The Treatment of Foreign Administrative Decisions in Swedish Law: Acceptance in Legislation, Limited Elaboration in Case Law

“Unable to Defend Him”: Conflicting Views of Female Violence in Swedish Medieval Law

The article examines the power of administrative bodies to assess the constitutionality of legislation (‘administrative constitutional review’), taking examples from Swedish public law. The Swedish constitution explicitly requires all public bodies to engage in administrative constitutional review when necessary. In this way, Swedish administrative authorities have the right and duty to act as guardians of the rule of law. This competence relates to the historical development of Swedish public law, which deviates from most other European constitutional systems by organizing all state administrative authorities as separate public organs detached from the Government and the ministries. The Swedish constitutional obligation is parallel to EU law requirements on national administrative organs to set aside national legislation in conflict with directly applicable EU law (‘the Costanzo obligation’). Against the background of practical examples in Swedish law, the article identifies theoretical and practical challenges for administrative bodies to engage in constitutional review. These include the risk of disturbing constitutional structures by putting lower administrative authorities on par with the parliament. The possible problems of lack of legal expertise and the problem of independence in practice are also discussed. At the same time, the concept of administrative constitutional review has a potential to protect the constitutional system, including the fundamental rights of individuals. administrative constitutional review, separation of powers, rule of law, administrative independence, Swedish administrative model, Costanzo

Article 17(3) of the EU Antitrust Damages Directive and the Possibility for National Competition Authorities to Assist in the Quantification of Harm

This article explores the phenomenon of juridification in education with a focus on Swedish education law. Two key legislative areas are analysed: regulations on the discrimination and degrading treatment of students (DDT) and the incorporation of the United Nations Convention on the Rights of the Child (CRC) into Swedish law. Using Blichner and Molander’s (2008) framework for the dimensions of juridification with an additional dimension by Rosén, Arneback, and Bergh (2021), the article examines how the laws manifest different forms of juridification within the educational system. The findings reveal distinct patterns, with DDT representing an accountability-oriented juridification characterised by detailed legal obligations and enforcement mechanisms, while CRC exemplifies an elusive juridification with a symbolic legal status and uncertainty regarding how the law should be enacted and implemented. The study highlights the complexities of the juridification of and in education and the implications for legal and pedagogical practices, contributing to a nuanced understanding of how law reshapes educational contexts.

This chapter explores the impact of the pan-European general principles on Swedish administrative law. The chapter claims that the European Convention on Human Rights and the case law of the European Court of Human Rights have had a great impact on important sectors thereof, such as areas connected to the right of access to courts, procedural safeguarding of administrative sanctions, and state liability. At the same time other standards of good administration developed within the framework of the Council of Europe seem to slip under the radar in the Swedish legal system and are not usually relied on by Swedish administrative courts or the Swedish ombudsman. An explanation for this lack of reliance may lie in the fact that Swedish law already has long-standing traditions with well-defined concepts and procedures in this field.

The constitutional principle of access to public records and the administrative principle of parties’ right to access their files create transparency in the Swedish Competition Authority. In many ways Swedish law is built on the same ideas as EU law. However, the Swedish constitution requires more specific provisions on confidentiality in statutes decided by the Parliament. As regards the Swedish Competition Authority, five different sections of the law protect confidentiality, depending on who is to be protected, what activities are concerned, what kind of information is involved and how likely it is that someone will be harmed. These detailed provisions can in principle contribute to predictability, limiting the authorities’ discretional power, but they also constitute a complex patchwork that can be difficult to comprehend. A problematic legal conflict would arise if a document were confidential according to EU law, for example to protect trade secrets, but not confidential according to Swedish law. However, so far, EU law has only been invoked to expand the right to access to documents, especially regarding companies that intend to bring action for competition law damages.

The harmonisation of consumer law in Europe has been an important objective within the EU. Efforts have focused not only on improving the functioning of the internal market, but also on securing a high level of consumer protection in the Member States. With regard to consumer contracts, the Unfair Contract Terms Directive has come to play a key role, not least due to the case law of the European Court of Justice in this area in recent years. This article examines the need for an unfairness test of standard contracts and argues that the directive can be expanded to also include individually negotiated contract terms, and terms that relate to the main subject matter of the contract, the adequacy of the price, and changed circumstances. Such amendments would result in a greater correspondence between EU law and Swedish and Nordic law. Although full harmonisation is not possible in the short term, I will argue that a revision should point in this direction. However, I will begin my account with a presentation of the directive and how it has been implemented in Swedish law.

The Status of Sami Customs and Traditions in Swedish Law This article discusses the status of Sami customs and traditions in Swedish law. With Swedish reindeer herding legislation as a point of departure, three court cases involving customary law, where appeal is made to customs, and traditions ‘from time immemorial’ are discussed. Comparisons are made with the ways in which Supreme Court of Norway treats Sami culture and traditions. Thereafter, a court case which demonstrates the importance of Sami traditions with reference to the content of reindeer herding rights is presented. Finally, the standing of Sami customs and traditions to Swedish law in general is discussed. This article shows the shifting importance of Sami customs and traditions with regard to reindeer herding rights and Swedish law. Keywords: Swedish law, reindeer herding rights, Sami traditions, case law. Citation: Arctic Review on Law and Politics, vol. 2/2011 p. 77–101. ISSN 1891-6252

The general rule in EU law is that value-added tax (VAT) is to be levied on all goods and services. There are a number of exceptions, however, one of which applies to certain medical services. This paper examines the legal basis for tax exemptions in EU VAT law and in Swedish law, with particular attention to the extent to which the rapidly growing private health-care sector is covered by these tax exemptions.

Based on concerns about food security and food sovereignty, it is appropriate to scrutinise societal measures for protecting agricultural land from conversion to other uses. Changes from agricultural to urban land use are particularly problematic, as they are largely irreversible. By analysing relevant Swedish policy, the present study investigated how the protection of agricultural land is framed as an issue of societal importance. Protection of agricultural land is enshrined in Swedish law, but its use is still continually changing to housing and other constructions. In a structured policy analysis, two questions were examined: (1) what are the societal motives for protecting agricultural land in Sweden, and (2) how do these motives influence the governance of agricultural land? The meaning of ‘national importance’, ‘suitable for cultivation’ and ‘significant national interests’ in Swedish land-use law was also analysed. The results showed that formulations in the law reflect the ambivalent discourses on agricultural land preservation and that the Swedish authorities view other land uses as more important than agriculture. The Swedish governance system is currently built on trust that municipal institutions will make satisfactory decisions concerning land and water use. However, it has been shown that these decisions have not been satisfactory concerning the protection of agricultural land, and it is important to acknowledge that the sum of local decisions can be degrading for these life-supporting resources. The present analysis revealed a looming conflict between the preservation of soils for food production, on one hand, and local participation in decision making, on the other. This raises the question of whether it is more important to defend subsidiarity or to preserve certain resources which are important for food security, such as agricultural land.

Aim: The aim of this study is to examine the direction in which the European Court of Justice can further develop its case law on expulsion decisions by Member State authorities in response to the new challenges facing European integration (including, in particular the practical difficulties arising from the completion of the Area of Freedom, Security and Justice and the divergent case law of the European Court of Justice).Methodology: Based on the most recent case law of the European Court of Justice, the study examines the areas in which it seems necessary for the Court to give interpretative decisions in the context of a prelimiray ruling procedure. The study is primarily based on actual (Member State) case law and its difficulties.Findings: The concept of a territorially united Europe is a necessary corollary to the completion of the Area of Freedom, Security and Justice. While the case law of the European Court of Justice on EU citizenship aims in many respects to strenghten this status (and, at the same time, to weaken Member States’ regulatory power) there is at least a partly opposite trend in the assessement of Member States’ expulsion policy under EU law. The study examines how the European Court of Justice can reconcile the federalising concept of EU citizenship with an expulsion policy based on sovereignity and the impact of all this on the unifying and expanding concept of EU citizenship.Value: The topic examined in the study has not been examined in the Hungarian literature before, the study is based on the latest case law of the European Court of Justice. The value of the study is that it attempts to identify the areas where the European Court of Justice may need to develop its case law in the near future to ensure the effective enforcement of EU law. The study can also provide guidance to domestic legislators and law enforcement agencies in this field.

The article discusses the impact of the European Convention on Human Rights (‘the Convention’)  and the  case law of the European Court of Human Rights on Estonian law. It gives historical background on the ratification of the Convention and its protocols by Estonia and describes the status of the Convention in the Estonian legal order. It then shows in more detail the impact of the case law of the Strasbourg Court on Estonia’s legislature, executive power, and judiciary and examines the case law pertaining in particular to the historical past, deprivation of liberty, prison conditions, fair trial and length of proceedings, retroactivity, and lack of foreseeability of criminal law, along with the case law on pluralism and civil rights, especially freedom of expression. In addition, the article focuses on the important issue of reopening of a case on national level once the European Court of Human Rights has found a violation and looks at the implementation of judgements of that court by Estonia in general. Additional remarks are made on the Supreme Court of Estonia’s application of the Convention and the case law of the European Court of Human Rights. Finally, the impact of the case law of the Strasbourg Court in relation to Estonia on the general development of precedents with that court is discussed. In conclusion, in relation to the case law of the European Court of Human Rights, it is important to understand that the Court finding a violation of the Convention in respect of Estonia is not so much a condemnation, ‘against’ the country, as a learning opportunity, in a sense, for Estonia’s democracy, rule of law, and human rights protection system. Furthermore, there could well be other difficulties in Estonia that the Court has for various reasons had no opportunity to address. This can be seen in areas wherein the Court has found a violation by another state but wherein a similar problem still exists in Estonia – e.g., in relation to prisoners’ voting rights. It is important to consider a more global picture of the human rights situation. It is unfortunate that in Estonia, especially in the media and for the wider public, little attention is paid still to the case law of the Court with respect to other states.  In general, European law has been well accepted in Estonia, especially the Convention and the case law of the Court. Working from the Estonian examples, one can confirm that the legislature; the executive power, even more so; and, above all, the judiciary of Estonia have recognised well that the Convention is an inseparable part of Estonia’s legal and democratic culture. Estonian courts need to feel that they also are human rights courts, especially in dealing with the facts and Estonian law, domains wherein the Court cannot and should not act as a fourth or first instance. At the same time, the Court should be able to speak not only to the Estonian courts as counterparts but also to the Estonian people. They as well need to understand European human rights law. All in all, Estonia is quite lucky: it does not have particularly worrying human rights problems; not many violations of the Convention are found in respect of Estonia by the Court. Estonian cases have been dealing with more or less the same issues every ordinary democratic country faces, even to a certain extent with problems of a modern, well-advanced society, such as freedom of expression and privacy rights on the Internet. Also the Court has been lucky to have Estonia as an exemplar: a country wherein the Convention system and the Court’s case law have been to a large extent respected and well complied with. But this mutual ‘happiness’, this quite nice two-way street, should not be taken for granted. The Court’s case law is a moving target. It is hoped that all future developments related to the Court will contribute to improvement of the protection of human rights, democracy, and the rule of law all over Europe. Neither Estonia nor any other European country can apply the generally recognised principles by choice ‘in its own way’.  Estonia’s trump in Europe and beyond could be to serve as a model in the protection of human rights. In consideration of its experience, geopolitical location, and size, alongside its investments in education and the historically rooted importance of nurturing intellectual and cultural values, Estonia could be in a very good position to achieve this ambitious goal.&#160

In 2006, a prohibition on less favourable treatment of workers related to parental leave was introduced in The Swedish Act on Parental Leave. The prohibition was designed on the basis of the rules on discrimination of pregnant workers and workers on maternity leave in the Equal Treatment directive. The Swedish rules do however separate from the EU rules in one crucial respect. While the European Union law principally does not allow any exception from the prohibition on discrimination on the grounds of pregnancy and maternity leave, the Swedish Parental Leave Act in some cases allows an employer to treat a worker less favourable on the ground of parental leave. Such less favourable treatment is allowed in cases where the less favourable treatment can be seen as a necessary consequence of the parental leave or the maternity leave. The overall aim for this article is to discuss different problems that may be a result of the method of legislation used for the Swedish rules on protection of workers related to parental leave. On one hand, these national rules are intended to be in principle fully equivalent to the corresponding EU rules on pregnancy and maternity leave. But on the other hand, the national provisions are provided with an exception that has no parallel in the European Union law. As the national rules only partly is in coherence with the union law, the legal argumentation concerning these rules can only partly refer to principles of European Union law and to jurisprudence from the Court of Justice of the European Union. A difficulty related to this method of legislation is thus to make clear to what extent guidance as to interpretation of the national law can be found in EU law. Another problem connected with this method of legislation is that it may cause the national law to diverge from the EU law in a way that is not legally acceptable. Regarding the Swedish Parental Leave Act this problem have been discussed in relation to the level of protection granted for employees on maternity leave, as these employees are covered both by the strict rules on protection provided in EU law and by the less strict provisions in the Swedish Parental Leave Act. (Less)

The Stockholm Administrative Court recently ruled that Sweden’s wolf management policies are incompatible with the Habitats Directive. These policies are also the subject of an on-going infringement proceeding by the European Commission. The administrative court’s decision has been appealed. This case is significant for two reasons. First, it interprets controversial provisions of the Habitats Directive. But perhaps more importantly, it demonstrates the growing impact of EU law in a member state. This was the first major case in which the national courts were able to review a hunting decision pertaining to a species protected under EU law because standing to bring public interest lawsuits for the protection of species has been recognized only very recently. Under traditional Swedish procedural law, only the government can represent the public interest in administrative decision making and in court. Here, Swedish courts finally applied to hunting decisions the CJEU’s holding in Slovak Brown Bear, which says that national procedural law must be interpreted so as to allow environmental NGOs to challenge administrative decisions that might contravene EU environmental law. The court did not request a preliminary ruling despite that fact that controversial questions of EU law were implicated however. While the court applied EU law, it preferred to maintain control over its interpretation.

This chapter discusses three primary roles of comparative law in EU law. First, comparative law is used in the making and application of European law: for example, in the crafting and interpretation of European legislation and in the case law of the European Court of Justice. Second, European law has exerted a significant influence on other legal systems. A third role of comparative law relates to questions about the very nature of European law: how it is to be classified, or whether it is a novel form of ‘transnational law’. Civil and common law systems are also considered in relation to comparative law, along with the ‘components’ or ‘sources’ of European law: treaty provisions and constitutional principles, EU legislation, general principles of law, international law, and case law of the Court. The chapter concludes with an overview of the distinction between private law and public law, a comparison of EU and federal systems, and a survey of other transnational systems inspired by the European Union model.