Reflecții asupra legalității unor acte administrative cu caracter normativ emise de ministrul sănătății în perioada stării de alertă determinată de pandemia COVID-19
Reflections on the Legality of Some Normative Administrative Acts Issued by the Minister of Health During the State of Alert Determined by the COVID-19 Pandemic

Author(s): Silviu Dorin Şchiopu
Subject(s): Social Sciences, Law, Constitution, Jurisprudence, General Reference Works, Sociology, Health and medicine and law, Source Material, Administrative Law
Published by: Universul Juridic
Keywords: COVID-19 pandemic; state of alert; minister of health; normative administrative acts;
Summary/Abstract: Reflections on the Legality of Some Normative Administrative Acts Issued by the Minister of Health During the State of Alert Determined by the COVID-19 Pandemic in the Execution of Law No. 136/2020 on the Establishment of Measures in the Field of Public Health in Situations of Epidemiological and Biological Risk. In the situations of epidemiological and biological risk provided in Law no. 136/2020, if there is an imminent risk, the Minister of Health establishes by order - administrative act of a normative nature - the manner of application of the measures provided in the mentioned law. Thus, the measure of isolation in a health unit established by decision of the public health directorate will be based on the order of the Minister of Health issued for the concrete execution of the law. However, the judicial control of the normative administrative acts is exercised by the administrative contentious court only within the action for annulment, under the conditions provided by Law no. 554/2004, so that ministerial orders cannot be the subject of the objection of illegality. Therefore, persons in respect of whom the measure of isolation in a health facility has been instituted, although they can ask the court to annul the decision issued by the public health directorate, they will not be able to invoke a possible illegality of the order issued by the minister of health, the latter not being able to be the object of the exception of illegality. This is why it is essential that ministerial orders be issued in the letter and spirit of the laws adopted by Parliament. In order to illustrate the (un)lawfulness of normative administrative acts issued by the Minister of Health during the alert period, in this short study we will analyse the orders that imposed the social medical detention of persons infected with the SARS-CoV-2 virus after the entry into force of the Law on the establishment of measures in the field of public health in situations of epidemiological and biological risk.

• Details
• Contents