Romania, Romanian Constitutional Court, 16 February 2012 187D/2011

Identification of the case

• Non-discrimination (art. 21 CFREU)

• Art. 257, par. (1), (2)(f) and (3) of Law no. 95/2006 on the healthcare reform
• Articles 4, 16 and 56 of the Romanian Constitution

• Article 21 CFR

Summary of the case

The applicant criticised the provisions of art. 257, par. (3) of Law no. 95/2006 on the healthcare reform, in reference to art. 257, par. (2), point (f) of the same law on the basis that they are discriminatory, as they stated that contributions to the national health insurance fund must be deducted from any type of regular income. However, persons who obtained income from intellectual property rights, interests, rents or other taxable income were exempted from the contribution if they obtained regular income from another source from which the contributions could be deducted from.

The applicant considered that the mentioned provisions are not in compliance with articles 4, 16 and 56 of the Romanian Constitution. The author also claimed that the aforementioned provisions are in violation with art. 21 on Non-Discrimination of the Charter, art. 1 on the General prohibition of Discrimination of Protocol 12 of the ECHR and also art. 2 of the Council Directive 2000/78/EC and also art. 2 of the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. The applicant claimed that within the criticised provisions, there is no absolute rule used for calculating the contribution of the entire income of one person, but only the rule to contribute, a fact confirmed – in light of the exception of unconstitutionality – by the exceptions underlying in the articles that are invoked as unconstitutional by the claimant.

A ruling of unconstitutionality with regard to art. 257, par. (3) of Law no. 95/2006 on the healthcare reform, in reference to art. 257, par. (2), point (f) of the same law on the basis that they are discriminatory.

The Constitutional Court started by reaffirming that, according to art. 257(1), all insured persons were obliged to contribute monthly to the national health insurance fund. The Court went on to state that paragraph (3) creates the obligation to pay the contribution for all types of regular income, with the exception being in paragraph (2)(f) (which the applicant claims is discriminatory), namely, persons who obtained income from intellectual property rights, interests, rents or other taxable income, as their contribution to the national health insurance fund would be deducted from their regular income from another source.

The Court then stated that the purpose of this exception was not the creation of a more favourable regime for the persons who obtained income form one of the aforementioned sources in paragraph (2)(f), but on the contrary, the purpose was to ensure the payment of the contribution with regard to certain sources of income which, generally, are not covered by this obligation. The Court justified this by reference to the nature of these sources of income, which is aleatory as the income is not constant and stable as would be if it resulted from a normal profession. Thus, the Court determined that the criteria employed by the lawmakers with regard to these sources of income were not based on social status or wealth of individuals, but on their inherent characteristics irrespective of the individuals which obtain them. The Court concluded that the claim of the applicant that the rules were discriminatory and thus unconstitutional was unfounded.

Role of the Charter and role of the general principles on enforcement

The Charter was relied on by the applicant in the claim that the healthcare reform was discriminatory, but the Constitutional Court did not explicitly mention the Charter itself.

Article 4(2) of the Romanian Constitution - Romania is the common and indivisible homeland of all its citizens, without any discrimination on account of race, nationality, ethnic origin, language, religion, sex, opinion, political adherence, property or social origin.

Article 16(1) of the Romanian Constitution - Citizens are equal before the law and public authorities, without any privilege or discrimination.

Article 56(1) of the Romanian Constitution - Citizens are under the obligation to contribute to public expenditure, by taxes and duties.

The Charter (in particular Article 21 thereof) was one of the instruments invoked by the applicant as part of the claim for a ruling of unconstitutionality. However, the Constitutional Court did not make any reference to the Charter directly in its reasoning.

Additional notes on the decision

The legislation was not deemed to be unconstitutional, and was therefore not subject to reform.