Introduction
In a contribution to the book Article 47 of the EU Charter and Effective Judicial Protection – Volume 2: The national courts’ perspective, I had the opportunity to look at the Swedish courts’ application of article 47 of the Charter and the principle of effective judicial protection since 2009. Before 2009, the occurrence of the principle of effective judicial protection in Swedish case law was limited (see J Engström, The Europeanisation of remedies and procedures through judge-made law – can a Trojan horse achieve effectiveness – the Swedish experience, EUI 2009.) The judiciary struggled to take on the role that the principle of effective judicial protection conferred on them. Certain features of the judicial system were suggested as reason for the limited impact of this principle in the Swedish legal habitat; the positivist understanding of law, the limited use of general principles of law as a source of law and the exercise of judicial restraint. The latter depends on lawyers and judges having a weaker position in Sweden than in other Member States and judges view their role as one where they assist in realising the legislature’s intent, rather than being an independent power protecting individual rights and ensuring the legislature’s respect of the constitutional limits. The Chapter discusses Swedish how the Swedish general courts (allmänna domstolar) and general administrative courts (allmänna förvaltningsdomstolar) – each containing three levels – have applied the principle of effective judicial protection in the last 15 years with a qualitative and a quantitative assessement.
Quantitative assessment of Swedish case-law
To identify the case-law for my analysis I used the search engine provided by the Swedish courts’ administration and used the term ‘Article 47 of the EU Charter’. I found only 8 cases, and therefore made a number of complementary searches, using such key words such as ‘effective remedy’, Article 6 ECHR, ‘principle of effectiveness’, ‘principle of effective judicial protection’. While one might have hoped that the entire effective judicial protection acquis would be neatly packed in the container of Article 47 of the Charter by now, this is not so. The CJEU continues using other legal bases from the pre-Charter era (full effectiveness, the twin principles of effectiveness and equivalence and the principle of effective judicial protection), separately or coupled with Article 47. Questions such as how the different concepts relate to each other, if they contain different obligations (see the seemingly contradicting messages in Case C-432/05 Unibet EU:C:2007:163, Case C-268/06 Impact EU:C:2008:223 as compared to Joined cases C-317/08, C-318/08, C-319/08 and C‑320/08 Alassini and Others EU:C:2010:146, Case C-12/08 Mono Car Styling EU:C:2009:466 and Case C-279/09 DEB EU:C:2010:811) and the interplay with Article 47 (see e.g. Case C-73/16 PuškárEU:C:2017:725) continue to rattle the minds of judges and academics.
Extending the search to include also such EU principles, I found ca 65 additional cases where EU law has been invoked to ensure effective procedures and remedies in Swedish courts. Relying on other principles and concepts is hence more common than using Article 47. Especially popular are the principle of effective judicial protection and the principle of effectiveness. The courts reluctance to use Article 47 as a self-standing legal basis might stem from the fact that they consult relevant EU case-law, which continue to be decided on other legal bases, and naturally this feature remains also in domestic law.
The division of cases over the civil, administrative and special courts was fairly equal and EU law’s effect on remedies and procedures is a fact acknowledged by all the different courts. The policy areas most concerned were public procurement (20% of the cases) and migration (10% of the cases), but the principle also figures in a number of areas such as environmental law, tax law, transport law, competition law, criminal law, equal treatment law and labour law.
The alleged shortcomings in the Swedish legal system were many – the most common being the right to judicial review of administrative decisions or measures. Other interesting issues were the possibility for a trade union, in its own right, to obtain compensation for discrimination of workers for violation of a collective agreement; civil courts’ jurisdiction to hear a case for restitution of sums of VAT paid contrary to EU law; the right to a retrial when there is a judicial decision infringing EU law and the time limits for this request; what are reasonable time limits to introduce a compensation claim for flight delays; a right to judicial review in the framework of an inspection of business premises under competition law; a plea of illegality of a Government decision to list certain areas in the Natura 2000 network; the possibility to annul/alter terms of a collective agreement that were discriminating against persons with disabilities. Swedish case-law thus displays a wide sample of highly interesting issues for effective judicial protection, demonstrating an increasing knowledge by the parties and the courts of the potential effects of EU law on remedies and procedures, something that was more unlikely 15 years ago.
The analysis thus shows the increasing importance of the principle of an effective judicial protection before Swedish courts in the last ca 15 years, there being ca 70 cases litigated up to the last instance since 2009. It is not per se the codification of previous principles into Article 47 that has contributed to EU law’s increased importance on national remedial and procedural rules, but this derives from the reliance on general EU law principles from the pre-Charter case-law. The increased Europeanisation of Swedish remedies and procedures also shows in the number of legal areas in which the principle is applied by Swedish courts, as well as the wide range of procedural and remedial rules affected.
Qualitative assessment of Swedish case-law – The absence of preliminary references
How do Swedish courts fare in understanding and applying the principle of effective judicial protection and what methodology is used? In most cases, the courts identify and use relevant case law from the CJEU. They frequently resort to Swedish preparatory works, in line with Swedish legal tradition, as well as Swedish academic literature.
The use of preliminary references to clarify the principle is sparse and only occurred on one occasion (MIG 2016:24). This is despite the fact that 2/3 of the ca 70 cases were decided by a last instance court, a court thus obliged to refer under 267(3) TFEU, unless the CILFIT criteria are met. Moreover, Swedish legislation (Lag (2006:502) med vissa bestämmelser om förhandsavgörande från Europeiska unionens domstol) and EU law (Case C-561/19 Consorzio Italian Management EU:C:2021:799) require last instance courts to motivate decisions of non-referral. Such a motivation was provided in only 11 non-referred Swedish cases (NJA 2018 s. 936 Söderberg; NJA 2016 s. 320; NJA 2015 s. 438 Systembolaget; NJA 2015 s. 605 Davidoff; NJA 2013 s. 746; MIG 2020:4, AD 2016 ref 55; MÖD 2012:48 Naturskyddsföreningen Varberg; HFD 2016 ref 13; HFD 2015 ref. 79 Nordulv; RK 2012:4 TeliaSonera). In those cases, at least one of the parties asked for a referral. The need for a preliminary reference is thus not examined and motivated ex officio by Swedish courts of last instance, contrary to EU law.
Moreover, when motivating a non-referral, Swedish courts use general statements; ‘there is no issue that raises any doubt about the interpretation of EU law and makes it necessary to refer a preliminary ruling’, there ‘is no reason to refer a preliminary ruling’ or that ‘the situation is so clear so that there is no room for reasonable doubt about the contents of EU law’. Such general statements fall short of the requirements of Consorzio Italian Management.
Swedish case law however also offers some good examples of discussing the principle of effective judicial protection, using EU case-law and methodology in the motivation for non-referral. This shows that Swedish courts are becoming more familiar with applying EU law (NJA 2015 s. 438 Systembolaget, HFD 2015 ref 79 Nordulv, NJA 2018 s. 936 Söderberg) and do so correctly notwithstanding the absence of a preliminary reference. That Swedish last instance courts in ca 40 cases find the contents of the principle clear, despite most academics studying the area struggling with finding such clarity confirm the general picture of the liberal and lax approach offered by Swedish last instance courts to the interpretation of the CILFIT ‘reasonable doubt’ criterion (see Directorate-General for Library, Application of the CILFIT case law by national courts or tribunals against whose decisions there is no judicial remedy under national law, CJEU, 2019).
The Swedish courts’ exercise of their mandate under the principle of effective judicial protection
While Swedish courts habitually infringe Article 267 (3) TFEU, it is important to note that in a majority of the examined cases, Swedish courts nonetheless managed to interpret the requirement of an effective judicial protection, ensuring what I believe the CJEU would consider an adequate protection. They usually do so by using EU case law (HFD 2016 ref 47 Fidelity Funds, HFD 2012 ref. 29 Välfärden), previous Swedish case law and preparatory works. In the first ten years of EU membership, Swedish courts demonstrated a rudimentary understanding of the principles of effectiveness and effective judicial protection. This has significantly evolved in the last decade. We see complex assessment of proportionality, reasons behind Swedish procedural rules and EU law principles being balanced under the procedural rule of reason.
Ensuring an effective judicial protection does not stop at correctly understanding CJEU case-law, and using preliminary references to interpret national remedies and procedures; it also requires courts adopting an EU law methodology, providing the necessary protection in practical terms. The court might have to set aside national rules, apply national rules by analogy or possibly ‘create’ rules based on the principle of effective judicial protection or the Charter to grant a remedial or procedural right. These operations require a certain mindset and creativity, showing how the judicial culture of a State influences the Europeanisation process. In the past, Swedish courts were apprehensive in exercising the role of ‘reviewer of the national legal framework’ and rights’ protector. They avoided setting aside national procedural and remedial rules to give precedence to a vague and imprecise EU principle. They have grown comfortable in exercising the judicial power EU law confers on them and seem at ease in giving effect to EU law despite conflicting national standards (HFD 2015 ref 79 Nordulv; HFD 2016 ref 47 Fidelity Fund;HFD 2012 ref. 28 World Wide Web).
Consequently, the principle of effective judicial protection finally is about to take up its rightful place in the Swedish judicial habitat. It remains yet for Article 47 of the Charter to be used as a self-standing legal basis and there is yet ample room for improvement in using the dialogue in 267 (3) TFEU, but the development is positive.
Posted by Dr Johanna Engström (Legal officer, DG Justice, European Commission, Visiting professor, University of Bonn).
Suggested citation: J. Engström, ‘Article 47 of the EU Charter and Effective Judicial Protection – the perspective of the Swedish courts’ REALaw.blog available at https://realaw.blog/?p=2614
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