Published on 21 October 2024
FOURTH SECTION
Application no. 18211/22
CABINET MEDICAL MEDICINĂ GENERALĂ
DR. MĂRGINEANU ALEXANDRU-VALENTIN
against Romania
lodged on 4 April 2022
communicated on 4 October 2024
SUBJECT MATTER OF THE CASE
The application was lodged by a physician on behalf of his private individual medical practice (the applicant association). It concerns a difference in treatment among individual private medical practices concerning the possibility to continue working via contracts that they sign with the Health Insurance Fund (which allows their patients to benefit from third-party payment of medical costs) after physicians that own and run the practice, reach the statutory retirement age. Such an option was open only to private medical practices established in rural areas (Article 391 of Law no. 95/2006 on the reform of the public health sector) unlike those, such as the applicant association, operating in an urban area.
The discrimination action lodged by the applicant association was dismissed by a final decision of 7 December 2021 of the Timişoara Court of Appeal, which reiterated that, in the light of the Romanian Constitutional Court (“the CCR”) decisions of principle nos. 818, 819, 820 of 3 July 2008 (see Ádám and Others v. Romania, nos. 81114/17 and 5 others, § 14, 13 October 2020), the power to set aside a law deemed discriminatory or contrary to the Convention was exclusively reserved to the CCR.
The applicant association complains of discrimination, relying on Article 1 of Protocol No. 12 to the Convention, as well as on Article 14 of the Convention taken together with Article 1 of Protocol No. 1 (raised in substance).
QUESTIONS TO THE PARTIES
1. Has the applicant association exhausted all effective domestic remedies, as required by Article 35 § 1 of the Convention? In particular, and having regard to the above-mentioned decisions of the Constitutional Court of 3 July 2008, was the applicant association required to challenge before the Constitutional Court the constitutionality of Article 391 of Law no. 95/2006 on the reform of the public health sector in the specific circumstances of the case, bearing in mind the findings of the Timişoara Court of Appeal in its final decision of 7 December 2021 concerning the scope of the power to set aside discriminatory laws (see Ēcis v. Latvia, no. 12879/09, § 49, 10 January 2019)?
2. Has the applicant association suffered discrimination on account of its registered seat (urban area), contrary to Article 14 of the Convention read in conjunction with Article 1 of Protocol No. 1 or to Article 1 of Protocol No. 12 to the Convention, given the impossibility, unlike medical practices situated in rural areas, to conclude a contract with the Health Insurance Fund and continue operating after the physician, who owned and ran it, reached the statutory retirement age (see, mutatis mutandis, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 70, ECHR 2010, Aleksandr Aleksandrov v. Russia, no. 14431/06, § 22, 27 March 2018, or Baralija v. Bosnia and Herzegovina, no. 30100/18, § 47, 29 October 2019)?