Developments in Swedish Constitutional Law: The Year 2016 in Review

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Editor’s Note: Today we publish the 2016 Report on Swedish constitutional law, which appears in the larger 44-country Global Review of Constitutional Law, now available here in a smaller file size for downloading and emailing.

–Thomas Bull, Justice of the Supreme Administrative Court, LL.D., Associate Professor (docent) and former Professor (full) in Constitutional Law, Uppsala University, and Anna Jonsson Cornell, Professor (full) in Comparative Constitutional Law and Associate Professor (docent) in Constitutional Law, Uppsala University.

I. Introduction

Politically, the migration situation in Europe played a large role in Swedish politics throughout 2016. Several of the measures adopted by the Swedish Parliament and Government in order to cope with the situation have constitutional implications, touching upon, for example, border control and the division of powers between the state and municipalities. The impact of the new EU data protection regime on Swedish law has also been devoted a lot of attention, most recently as a result of the decision by the CJEU on December 12, 2016, in the Tele2 case.

Sweden is a parliamentary democracy, the Instrument of Government (IG) (Regeringsformen), 1:1, 4, 6, and a unitary state with a constitutionally protected local self-government. The power and status of local authorities are regulated in the constitution (IG 1:1(2), ch. 14), although the legislature has explicitly abstained from laying down a constitutional definition of the scope and meaning of local self-government.[1] The local authorities’ taxation right (IG 14:4) together with the statement in IG 14:2 that local authorities are responsible for local and regional matters of public interest based on the principle of local self-government, is the primary expression of local self-government. All matters concerning the competence and responsibility of local authorities, including principles concerning the organization and working procedures of local authorities together with local taxation, must be regulated by an act of law (IG 14:2, 8:2(3)). An explicit reference is made to the principle of proportionality in IG 14:3 which states Any restriction in local self-government should not exceed what is necessary with regard to the purpose of the restriction. Local authorities have no regulatory powers based on the constitution; a delegation from the Parliament (Riksdag) is necessary. Such a delegation can be direct from the Riksdag to local authorities (IG 8:9) or indirect via the Government (IG 8:10).

II. The Constitution and the Courts

The Swedish court system is composed of administrative courts and courts of general jurisdiction. There are also a number of specialized courts such as the Labour Court and the Patent and Market Courts but they will not be dealt with here. Our focus will be on the case law of the Supreme Court (Högsta Domstolen (HD))[2] and the Supreme Administrative Court (Högsta förvaltningsdomstolen (HFD)). Sweden does not have a constitutional court. Judicial review is decentralized and exercised only in concrete cases.[3] According to IG ch. 11 art. 14, a court shall not apply a provision that conflicts with a provision of fundamental law or other superior statutes. The same applies if a procedure laid down in law has been set aside in any important aspect when a provision was adopted. Should a court find such a violation, that specific provision will not be applied in that particular case. Swedish courts cannot declare a rule null and void. In addition, public bodies exercise judicial review, IG 12:10.

At the latest reform of the Instrument of Government (2010), IG 11:14 was changed. The former requirement that any violation of a statute by, for example, a regulation, had to be obvious for the latter to be declared non-applicable was removed. The “obvious-rule” served to protect the prerogative of the legislature. The new IG 11:14 para. 2 states that “In the case of review of an act of law under paragraph one, particular attention shall be paid to the fact that the Riksdag is the foremost representative of the people and that fundamental law takes precedence over other law”. As a result of Sweden being a parliamentary democracy, the role of courts and hence their exercise of judicial review has been comparatively limited historically. However, the Swedish EU-membership and the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) becoming Swedish law in 1995 changed the setting. More than 20 years later it is clear that the role of Swedish courts in both constitutional law issues and otherwise has been strengthened in relation to the legislature.

On the issue of constitutional interpretation, Swedish courts will usually give greater weight to the preparatory works of the constitutional documents, such as the Government’s proposal of a bill to Parliament and the Parliament’s written report on such a proposal. This is still the case in most areas of constitutional interpretation. However, recent case law has shown willingness for a more dynamic approach when it comes to issues that touch upon the protection of constitutional rights and when there are obvious lacunas in the legislation. For example, a violation of a constitutional right has been found to give the individual concerned a right to economic compensation through tort-law even when no clear legal basis for such a right exists in the legislation on torts or in the constitution.[4] If this extensive application of tort-law in connection with constitutional rights is a more general trend or more due to the very special circumstances in the cases in point remains to been seen. One important question concerning methods of constitutional interpretation is the status of the principle of proportionality within the review exercised by administrative courts. Recent case law leads to the conclusion that the space for reviewing administrative decisions’ proportionality is determined by the law.[5] If the law leaves no room for proportionality assessments it will not be possible to make such an assessment.[6] Taken together one could argue that this weakens the principle of proportionality as a constitutional principle to be applied by the courts.

III. Constitutional Controversies

On December 21, 2016, the CJEU delivered its preliminary ruling in the Tele2 Sverige AB v. Post- och telestyrelsen case.[7] The ruling set off an intense and lively debate in Sweden on the relationship between national law and EU law, on the one hand, and how the ruling of the CJEU in Digital Rights Ireland and Others (C‑293/12 and C‑594/12) should be interpreted, on the other hand. The Swedish request for a preliminary ruling was made in the proceeding concerning an order sent by Post- och telestyrelsen (PTS) to Tele2 Sverige requiring the latter to retain traffic and location data in relation to its subscribers and registered users. The request concerned the interpretation of Art. 15(1) of Directive 2002/58/EC of the European Parliament and of the Council of 12 July 2002 concerning the processing of personal data and the protection of privacy in the electronic communications sector (OJ 2002 L 201, p. 37), as amended by Directive 2009/136/EC of the European Parliament and of the Council of 25 November 2009 (OJ 2009 L 337, p. 11), read in the light of Articles 7 and 8 and Article 52(1) of the Charter of Fundamental Rights of the European Union. As a result of the ruling in Digital Rights Ireland and Others (C‑293/12 and C‑594/12), Tele2 Sverige informed the PTS that it would cease, as from 14 April 2014, to retain electronic communications data covered by the Electronic Communications Act, and that it would erase data retained prior to that date. On April 29 the same year, the Ministry of Justice appointed a special reporter with the main task to assess Swedish data protection laws in the aftermath of the Digital Rights Ireland and Others decision. The reporter found that Swedish legislation on data retention was in congruence with EU law and the ECHR.[8] As a result, the PTS ordered Tele2 Sverige to start the retention of data again in accordance with national legislation. Tele2 was of the opinion that the reporter had misinterpreted the Digital Rights Ireland and Others decision and that the Swedish legislation was in violation of the EU Charter. As a result, Tele2 challenged the PTS-order in the Stockholm Administrative Court. The Administrative Court ruled against the applicants and Tele2 appealed. The Appeal Administrative Court referred the case to the CJEU. The main question was whether the Swedish legislation (the Electronic Communications Act) was in conformity with the derogation from the general prohibition against data retention laid down in Art. 15(1) of Directive 2002/58, read in the light of Digital Rights Ireland and Others and Art. 7, 8, and 52(1) of the Charter.  After reaching the conclusion that the Swedish legislation in this particular case falls under the scope of the Directive, the Court moved on to interpret Art. 15(1) of the Directive. According to the CJEU, the derogation in Art. 15(1) must be interpreted strictly and it stated that the grounds for derogations listed in it are exhaustive (para. 89-90). The CJEU concluded that national legislation that provides for a general and indiscriminate retention of all traffic and location of data of all subscribers and registered users relating to all means of communication for the purpose of fighting crime is not in congruence with Art. 15(1) of the Directive read in the light of Art. 7, 8, 11, and 52(1) of the Charter (para. 112).  The matter is still to be decided by the Appeal Administrative Court in Stockholm.

The question whether the UN Convention on the Rights of the Child (CRC) should be incorporated into Swedish law by adopting a legal act has been investigated by a State Inquiry Commission. Its report was submitted at the beginning of 2016 and it recommended that the CRC together with its two Optional Protocols be incorporated into Swedish law.[9] Sweden is already bound by the CRC as a matter of international law. If the CRC is to be incorporated into Swedish law, the CRC will become applicable national law, and not only a supportive legal source. It will also mean that the CRC can fill in lacunas in the law and should there be a conflict of legal norms, the CRC will precede lower-ranking legislation and provisions. Additional advantages are, reportedly, that it will send a clear political signal; it will stimulate a right-based approach to issues related to children and their well-being, and it will bring pedagogical advantages. Sweden is a dualist state and by tradition international conventions have been transformed, meaning that they have been translated and reformulated in order to be, piece by piece, integrated into the existing legal system.[10] The ECHR is, so far, the only exception to this rule. The proposal to do the same with the CRD has met heavy criticism. Some of the main arguments against incorporation are the vague formulations in several of the articles of the CRC, the cost it will bring with it to incorporate due to, for example, an increased amount of complaints, and the special assistance that will be required when children to a larger extent are expected to be heard as witnesses etc. Another concern is how the CRC is to be applied in migration law cases involving children. Moreover, if compared with the ECHR, the CRC has no supranational court that will guide it in the interpretation of the Convention.

On November 12, 2015, the Swedish Government decided to close the borders temporarily as a result of a request from the Migration Board.[11] The decision has been continuously renewed, at the beginning of every month, but since June 2, 2016 these decisions are not taken on a monthly basis. The legal basis for that is found in Art. 29 of the Schengen Borders Code. According to the latest decision, the Swedish border is closed until May 10, 2017. The Swedish constitution is silent on matters of civil emergencies that might pose a threat to public order and national security. Emergency matters are therefore regulated in the form of statutes. On December 21, 2015, a temporary law entered into force (Lag (2015:1073) om särskilda åtgärder vid allvarlig fara för den allmänna ordningen eller den inre säkerheten i landet). The law gives the Government the powers to adopt temporary measures in emergency situations in the form of identity control on busses, trains, or ships entering Sweden from another state (3 §). A decision to impose such measures is valid for six months. The law will end at December 12, 2018. A first-draft proposal was presented to the Council on Legislation on December 5, 2015. This draft gave the Government broader powers, including the power to close roads, bridges, etc., that connect Sweden with foreign territory, than the bill that was finally adopted.[12] The Council on Legislation, when exercising abstract a prio review of the bill, had two major concerns with the draft.[13] The first concern was related to the procedural aspects of the legislative process. The Council concluded that the bill was put together hastily and that it did not serve its purpose, i.e. to handle the challenges that the increased number of migrants posed to society at large and at the same time secure the right to asylum. The Council on Legislation stated that all concerned parties had not been allowed enough time to review the proposed bill and its consequences in accordance with IG 7:2.[14] The second major concern was related to the scope and content of the bill and its impact on individuals’ rights and freedoms. The Council basically argued that the bill gave the Government broad emergency powers without reflecting on basic rule of law principles such as the right to judicial redress and the protection of privacy rights. The Council suggested changes to the bill that would limit the emergency powers of the Government. These suggestions were adhered to when the law was adopted. In 2016, the Swedish National Audit Office (SNAO), which is a central part of the Parliament’s control power, conducted an audit of the enforcement of the Government’s decision to impose border control up till the summer of 2016. The SNAO found that the purpose of the temporary border control and how to achieve that purpose was not sufficiently described in the decision by the Government. As a result, the implementation was left to the Police, and the Police did not have an overall strategy or guideline of how to implement the decision. Therefore it was left to the individual officers and their commanding officers to decide how to implement the decision. The main criticism put forward by the SNAO was that the delegation chain had been direct from the Government to the operative level within the Police without any control as to whether the measures taken had served their purpose, or whether they were in accordance with the law.[15]

On March 1, 2016, a new law entered into force according to which municipalities were required to accept migrants that have been granted residence permits (Lagen (2016:38 om mottagandet av visa nyanlända invandrare för bosättning). This created a controversy based on different views on the scope of the local self-government. The Council on Legislation concluded that the draft had an obvious impact on the scope of local self-government; that the preparatory works to the constitutional rules on local self-government require a careful assessment of the measure, especially its impact on local self-government and whether it is necessary to achieve the aspired goals. After reaching the conclusion that such an inquiry and assessment had been made by the Government when presenting its draft bill, the Council on Legislation stated that there was nothing that led it to conclude that the draft was in violation with the principle of proportionality as laid down in the constitution.[16]

The challenges to the Rule of Law and to the independence of the judiciary that several EU Member States have experienced recently, in particular Poland and Hungary, have revitalized the debate on the role and independence of the judiciary in Sweden.[17] The question is politically sensitive taking into consideration Sweden being a parliamentary democracy and a social welfare state, guided primarily by the will of the people as expressed in general elections. The judiciary is considered a counter-majoritarian institution, whose powers and influence need to be kept strict, which also explains the dominating methods of interpretation, such as a relatively strict adherence to the letter of the law and strong emphasis on preparatory works together with deference to the legislature, and a lack of judicial activism in Sweden. However, due to the internationalization, Europeanization, and fragmentation of the law, difficult situations of interpretation, not foreseen by the legislature, end up before the courts. The courts have been forced to become more active and the scope for what could be perceived as value-based assessments has become broader. As a result, the courts might become positive, instead of negative, legislatures. This concern was recently voiced in relation to the incorporation of the CRC.

IV. Major Cases

  1. Separation of Powers and Judicial Review

In HFD 2016 ref 59, the Supreme Administrative Court ruled on whether a decision by an administrative authority (Svenskt Kraftnät) to divide Sweden into four districts in order to regulate and facilitate trade on Nord Pool was to be considered an administrative decision in an individual case (förvaltningsbeslut i ett enskilt fall), or a general legal norm (föreskrift). A company had challenged the legality of the decision. There is no judicial redress concerning general norms, since such decisions according to the preparatory works are not suitable for judicial review. Therefore the HFD had to answer the question whether the decision was a general norm or a decision in an individual case before it could proceed to assess the legality of the decision. The HFD ruled that the decision was a general norm, for the following reasons: the decision applies throughout the whole Swedish territory, it is binding for all actors on the Nord Pool, and finally it affects a large and unlimited number of transactions every day and for an unlimited time period. Since Swedish law does not allow for abstract judicial review, and there is no judicial redress against general norms, the legality of the decision could not be challenged.

2. Rights and Freedoms

In HFD 2016 ref 8, the question was whether a data bank created by a consortium of gas stations containing data on cars was legal. The data bank was to be managed by employees at gas stations. Every gas station was to be equipped with a camera photographing all cars. In case of someone not paying for the gas their register number would be registered in the data bank, and as a result they would be denied to buy gas in the future without pre-paying. The HFD concluded that the data concerned personal data related to crimes. According to Swedish law, only administrative authorities are allowed to handle such data, if not an explicit exception is decided by the Swedish Data Protection Agency. In this case privacy rights were at stake and the scope for such an exception should be limited according to the HFD. The HFD concluded that the data bank was to be handled and controlled by employees at gas stations. Entering data would be done after visual observations only and on the basis of alleged crimes. Due to the high number of actors involved, the apparently wide margin of error, and the fact that data banks related to crimes as a main rule are to be managed by administrative authorities,  the HFD concluded that the obvious risks concerning violations of privacy rights could not justify an exception to the main rule in this particular case.

In two cases, the HFD[18] had to decide on what constitutes a civil right within the meaning of Article 6 ECHR. The first case concerned a decision taken by the Swedish Agency for Youth and Civil Society concerning a request for grants. The Swedish-Turkish National Association applied for a state grant. The application was denied and in the decision it was stated that the decision could not be appealed. The Association still appealed to the Administrative Court, claiming they had a right to appeal taking into consideration hat the decision concerned a civil right according to Art. 6(1) ECHR. The second case raised the question whether decisions concerning parking permits for persons with disabilities were a civil right for the purpose of Art. 6(1) ECHR and hence whether there should be a right to judicial review. According to the case law of the HFD, state-funded grants fall under Art. 6(1) ECHR if the right to such a grant is stipulated by law; the criteria are laid down in the law, thus limiting the scope for discretionary assessments; and as a main rule all associations are entitled to such a grant.[19] Moreover, the right to judicial review of administrative decisions is considered a fundamental rule of law principle and therefore the presumption is in favor of a civil right according to Art. 6(1) ECHR.[20] In both cases, the HFD found that Art. 6(1) ECHR was applicable. In the first case, the Court referred to its case law in HFD 2011 ref. 10. In the latter case, the HFD equaled the parking permit with a social benefit and stated that there were no authoritative reasons for not considering the benefit a civil right, taking its case law in HFD 2011 rf. 2 into consideration.

On June 10, 2016, the District Court in Stockholm[21] delivered its ruling in the so-called Roma Register case. This was the first time a court decided on the matter which since 2013 has been lively debated in Sweden. Several non-judicial control bodies have already declared the register to be illegal[22] and to be a register primarily based on ethnic identity.[23] The legal question is whether the right to not be discriminated against on the basis of ethnicity has been violated. The District Court ruled in the affirmative, interpreting the Swedish Law (Polisdatalagen 2:10) in conformity with Art. 8 and 14 ECHR. The Chancellor of Justice (representing the State) appealed. The position of the State is currently that the register is in violation of Art. 8 and 14 ECHR as the law stands after Biao v. Denmark[24] but that it is not in violation with Swedish law, and the damages therefore should be lowered.

V. Conclusion

Developments in Swedish Constitutional Law in 2016 reflected the Swedish Constitution’s standing in the Swedish legal order. Several important political matters related to or with an impact on constitutional principles took place but these matters were not primarily framed as constitutional issues. The closing of the Swedish borders as a result of the migration situation, the relationship between EU law and national law concerning privacy rights and data protection, and the incorporation of the CRC into Swedish law could serve as three examples. One explanation could be that by tradition, the Swedish constitution has had the status as an instrument for the government. Rules on the division of powers and functions between the legislature, the executive, the administration, and courts have been the main focus of the constitution. However, slowly the chapter on rights in the Swedish Instrument of Government has increased in importance, due to, for example, the Europeanization of national law.

[1] See Kommunallagen 2:1, see also prop 2009/10:80 p. 210 ff.

[2] Four decisions by the Surpreme Court in 2016 dealt with matters of constitutional law, see NJA 2016 s. 680, NJA 2016 s. 649, NJA 2016 s. 320, NJA 2016 s. 212.

[3] The Supreme Administrative Court confirmed this rule in HFD 2016 ref. 59.

[4] NJA 2014 s. 323 and NJA 2014 s. 332.

[5] HFD 2015 ref. 16. See 2015 ICON-Report on developments in Swedish constitutional law.

[6] Thomas Bull, ”Rättighetsskyddet i Högsta förvaltningsdomstolen”, SvJT 2017 s 216, 218.

[7] The Swedish Case in the Joined Cases C-203/15 and C-698/15.

[8] DS 2014:23.

[9] SOU 2016:19.

[10] Iain Cameron, An Introduction to the European Convention on Human Rights, Iustus, Uppsala (2014) 31-32.

[11] Regeringsbeslut 11:13, Ju2015/08659/PO.

[12] Prop. 201516:67 p 25.

[13] The Council on Legislation, 7 December 2015, available in prop. 201516:67.

[14] “In preparing Government business, the necessary information and opinions shall be obtained from the public authorities concerned. Information and opinions shall be obtained from local authorities as necessary. Organisations and individuals shall also be given an opportunity to express an opinion as necessary”. IG 7:2.

[15] RIR 2016:26 p 18.

[16] The Council on Legislation, 2015-11-04, available in Swedish at Last accessed 2017-04-20.

[17] See ,for example ,Fredrik Wersäll, ”Ökad domarmakt och makten över domstolarna”, SvJT 2017 s 1.

[18] Nr. 3784-15, 4047-15.

[19] HFD 2011 ref. 10.

[20] HFD 2011 ref. 22.

[21] T 2978-15 et al.

[22] Säkerhets och Integritetsskyddsnämnden (SIN), dnr. 173-2013, 15 november 2013.

[23] Diskrimineringsombudsmannen (DO), GRA 2013/67, 20 februari 2013, Justitieombudsmannen (JO), dnr. 5205-2013.

[24] Biao v. Denmark, no. 3859/10.

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