U-II-1/06

The postponement of the adoption and coming into force of a statute is not in itself contrary to the Constitution. The filing of a petition or request for a preliminary legislative referendum only entails that for a certain period of time and regarding a certain issue the National Assembly yields to the process of direct decision-making by the people as the holders of sovereign power. In reviewing the admissibility of referendum decision-making, the Constitutional Court must consider that referendum decisions must not be inconsistent with the Constitution.

 

The referendum request refers to a statute which envisaged special conditions for the transformation of a mutual insurance company into a joint stock company which provides supplemental health insurance and was as such established in accordance with the law (Vzajemna).

 

If the assembly of a company is not composed in accordance with regulations and does not reflect the actual structure of its members (insured persons in the case at issue) a certain part of the members cannot decide (either directly or through their representatives) on their (membership) rights and obligations which stem from the law or from the act on establishment and which pertain to them in the company. This entails their unequal treatment in the exercise of their rights in comparison with other members, to the effect of violating the right to equality before the law determined in Art. 14.2 of the Constitution, and consequently to interfering with their property rights which stem from their share in the company (Art. 33 of the Constitution).

The proposed transformation of Vzajemna would be carried out according to the provisions of the Insurance Act. This means that given the negative result of the referendum, Vzajemna can be transformed without the law regulating issues regarding its transformation which would consider the special manner of its founding and the role of the Health Insurance Institute of Slovenia (ZZZS) and its investment (the source of the funds for beginning of the operation of Vzajemna),. Thus, the postponement of the adoption and the non-entry into force (and in the event of a negative result in the referendum, even the prevention of the adoption) of the law which is to regulate also the property relations between Vzajemna and ZZZS in connection with its transformation into a joint stock company, could contrary to Art. 50 of the Constitution interfere with the property and financial position of ZZZS, and consequently also with the position of insured persons who pay contributions for mandatory health insurance.

 

The postponement of the adoption and entry into force of the law could entail unconstitutional consequences for both the circle of persons insured by Vzajemna who do not have or who have not had in the assembly of this company the possibility to elect their representatives, and ZZZS and the people it insures (the persons insured within the framework of mandatory health insurance).