FIRST SECTION
DECISION
Application no. 19746/23
ZOBOZDRAVSTVENI ZAVOD VERTAČNIK
against Slovenia
The European Court of Human Rights (First Section), sitting on 9 July 2024 as a Committee composed of:
Krzysztof Wojtyczek, President,
Lətif Hüseynov,
Erik Wennerström, judges,
and Liv Tigerstedt, Deputy Section Registrar,
Having regard to:
the application (no. 19746/23) against the Republic of Slovenia lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) on 11 May 2023 by Zobozdravstveni zavod Vertačnik (“the applicant institute”), which has its seat in Slovenske Konjice and was represented by Ms S. Marko, a lawyer practising in Maribor;
Having deliberated, decides as follows:
SUBJECT MATTER OF THE CASE
1. The application concerns an imposition of a fifteen-year limit on the duration of the applicant institute’s health-service concession which was initially granted to it for an indefinite time.
2. The applicant institute is a private institute providing dental care. On 24 March 2005 it was granted a concession to provide a public health dental service for an indefinite duration.
3. On 19 September 2017 the Slovenian Parliament adopted an amendment to the Health Services Act (hereinafter “the HSA” and “the HSA Amendment”), which entered into force on 17 December 2017. Its section 41 stipulated that all concessions for health services which had been granted for an indefinite period should be transformed into concessions valid until 16 December 2032 (that is, fifteen years from the HSA Amendment’s entry into force). The HSA Amendment further required the grantor to verify, before the expiry of the period in question, whether the need for concession with respect to a particular type of service pertained and, if so, to extend the period of validity of concession in line with the provisions of the HSA (for an additional fifteen years).
4. Pursuant to the HSA Amendment the grantors were required to issue new decisions setting out the above-mentioned limit on the concessions’ duration. In line with that, on 14 December 2018, the Slovenske Konjice Municipality issued a decision by which the duration of the applicant institute’s concession was limited to 16 December 2032 with a possibility of extension. The applicant institute challenged this decision on appeal. When this was unsuccessful, it used remedies before the Administrative Court, the Supreme Court and the Constitutional Court, relying on arguments similar to those put forward in its application to the Court.
5. On 14 December 2022 the Constitutional Court rejected the applicant institute’s constitutional complaint and its petition for review of constitutionality in a joint decision which concerned it as well as several other affected concessionaires (no. U‑I‑370/22 and others). Referring also to its earlier decision of 6 May 2021 (no. U‑I‑193/19), in which it had found that the impugned provisions of the HSA Amendment complied with the principle of the rule of law and the prohibition on the retroactive application of law, it further noted that public health-care entities could not be treated on an equal footing with concessionaires, which were private providers. The latter could provide public service only if the public authorities considered such provision warranted. The Constitutional Court furthermore noted that concessionaires were required to make the necessary investments prior to obtaining the medical licence and regardless of whether they were ultimately granted a concession to provide a publicly funded service. In addition, specific conditions as well as the rights and obligations of the parties were to be set out in a concession agreement.
6. The HSA Amendment was reviewed again by the Constitutional Court on 5 January 2023 (no. U-I-198/19). It found that in order to ensure fair competition, the extension of the concession would need to be based on a public call for tender.
7. Relying on Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1 to the Convention, the applicant institute complains that the impugned provisions of the HSA Amendment have put it in a disadvantaged position vis-à-vis the public health institutions since the latter can provide public health services indefinitely. It further complains that the provisions in question were arbitrary and that the uniform limitation on the duration of concessions did not take into consideration its property rights and related legitimate expectations in obtaining a reasonable revenue and securing its investments. Moreover, it claims that the Constitutional Court did not carry out a complete proportionality analysis of the disputed measure’s effects on its property rights.
THE COURT’S ASSESSMENT
8. The Court notes that, while the applicant institute relies upon Article 14 of the Convention in conjunction with Article 1 of Protocol No. 1, its main complaint of unjustified restriction of its property rights should be examined solely under Article 1 of Protocol No. 1. The Court further notes that the applicability of Article 1 of Protocol No. 1 extends, among others, to professional practices, their clientele and their goodwill. It will therefore proceed on the assumption that this provision applies to the present case (compare Könyv-Tár Kft and Others v. Hungary, no. 21623/13, §§ 31 and 32, 16 October 2018).
9. The applicant institute’s argument that as a result of the impugned legislative measure it could lose its concession and related clientele is to a certain extent based on speculation. However, the Court will assume that the contested fifteen-year limit imposed on the duration of the concession amounts to an interference with the applicant institute’s right enshrined in Article 1 of Protocol No. 1, consisting of a measure entailing control of the use of its property (see, mutatis mutandis, Könyv-Tár Kft and Others, cited above, § 41, and Buzescu v. Romania, no. 61302/00, § 88, 24 May 2005). Having said that, the Court finds the decisions of the domestic courts, including the Constitutional Court, which assessed the proportionality of the impugned measure, plausible. In particular, it has no reason to doubt that the measure in question pursued a public interest in, inter alia, promoting non‑commercial healthcare and ensuring fair competition between health-service providers. It further notes that neither the Convention nor its Protocols prevent the legislature from interfering with existing contracts (see Bäck v. Finland, no. 37598/97, § 68, ECHR 2004‑VIII).
10. As regards the balance struck between the competing interests, the Court would point out that the Contracting States have a wide margin of appreciation when passing laws in the context of a change of political and economic regime (see Valkov and Others v. Bulgaria, nos. 2033/04 and 8 others, § 96, 25 October 2011, and Bäck, cited above, §§ 53 and 54) and with respect to health-care policy where they are best placed to assess priorities, use of resources and social needs (see, mutatis mutandis, Hristozov and Others v. Bulgaria, nos. 47039/11 and 358/12, § 119, ECHR 2012 (extracts)). The Court sees no reason to find that the domestic authorities, which were guided by legitimate concerns related to provision of public health-care and fair competition, overstepped that margin of appreciation in the present case. In this connection, it also takes note of the considerable length of the period for which the concession was granted to the applicant institute and the fact that the contested change in the regime could have been anticipated, as explained by the domestic courts. Furthermore, the applicant institute does not in any way substantiate that a duration of concession longer than fifteen years would be indispensable to enable it to recoup concession‑related necessary investments or adapt to the change in the regime in question. Nor does it refute the findings of the domestic courts that the financial aspects of the concession could be further defined in the concession agreement.
11. In so far as the applicant institute complains of discrimination (see paragraph 7 above), the Court notes that there are considerable differences between concessionaires, which are private entities, and public health institutions, and does not find it established that they are in “analogous or relevantly similar situations” (see British Gurkha Welfare Society and Others v. the United Kingdom, no. 44818/11, § 62, 15 September 2016). Be that as it may, the Court finds that – for the reasons stated above (see paragraphs 9 and 10 above) – the alleged difference in treatment has in any case objective and reasonable justification in view of the wide margin of appreciation allowed to the State under the Convention when it comes to general measures of economic or social strategy. This margin likewise applies to the questions related to Article 14 of the Convention, read in conjunction with Article 1 of Protocol No. 1 to the Convention (see, among many other authorities, Carson and Others v. the United Kingdom [GC], no. 42184/05, § 61, ECHR 2010).
12. Accordingly, the applicant institute’s application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 12 September 2024.
Liv Tigerstedt Krzysztof Wojtyczek
Deputy Registrar President