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WG Independence-Efficiency > Meetings > Beaulieu-sur-mer 2006 > Meeting Beaulieu-sur-Mer 10-11 March 2006- Sweden

Meeting Beaulieu-sur-Mer 10-11 March 2006- Sweden


A. Legal framework

1. In the Swedish Constitution (Regeringsformen) it is prescribed that the Government decides weather to enter into an international agreement or not. However the Government can not enter into such an agreement if the Parliament has not approved it, in case it is of a big importance or when the agreement requires that a law must be changed or adopted. All legislation is a matter for the Parliament, but the Parliament can delegate its right to the Government, i.e. the Parliament authorizes the Government in a national law to institute decrees in a certain matter. The Parliament can also delegate its right to decide to the Community but only if it does not concern the Swedish form of government. Furthermore it can not delegate something that concerns the Swedish Constitution and it has to make sure in the special subject that the EU has the same rights of freedom etc. as in our Constitution and in the European Convention of Human rights. The Swedish Constitution does not explicitly provide for the position of Community law but in the areas where the Parliament has delegated its rights to decide to the Community, the Community Law has precedence. However we also have a national law from 1994, when Sweden concluded the accession, treaty that says that lÁcquis Communautaire (treaties, regulations, directives, ECJ-judgements etc.) is valid in Sweden with the effect that the fundamental treaties give it.

2. In Sweden we do not have a Constitutional Court. All judges in all of our courts are obliged to know and apply Community laws. The courts as well as the authorities have to carry out the relevant judicial review themselves but very often it is the attorney for one of the parties who arises the question as to whether the ruling in the administrative authority or the court is in compliance with the relevant Community law. There is no difference if it is a question in the ordinary court system or in the administrative court system but the question if the ruling is in compliance with Community law more often arises in the administrative courts.

3. As in all the EU a Community regulation is valid in the state as a national law according to its wording without any implementation if the regulation does not explicitly demand it (art. 249). Of course the state is allowed to promulgate prescriptions to see to it that the regulation will be effective. Directives however must as you already know be implemented in some way and they are binding for the state with regard to the result that is supposed to be reached threw the directive. There are different ways to implement directives in Sweden, mainly transformation or incorporation. In a national law it can be prescribed that the directive shall be valid as a national law without transforming it to a Swedish law. Another way is to translate it to Swedish word by word (incorporation). But the most usual way is to change the national law or the national regulation (that has to be based upon a national law) so that it will be in compliance with the directive (transformation). If Sweden has not implemented a Community act in the given time it is valid in Sweden to the extent that it has direct effect. It is mandatory to implement it otherwise the nation could have to pay damages (Francowich C-6/90).

B. Usual attitude of administrative judge towards community law

1. When a question arises if the national law complies with the Community law the court is obliged to try to interpret the question itself. In doing so the judge has to interpret the national law in a way that best meets the intention of the directive (treaty-friendly interpretation). If the court finds that it is necessary to ask for a preliminary ruling to be able to solve the matter the court can ask ECJ. It must of course be a question that is not obviously clear and has not yet been solved in an ECJ judgement. These are the main rules but in reality we have not asked the ECJ in my court (the Administrative court of Appeal in Stockholm) more than two times. Very often we find the case so old that we do not want to delay it any further and therefore we try to solve the matter ourselves. If the question arises in the Supreme Court however it is obligatory to ask the ECJ. The Supreme Administrative Court has asked for a preliminary ruling in about 20 cases. As you know it is only the courts which can ask for a preliminary ruling, not other public authorities. Sometimes however, it is unclear if a certain board/council is regarded as an authority or a court. In a judgement from the 12th of November 1998 (C-134/97) the ECJ found that the Council for advance tax rulings (Skatterättsnämnden) in Sweden was not regarded as a court.

2. The judges accept to consider directives with direct effect and general principles of community law ex officio.

3. The judges accept to put forward a breach of community law by his own motion

4. The judge has to examine if there is a conflict and rule against even the national Constitution if it is in conflict with Community law. But that is the truth only in areas where Sweden has delegated its right to decide to the Community (look above A 1.)

5. The judge often refer to ECJ judgements when they are applicable or to principles derived from ECJ case law. In some cases the judge has to use a treaty-friendly interpretation (look above B 1). We also refer to foreign Court decisions if they are dealing with the same question. Of course we also refer to the Administrative Supreme Court and the Supreme Court in Sweden. Very often we also look into the preparatory work to a Swedish law that e.g. has been transformed because of a Community directive. Sometimes when it is unclear what a directive prescribes the judge has to compare different translations of the directive and also look into the preamble to the directive.

C. Instruments used by administrative judge

1. Yes when it is a directly applicable community law. If it is not a directly applicable Community law the judge has to follow the national law.

2. The judge does not quash the whole regulation or the administrative act but can declare that this act in the special case is not applicable. However the judge does quash the administrative decision when it is not in compliance with directly applicable Community law.

3. Yes, the judgement in a certain case can be that the administrative authority has to act in another way that is in compliance with the community law or that the authority has to reconsider the case in accordance to the Community law. When the directive has not been implemented within the prescribed period or when the transformation has been inconsistent we consider the rules in the directive that has direct effect. When our national law is not in compliance in such a case the directive has to be followed.

4. The administrative authorities do not enact any acts only the Parliament (and sometimes the government) can do that. The Court can not order the authority to pay damages, that is a matter for ordinary courts but the administrative court can of course change a ruling and prescribe that the authority has to pay for example social allowences.