Questions and Swedish answers
Do the rights granted by the Charter of Fundamental rights of the EU lead us to a common European procedure before the administration and the administrative courts ?
The provisions in the Charter are primarily addressed to the EU institutions and bodies but, according to article 51.1 they should be applied by the Member states when they are implementing Union law.
Through the Treaty of Lisbon the Charter, proclaimed in Nice 7 December 2000, is legally binding to the same extent as the Treaties (article 6.1 in the EU Treaty).
To what extent do you apply EU law
In Sweden we apply EU law to some extent.
To what extent do you set aside rules of domestic law, if necessary, to give full effect to EU law ?
We set aside domestic law to some extent in order to give EU law full effect.
Can you give examples if appropriate ?
There are examples in tax law and student aid law where the domestic law was set aside to give EU law full effect.
Do you apply EU law even if neither of the parties in a case before you has relied on EU law ?
Yes, we apply EU law independently.
Article 41 Right to good administration
41.2 a The right of every person to be heard before an individual measure is taken.
Is this right guaranteed in the procedural law for the administration/and the administrative courts/ in your country ?
If so, is this a right only “on demand” or is it an obligation for the administration to give the individual this opportunity ?
Yes, this right is guaranteed in the procedural law and it is an obligation for the administration to give the individual this opportunity.
41.2.b The right of every person to have access to his or her file
Is this right guaranteed in the administrative procedural law in your country ?
only when asked for ?
or is it an obligation for the administration to send all the documents to the complainant ?
Yes, this right is guaranteed in the administrative procedural law and it is an obligation for the administration to send all the documents to the complainant.
41.2.c The obligation of the administration to give reasons for its decisions
Is there such an obligation in your country ? Can you describe how long such reasons may be – a few lines or several pages ?
The administration have an obligation to give reasons for its decision but the reasons may be short, like a few lines.
Article 47 Right to an effective remedy and to a fair trial
47.1 The right to an effective remedy before a tribunal
This first paragraph is based on Article 13 of the European convention on Human Rights, ECHR but the right is more extensive than in the ECHR as the remedy must be before a court, not only a “national authority”.
Are there time limits for the administration to decide upon an application of a party ? If this is the case, how long is this period of time (if it depends on the kind of case, please give some examples).
In most cases there are no time limits. There are time limits laid down by law in cases concerning the custody of mentally ill, custody of children, custody of drug or alcohol misuses and immigration.
Is there a legal remedy if the administration failes to decide within that time limit ?
Not in general.
In Sweden there is a legal remedy against delay. With the “declaration of priority of cases in court” an applicant are able to turn to the court and ask for priority if his case has been unduly delayed. Then the president of the court can decide that a certain case should be dealt with priority.
The applicant can also turn to the parliamentary ombudsman who then will investigate the proceedings. If the parliamentary ombudsman finds that the proceedings have been to slow he will criticize the administration or the court/judge.
We have at the moment in Sweden suggestions of new rules in this area that will give the applicant a better remedy to get a decision after six month.
Has your country guaranteed the remedy before a court for everyone whose rights and freedoms guaranteed by the law of the Union are violated ?
Is it necessary to appeal to a higher administrative authority before a party is entitled to appeal to a court ? Please give the number of instances within the administrative law suit.
It is normally not necessary to appeal to a higher administrative authority before a party is entitled to appeal to a court. There are some exceptions, like building permit.
47.2 The right to a fair hearing
This second paragraph corresponds to Article 6.1 of the ECHR but the right to a fair hearing is not confined to disputes related to civil law rights and obligations. Thus, this right is also more extensive than in the ECHR.
Does your country fulfill this obligation regarding the application of EC Law ?
We think we do.
Are the administrative courts in your country confined to decide only on the legality of the case or can they also look into the “appropriateness” or “suitability” of the administrative decisions ?
The court makes a full review of the challenged decision ; except for municipality decisions where the courts reviews only comprise the decisions accordance with law.
Is the administrative court entitled to control the question of fact ? To what extent (just whether the grounds given by the administration are reasonable, or full cognition, including the hearing if witnesses and experts by the court) ? Do administrative courts rely on experts working for the administration (on expertises that have already been delivered during the procedure before the administration) or do they nominate own experts (in order to control the experts who worked for the administration) ?
Witnesses referred to by the parties are heard by the courts themselves. The court both obtain statements from experts nominated by the court and make reference to experts heard in the previous administrative procedure. Swedish administrative courts use independent medical experts, psychiatric experts and tax experts.
Can the administrative court replace the administrative decisions with their own decisions or is it only a “cassation” ?
The administrative court can replace the decisions with their own, except for municipality decisions.
Is there a “two party system” before the administrative courts in
your country, that is, are the individual and the administration
regarded as two opposing parties ?
In almost all cases we have a “two party system”
Is the administrative court limited to the arguments put forward by
the “parties” or can the court look independently on the facts ?
The administrative court is generally not limited to the arguments put forward by the parties, except for municipality decisions and public service contract.
Draft recommendation of the Council of Europe on the independence, efficiency and responsibilities of judges
The process of drafting a new Recommendation on the independence,
effectiveness and responsibilities of judges by the Council of Europe,
reactivated in 2008, will end soon. This draft Recommendation is listed on
the agenda of the next plenary meeting of CDCJ (European Committee on legal co-operation - Comité européen de coopération juridique) to be finalized (11-14 October 2010), and then forwarded for adoption by the Committee of Ministers of the Council of Europe in November 2010.
An introduction about this topic will be presented during our plenary
The objective of the questionnaire is to prepare the debates in subgroups
(one or two about this topic) and then a synthesis of our views.
The plan of questionnaire is the same as that of the draft recommendation, which is structured in 8 chapters.
It’s not useful and we would need more than two days meeting to comment or analyse all the points. But we would like to receive from each country represented in Beaulieu sur Mer and for each chapter, answers about the questions follow : what are the main points and the main interrogations for your country, which principles will have the biggest impact on national rules, which points of the new recommendation ought to be clarified, are there ambiguities or some topics missing… ?
1. About Chapter I General aspects : scope of the recommendation,
judicial independence and the level at which it should be safeguarded.
Chapter II External independence : with government, parliament, medias and civil society.
Chapter III Internal independence : hierarchy, internal organization,
distribution of cases, professional organizations.
Chapter IV Councils for the judiciary.
Chapter V Independence, efficiency and resources : resources, alternative dispute resolution, court administration, assessment, international dimension.
Chapter VI Status of judges : selection and career, tenure, remuneration, training, assessment.
Chapter VII Duties and responsabilities : duties, liability
and disciplinary proceedings.
Chapter VIII Ethics of judges
The main point for Sweden in the recommendation, that includes principles that have or will have big impact on Swedish judges and national rules are :
judicial independence and the level at which it should be safeguarded
independence enshrined at the constitutional level
the judges independence from government
the courts internal organization
Councils for the judiciary
the courts resources
remuneration of judges
liability and disciplinary proceedings
ethics of judges