My chapter in the book Indirect Judicial Review in Administrative Law, Legality vs Legal Certainty in Europe is dedicated to the role and function of indirect review of administrative action in Swedish law. Indirect review of administrative action refers here to a situation where the validity of an administrative measure – it could be a general administrative act or an individual administrative decision – is challenged during a proceeding concerning an issue other than the administrative measure itself. In European legal literature, this kind of indirect control of illegality is generally referred to as a plea of illegality, which has been described as an action that allows the claimant to challenge the act which constitutes the legal basis for the decision that is the subject of the direct challenge. The chapter seeks to examine the research questions: In which situations may an indirect review take place? What function does the indirect review fulfil – regarding the individuals concerned as well as from a systemic point of view? How does the indirect review relate to the principles of legality and legal certainty as well as to the division of tasks between the different public organs?
An overarching observation is that indirect review in Sweden is of particular importance when it comes to general administrative acts, as these acts may – as the main rule – not be challenged in a direct review. As for individual administrative decisions, the default rule (Section 40) under the Swedish Administrative Procedure Act since 1998 is that they may be appealed to a general administrative court. However, both the Parliament and the Government can prescribe that a decision should not be appealable. This is possible because the Administrative Procedure Act is subsidiary (see Section 4) to contravening provisions in both acts of law and governmental ordinances. Hence, it still occurs that specific administrative regulations contain so-called appeal bans, meaning that a decision may not be appealed to an administrative court. In several cases, appeal bans of this kind have proven to conflict with the right to judicial review under both Article 6.1 of the European Convention on Human Rights and Article 47 of the Charter of Fundamental Rights of the European Union (see among others The Yearbook of the Supreme Administrative Court cases HFD 2015 ref. 79 and HFD 2019 ref. 43). According to the case law, if an appeal ban contravenes either the European Convention on Human Rights or the Charter of Fundamental Rights of the European Union, it should be set aside. However, in some cases, the appeal ban could be upheld, if the right to effective judicial review could instead be fulfilled through an action in a general court where the decision could be indirectly reviewed. Hence, for individual administrative decisions, the indirect review plays a significant role, above all, when a decision has become final and/or when a direct review is (still) not allowed according to the current legislation, such as when there is a so-called appeal ban.
Indirect review of general administrative acts
An indirect review of a general administrative act could take place in a legal proceeding in which it forms the legal basis for an individual decision – be it a procedure before a general or an administrative court, before the government, or before an administrative authority at the state or municipality level. An indirect review of a general administrative act may also take place within an action for damages against the state. In both cases, the right and duty to control the legality of the general administrative acts are established explicitly in the Instrument of Government (the Swedish Constitution), together with the provisions regarding judicial review of acts of laws and governmental ordinances.
According to the Instrument of Government, all public bodies – both courts and administrative bodies – have a right and duty to control the legality and constitutionality of provisions that are applied. According to Chapter 11 Article 14 and Chapter 12 Article 10, respectively, of the Instrument of Government, a court or other public body shall not apply a national provision that is found to conflict with a rule of fundamental law or another superior statute. The same applies if a procedure laid down in law has been disregarded in any important respect when the provision was created. These provisions on judicial review apply to acts of law and ordinances adopted by the government, as well as regulations (general administrative acts) adopted by administrative authorities or municipalities. If Parliament has adopted the provision under review through a legislative act, particular attention shall be paid to the fact that the Parliament is the foremost representative of the people. However, if the provision is adopted by the government through an ordinance or, after delegation, by an administrative authority or a municipality, no such limitation applies.
As the system is constructed, the courts or other reviewing bodies shall, in principle, assess the constitutionality of legal rules and, if these rules are found to be unconstitutional, set them aside through the reviewing body’s own motion (ex officio). However, as stated in the literature, in practice, the initiative would most likely come from the individual who is affected by the challenged provision. Hence, in practice, the persons who have standing in the legal procedure in which the indirect review takes place will have the possibility to invoke such a review of general administrative acts. There are no temporal limitations regarding the invocation of this kind of review.
Indirect review of individual administrative decisions
Like the case of general administrative acts, individual administrative decisions may be indirectly reviewed in situations in which they are applied – by either another administrative authority or a court – as well as when an individual brings an action for damages against the state or a municipality. However, in contrast to the indirect review of general administrative acts, the indirect review of individual administrative procedures is not regulated in a written law but follows from case law.
An important situation in which an individual administrative decision may be reviewed indirectly is when the decision constitutes a legal basis for another administrative decision. The question then arises whether the decision made by one body shall have a binding effect on the decision made by another body. It could be – among other things – a decision about national registration or about a certain university degree; such decisions are generally accepted as a basis for subsequent decisions. However, there is a degree of room for the competent court or administrative authority that applies the decision to control the legality – but generally not the suitability – of the applied decision. If the body that conducts the indirect review finds that a decision is illegal, it may decide not to apply it in the current process. Parallel to situations in which general administrative acts are indirectly reviewed, an indirect review of an individual decision may not lead to a change or an annulment of the indirectly reviewed decision. Rather, the body that conducts the indirect review may decide not to contribute to its application. However, if the errors are manifest, the challenged individual decision may be disregarded as a ‘nullity’. If so, the reviewing court or other authority may issue a so-called ‘declaration of nullity’ (nullitetsförklaring). Such a declaration does not entail the annulment of the decision but merely a determination that the decision has never existed and, hence, has no legal effect at all. It should be noted that this kind of nullity review is not a common or very well-developed feature in Swedish administrative law.
An overall assessment of the Swedish system for direct and indirect judicial review
It shall be noted the indirect review in Sweden, especially when it comes to the indirect review of individual administrative decisions, is not a particularly frequent feature. However, the possibility for courts and other review bodies to control the legality of applied administrative measures even when they have become final or cannot be reviewed directly is of great principal importance. The indirect review may function as a safeguard mechanism for the individual as well as a control of the legality of administrative action. Because the court or other public body that conducts the indirect review may not annul or change the decision, but only decide not to contribute to its application, the division of tasks can be regarded as maintained.
Overall, the Swedish system for indirect review of administrative actions seems to balance the different interests associated with the phenomenon rather well. In particular, it strikes a fairly good balance between the principles of legality and legal certainty, as it allows for pragmatic solutions in each case. Regarding possible gaps in judicial protection, it is, above all, the direct review that has been discussed. As highlighted in the chapter, Swedish law still contains so-called appeal bans, which may conflict with the requirement of judicial protection under European law. In this respect, a more fundamental review of the system for judicial protection would be advisable.
Posted by Torvald Larsson, post-doctoral researcher at the Faculty of Law, Lund University (https://portal.research.lu.se/sv/persons/torvald-larsson).
Suggested citation: T. Larsson, “Indirect review of administrative action in Sweden“, REALaw.blog available at https://realaw.blog/?p=2215