Introduction

The organisation of the Swedish administration departs from what is traditional in the Western hemisphere, as Swedish public authorities are organisationally separated from the Government and legally semi-independent. Administrative authorities at the national level may thus only be commanded and controlled by the Government as a whole, not by any individual minister (Chap. 7, Sect. 3 Instrument of Government (IG)). Further, all authorities, both state and municipal, are granted a constitutionally protected sphere of independent decision-making (Chap. 12, Sect. 3 IG). An important part of the Swedish administrative model is the principle of transparency and access to official documents. The administration is thus to act transparently and in accordance with the law. The unique traits of the Swedish administrative model have had an impact on the Swedish Administrative Procedures Act (APA). Content-wise, the APA reflects the traditional Swedish understanding of the role that public authorities have in the Swedish administrative model. The partially independent authorities are to use the public powers bestowed on them to guide and assist the public and the individuals whose matters are being processed. In older legal doctrine, it was often emphasised that the administrative authorities should take the individual by the hand and guide them. Beyond these service-oriented features of the Swedish APA, the interest in legal certainty for individuals has increased.

It may further be noted that neither the Swedish administration nor the administrative courts had an act of procedure until the early 1970s, when the APA and the Administrative Court Procedure Act were enacted. This occurred after an unprecedentedly long legislative process, starting in the 1940s. The basic procedural rules were thus developed in practice, within the public authorities, the administrative courts, and, perhaps most importantly, under the supervision of the four Parliamentary Ombudsmen, appointed by the parliament, the Swedish Riksdag. Following two revisions to the APA, it has been noted that this Act has finally achieved the ambition – set out in the 1940s – of a comprehensive, yet principled, act on administrative procedures.

Swedish sources of administrative law

In Sweden, administrative law is defined and delimited to mainly include rules on the organisation and forms of operation of authorities, rules on public administration, and rules on the relationship between the individual and state organs. In legal doctrine, the focus has traditionally been on processing of individual matters, whereas factual administration is dealt with to a lesser extent and other areas – such as administrative contracts – have largely been neglected. Further, administrative law is divided into subsections, including general administrative law, such as procedural law at the level of authorities and administrative court procedural law, general municipal law, sector-specific administrative law, and transparency and secrecy law.

The Swedish constitution consists of four fundamental laws, where the IG is the most central from an administrative point of view. There are also two acts on aspects of freedom of information, the  Freedom of the Press Act, including the principle of transparency and access to official documents, and the Fundamental Law on Freedom of Expression, which includes rules on media other than print media. Lastly, the Act of Succession regulates the Swedish monarchy. The IG states that the Swedish democracy is based on the principle of the sovereignty of the people – all public power proceeds from the people. The parliament, the Swedish Riksdag, is the foremost representative of the Swedish people. The basic principles of the constitution are founded on the division between the Riksdag on the one hand and the Government, the courts, and the public administration on the other. Alongside the principle of democracy, the principles of legality, objectivity and impartiality, and proportionality are the foundations of the Swedish state. The Riksdag holds the main legislative powers, but the Government may also enact general rules via ordinances, either after delegation or within a more limited area of independent competence. As regards administrative rulemaking, the Riksdag can delegate this to the Government, which may in turn sub-delegate to administrative authorities or municipalities. The Swedish administration is divided into three levels – a national level, a regional level with 21 regions, and a local level with 290 municipalities operating under the principle of local self-government.

The APA regulates basic and fundamental administrative principles that all authorities need to follow. A key aim was to draft an act that was short, simple, and easy to understand. Legal certainty for individuals and efficiency for the administration were also important aims. One interesting point is that the Swedish APA is subsidiary to other acts and governmental ordinances – of which there are many. Preparatory works are generally considered to have a high degree of legal authority in the Swedish legal system and the preparatory works to the APA are thorough. The codification of general administrative law is thus well-documented.

Once legislation has been enacted, the most important source of general administrative law is case law and statements from the Parliamentary Ombudsmen. Another important source of law, legal doctrine, has played an important role in the development of general administrative law.

The role of the administrative courts and the Parliamentary Ombudsmen

Sweden has a three-tiered system of administrative courts, consisting of twelve administrative courts, four administrative courts of appeal, and the Supreme Administrative Court on the top tier. In an international comparison, the role of courts in Swedish constitutional system has long been rather modest. Over time, the Swedish administrative courts have gradually gained a more traditional role as independent courts, not least due to influences from European law, the European Convention on Human Rights (ECHR), and EU law. Since the mid-1980s, the right to appeal to a court has undergone fundamental changes in Swedish law. The Supreme Administrative Court has through its case law established that courts are to be the primary route for legal redress, thus abandoning the tradition of administrative redress, which dates back to medieval times. This case law has subsequently been accepted by the legislator and codified in Sect. 41 APA. It should briefly be mentioned that there are two main ways to appeal administrative decisions in Swedish law: administrative judicial appeal and municipal appeal. Within administrative judicial appeal, the administrative court carries out an all-round assessment of the appealed decision, including both matters of legality and suitability or reasonableness. Thus, the administrative court has the same mandate as the authority that made the decision.

The task of reviewing general procedural matters at the administrative level has often been allocated to the Parliamentary Ombudsmen, as has application of the principle of legality and the rule of law more generally. The decisions of the Ombudsmen are not legally binding, but are considered to carry a high level of authority. In two high-profile cases within a period of four months, the Parliamentary Ombudsmen directed serious criticism at municipalities for not having respected the requirement of a legal basis for measures that encroach on the safeguards for personal integrity and private life. In one case, a municipality had employed a security investigator who carried out ‘observations’ of individuals who received financial aid. However, observations were described by the Ombudsmen as surveillance methods that only criminal investigation authorities were – in principle – allowed to use, with the aim to counter organised crime. The other case, the municipality had examined whether municipal employees had a criminal record. The Parliamentary Ombudsmen stated that the municipality’s measures constituted an intrusion into the constitutionally protected right to personal integrity (Chap. 2, Sect. 6 IG) and Article 8 of the ECHR. Any limitations of the rights must be based on law and no such basis was applicable in this case. The measures were thus found to be illegal. Furthermore, it was doubtful that the personal data processing was performed in accordance with the General Data Protection Regulation. In both cases, the Parliamentary Ombudsmen expressly based their decisions on basic principles codified in the constitution. Because the Parliamentary Ombudsmen constitute an extraordinary supervisory body, the Ombudsmen chose to inform the legislator about what had come to light and sent a copy of the decision to the Government and the Swedish Authority for Privacy Protection.

Actions in Swedish administrative law

The most important action in Swedish administrative law is the processing of an administrative matter, which results in an administrative decision. The APA is applicable to such actions taken by an administrative authority and its introductory provisions lay down the foundations of good administration, defined by the principles of legality, objectivity, proportionality, service, accessibility, and cooperation between authorities. The APA also includes provisions on general requirements for the processing of matters, such as that matters should be processed as simply, quickly, and inexpensively as possible without compromising the legal security for individuals and access to files. The design of the APA reflects the course of a matter and the four phases into which processing of matters can be divided, i.e., the initial, preparation, decision-making, and enforcement phases. Important principles codified in the APA are the authority’s investigative responsibility during the investigation of a matter and the authority’s ability to reassess decisions. As an example, it can be mentioned that the Parliamentary Ombudsmen provided guidance to a municipal social welfare board regarding what investigations are needed in cases involving children. At the same time, the board received severe criticism for requesting a forensic psychiatric examination without legal support. In addition, the board was criticised for including unnecessarily detailed, privacy-infringing, and outdated information in its investigation.

The development of the APA – an interaction between the legislator and legal practice

The first APA (1971) was a minimum regulation, to be filled in by other legal sources. This means that an administrative authority cannot simply follow the letter of the law. Instead, an administrative authority is obliged to uphold the principles underlying the law in a wider field. Naturally, the procedural protection of individuals is of central importance. One might say that general principles play a greater role in administrative law than in other areas of Swedish law. However, it should be noted that the APA has grown to become more and more comprehensive through legal reform, mainly because principles developed in practice have been codified. It is also clear that the ECHR and EU law have influenced the wording of the APA in several ways. The position of the APA as a central law for the administrative authorities has been strengthened thereby. It has been stated that through the APA 2017, the ideas behind the initial legislative work were finally realised. Even so, it may be assumed that general administrative principles will remain an important source within general administrative law.

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Posted by Jane Reichel (Professor of Administrative Law, Stockholm University) and Michaela Ribbing (University lecturer in Public law, Stockholm University)