독일 감염병예방법상 연방보건부장관을 위한 명령권한위임의 연방국가적 한계와 권력분립 - 독일 감염병예방법 제5조 제2항의 명령위임규정들이 기본법상 연방과 주의 행정권한배분질서에 합치하는지 여부를 중심으로 -

Abstract

According to the order of distribution of administrative competences between the Federal and the States under the German Basic Law, the competence to execute federal laws rests with the states (Article 83 of the German Basic Law). In other words, the Execution of federal laws is the sole competence of the states. The German Federal Parliament(‘Bundestag’) has stipulated delegation provisions in the Infectious Disease Prevention Act, a federal law, to allow the Federal Health Minister to directly issue orders to respond to infectious diseases in order to respond uniformly and effectively to COVID-19 at the federal level (Article 5(2) of the Infectious Disease Prevention Act). The question is whether these delegation provisions in the Infectious Disease Prevention Act violate the order of administrative competence distribution between the federal and state under the German Basic Law. According to the view of the Federal Constitutional Court and the dominant view of the German constitutional academia, which interpret very strictly the order of competence distribution between the federal and state under the German Basic Law, the delegation provisions under the Infectious Disease Prevention Act seem difficult to avoid criticism that they violate the order of administrative competence distribution. To address these issues, the Federal Parliament could consider removing the mandate under the Infectious Disease Prevention Act and delegating the mandate to individual states instead. If the Federal Parliament amends the Infectious Disease Prevention Act as such, a problem will arise as to how it ensures the effectiveness and uniformity of the infectious disease prevention measures that the Federal Parliament originally intended to implement through an order from the Federal Minister of Health based on the relevant mandate under the Infectious Disease Prevention Act. To solve this problem, in accordance with the constitutional principle of federal loyalty (Grundsatz der Bundestreue), it is necessary for the Federation and the states to cooperate with each other on the types, scope, goals and timing of preventive measures against infectious diseases from time to time. In other words, it is necessary to delegate the authority of order to individual states to enforce infectious disease prevention measures, with the federal government having to serve as the control tower to promote the efficiency and unity of infectious disease prevention by coordinating the overall preventive measures implemented by the states.