or other act and shall quash such decision, measure or act. If the violation that has been found is the result of a failure to act, the Constitutional Court may order [the authority] which has violated the rights or freedoms to take the necessary action. At the same time it may remit the case to the authority concerned for further proceedings, order such authority to refrain from violating the fundamental rights and freedoms ... or, where appropriate, order those who have violated the rights or freedoms set out in paragraph 1 to restore the situation to that existing prior to the violation. 3. In its decision on a complaint the Constitutional Court may grant appropriate financial compensation to the person whose rights under paragraph 1 have been violated.” 20. The statutory bar to the enforcement of financial claims against healthcare establishments was laid down in different pieces of legislation and its duration, always intended to be temporary, was extended several times. The precise scope of the bar also varied over time. 21. The bar had its origin in Article 235 of the Enforcement Code of 1995, such Article being incorporated into the code by Law no. 280/1999 Coll. The bar was, in this implementation, intended to last until 31 December 2001. 22. Article 235 of the amended Enforcement Code of 1995 was repealed by the Constitutional Court by virtue of its judgment of 15 November 2000 (published in the Collection of Laws under no. 415/2000) with effect from 6 December 2000. The Constitutional Court found the bar unconstitutional because it created an unjustified difference between the treatment of healthcare establishments and other debtors. 23. With effect from 1 January 2003, a new statutory bar to enforcement of financial claims against health-care establishments was introduced into the Health Insurance Code by the operation of Law no. 671/2002 Coll. In particular, enforcement was not permissible against the financial assets and income of health-care establishments in so far as such monies were allocated for providing and maintaining health care and related services, nor against assets belonging to health-care establishments which were purchased out of funds deriving from the insurance premiums paid by the establishment’s users and which were indispensable for the running and maintenance of the establishment. 24. On 15 June 2004 a new bar entered into force by virtue of an amendment (Law no. 345/2004 Coll.) to the Health Insurance Code. It introduced a new section 54a to the code, stated to apply until 31 December 2004. Under sub-section 2 (d) of that provision, enforcement could not be aimed at attaching the property of health-care establishments obtained via insurance premiums or property to be used for providing health care. 25. In 2006 a new constitutional challenge to the bar, as it then stood, was brought by a group of Members of Parliament. It was accepted by the Constitutional Court to the extent that, in its ruling of 6 December 2006 (published in the Collection of Laws under no. 18/2007), it suspended the legal effect of the bar. However, the Constitutional Court has never ruled on the merits of the bar, as it expired while the constitutional challenge was pending. In its decision of 30 April 2008 the Constitutional Court nevertheless made a formal note of its 2000 ruling, considering it a part of its case-law. 26. The bar was extended for the last time until 31 December 2009 by the operation of Law no. 192/2009 Coll., which introduced a new section 102c § 2 to the Health Care Providers Act (Law no. 578/2004 Coll., as amended). On 31 December 2009 the bar expired and has ceased to exist with effect from 1 January 2010 onwards.