Working group ”Independence and Efficiency Palermo 8 – 9 November 2012
Europeanization of Administrative Law – Swedish answers
I will by start by relating to our earlier meeting in the autumn 2010 in Beaulieu-sur-mer with the title “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 ?” At the Beaulieu meeting we discussed the Articles 41(the right to good administration) and 47 (the right to an effective remedy and to a fair trial) of the charter. Article 47.2 corresponds to Article 6.1 of the ECHR but it is more extensive since it is not confined to civil law rights and obligations. Some of the questions to the working group members then correspond to the first part of the present questionnaire. Thus, the answers given at that time should be relevant also for the present discussion.
The impact of Article 6 of the ECHR on proceedings in administrative courts in Sweden
Sweden ratified the ECHR in 1953 but did not incorporate the convention until 1995. Already before 1995 it was agreed that Swedish law should be interpreted according to the convention.
The Administrative Court Procedure Act dates from 1971, the year when the modern administrative jurisdiction in Sweden started to take form, a process which ended with the introduction of administrative courts in first instance in 1979. The procedural law for the administration also dates from 1971.
The impact of the Article 6 of the ECHR on Swedish procedural law is quite important. Oral hearings must be held if the private party asks for it and the hearing is not unnecessary. N.B., the oral hearings are not always in public. Also, the right to make an appeal to a court in matters concerning civil rights and obligations is always regarded. This means that an internal law rule forbidding an appeal should sometimes be set aside.
Another rule, influenced by the ECHR, is the rule of access to court. It is to find in the procedural law for the administration. This new rule says that if there is a right to access to court according to the ECHR you can always turn to an administrative court – even if this right is not foreseen in Swedish law.
The right to an adversial proceeding – a two party system – was introduced in the court procedure act in 1996.
The right to a reasoned decision was introduced in the law from the very beginning, which is in 1971.
A judicial decision within reasonable time : Here the (general) Supreme Court awarded damages to a party because of lengthy proceedings without support in Swedish law – the court applied the ECHR directly (NJA 2005 s. 462). A Swedish legislation on damages because of lengthy proceedings is now on its way.
Since the Lisbon Treaty from 2007 the European Charter of Fundamental rights of the EU is legally binding to the same extent as the Treaties (article 6.1 in the EU Treaty). The Charter is applicable only when courts and administration is dealing with EU law. In the Charter you will find rules very similar to those in article 6 of the ECHR but sometimes more extensive (for instance, the right of access to court).
The Influence of principles of European law in the evolution of administrative law
The principle of legality is written down in the Swedish Constitution, (first chapter, first article : The public power must be executed according to law) as is the respect for fundamental rights – the Constitution refers to the ECHR, which, as is mentioned above, is incorporated as a Swedish law, and according to chapter 2, article 19 in the Constitution no Swedish law must be passed that is contrary to the ECHR..
The principles of primacy and direct effect of EU law follows from the law from 1994 on the Swedish accession to the European Union.
The principle of proportionality is often referred to by the parties in a case. It is to be found in for instance the Constitution, chapter 2, article 15 and in the Taxation procedural law. I have found more than 1000 cases in the administrative courts where the court has applied this principle as derived from the ECHR. I have only found a few cases where the court refers to the principle of subsidiarity.
The precautionary principle is written down in the Environmental Code and referred to in other laws on environmental issues.
In the Swedish law on Public procurement references are made to the principles of equality, non-discrimination, mutual recognition and proportionality because these principles are written in the EU directive on Public procurement but in domestic law that is not based on EU law such references are not made.
The European Charter on Fundamental rights refers to the principle of subsidiarity in article 51regarding the scope of the rules and the principle of proportionality in the article 52 regarding the range and interpretations of the rights. As mentioned above the Charter is legally binding in the Member States since the year 2007.
The Court of Justice of the EU has repeatedly stated that the member states are to apply EU law according to their own procedural law on condition that they follow some important principles : Such procedural rules must not be less favorable than those governing similar domestic actions (the principle on equivalence) nor render virtually impossible or excessively difficult the exercise of rights conferred by EC law (the principle on effectiveness). These principles were established by the Court in the cases 33/76 Rewe and 45/76 Comet and have since then been confirmed and developed in many other cases.
The Swedish administrative court’s system and the procedural rules are following these principles but nothing is perfect : Some years ago the European Commission turned to Sweden with complaints regarding the handling of cases concerning the Act on Electronic communication – in the view of the Commission the proceedings in Sweden were too slow. Because of these complaints the procedural rules were changed : It is no longer possible to make an appeal to the Supreme Administrative Court in these cases, specific time limits are introduced and the possibility to decide on temporary suspension is reduced as is the right to bring forward new evidence. Also, in the law there are rules on the composition of the court : In many cases there must be two judges and two economical experts. This is an example of a direct EU influence on domestic procedural rules.
It is also worth mentioning that you can find some secondary legislation that is obliging the member states to follow precise procedural rules, for instance : directive 2004/18/EG on public procurement, directive 2004/38/EG on the right of citizens of the Union and their family members to move and reside freely, regulation 1612/68 on the freedom of movement for workers, directive 2006/123/EG on services in the internal market and regulation (EG) 764/2008 on procedures relating to the application of certain technical rules.