1 Introduction
As the supreme instance in a three-tiered system of general administrative courts, the main function of the SAC in Sweden is to guide the lower instances by setting precedents. To fulfil this function, the SAC hears cases on appeal in administrative matters if it decides to grant a leave to appeal. The Court may grant leave to appeal either because there is a need for guidance (precedence) or, which is more unusual, because of extraordinary reasons (for example when the outcome in the administrative court of appeal is due to a grave omission or a mistake which is not related to the legal examination). In its function as the supreme instance in administrative matters, the SAC influences lower administrative courts and administrative authorities at both state and municipal levels. However, the SAC and its justices also have an impact on the legislature, that is the Riksdag (the Swedish Parliament). This contribution discusses relations between the Swedish SAC and the legislature (Riksdag), focusing on how Sweden balances popular sovereignty with judicial independence (Sections 2 and 3). To illustrate this relationship, the so-called Cementa case is used as an example (Section 4).
2 The Influence of the Legislature on the SAC
The SAC (Högsta förvaltningsdomstolen, originally Regeringsrätten – the Government Court) was established in 1909, the same year as the Council on Legislation was introduced. The aim of establishing the SAC was partly to strengthen the legal security of individuals and partly to relieve the Government from the handling of appeal matters. Today, the fundamental legal framework for the SAC is set out in Chapter 11 of the 1974 Instrument of Government, the central fundamental law in Sweden. More detailed provisions about the judicial tasks of the general administrative courts, as well as the organisation of the courts, are to be found in the General Administrative Court Act and provisions about the legal proceedings of the general administrative courts are to be found in the Administrative Court Procedure Act.The Instrument of Government states that a person may serve as a member of the SAC only if he or she holds currently, or has held previously, an appointment as a permanent salaried judge at the SAC or at the Supreme Court.
3 The Impact of the SAC on the Legislature
Under Chapter 8 Section 20 of the Instrument of Government, there shall be a Council on Legislation, which includes justices or, where necessary, former justices of the Supreme Court and the SAC, to pronounce an opinion on draft legislation. Hence, the Council on Legislation participates in preventive control of legislative proposals. Chapter 8 Section 21 of the Instrument of Government regulates the Legislative Council’s review area. It lists several kinds of acts of law, where an opinion of the Council on Legislation as a main rule shall be obtained before a decision regarding the legal act is made. The Instrument of Government provides for rather detailed rules about the grounds of the Council on Legislation’s review.
Sweden applies a decentralised system for judicial review of legislation. Under the Instrument of Government, all courts and other public bodies have a right and duty to control the constitutionality of provisions in acts of law and other regulations. As for the judicial review by courts, the relevant provision is to be found in Chapter 11 Section 14 of the Instrument of Government. It is worth noting that a court’s decision not to apply a provision because it conflicts with a constitutional or other superior rule does not mean that the provision is repealed or otherwise limited. Hence, a court cannot declare a piece of legislation null and void. The Instrument of Government clearly states that no law may be amended or abrogated other than by an act of law (Chapter 8 Section 18).
4 The SAC and the so-called Cementa case
The so-called Cementa case is one of the latest examples of how there could be a “tussle” between lawyers and politicians. The Company Cementa, now known as Heidelberg Materials Cement Sverige, is the sole productor of cement in Sweden, with plants in Slite on the island Gotland in the Baltic Sea and in Skövde, Västergötland on the mainland. The cement produced by Cementa/Heidelberg Materials Cement Sverige is crucial for, among others, the industry in the North.
In 2017, Cementa applied for a continued and extended mining permit regarding the plant in Slite. In January 2021, the Land and Environment Court approved the application, and a permit was granted. However, the matter was appealed to the Land and Environment Court of Appeal, which, in July 2021, reversed the decision of the Land and Environment Court. The reason for the rejection was, according to the Land and Environment Court of Appeal, that the company’s environmental impact assessment was so deficient that it could not be the basis for determining the environmental impact of the operations. A consequence of the Land and Environment Court of Appeal’s rejection was that the company would have no valid permit after 31 October 2021. Following the decision of the Land and Environment Court of Appeal, a cement crisis was announced. The fact that Cementa would have no valid extraction permit after 1 November 2021 would put an immediate stop to future quarrying and jeopardise the entire cement production in Sweden, as the vast majority of all the cement used in Sweden comes from Slite.
In order to ensure that Cementa could continue its production and secure the cement supply in Sweden and thereby avoid major negative consequences for both private and public actors, the Government, in August 2021, presented a bill proposing changes to the Environmental Code. In short, according to the proposal, the Government would get an autonomous right to, as a first instance, examine and decide on an application for a time-limited permit to quarry limestone. Before the Government bill was presented to the Riksdag, the Government decided to refer to the Council on Legislation. The Council on Legislation was critical regarding the proposals and decided not to endorse the proposals. The reason was that the Council noted that the provisions had been formulated to apply only in a single case. Therefore, the proposed legislation appeared as a measure taken not to change the legal rules in general but to correct the outcome of a permit process, invalidated by a court.
Nevertheless, despite the criticism, the Government chose to move forward with the bill. After deliberations within the Riksdag, the Riksdag decided to adopt the act of law on the 29th of September 2021.
On the 18th of November 2021, the Government granted the company permission to continue mining operations at the mines on Gotland under the new law. The decision by the Government was contested by several environmental organisations through an application for a judicial review under the Legal Review of Governmental Decisions Act at the SAC. The court decided that the decision of the Government should stand. The SAC noted that the principle of generality is formal and that from a formal point of view the legal text was generally formulated.
5 Concluding remarks
Generally, Swedish constitutional law is much focused on the principle of the people’s sovereignty. In this, the Riksdag has a central position as the foremost representative of the people. Certainly, the last decades have meant a new awareness of vital constitutional ideals and principles, such as a more prominent role for the courts in the constitutional system. However, the basic principles of the Swedish constitution still apply. Notably, in constitutional matters, it is still largely the Riksdag that has the last word. The Cementa case is a good example in this regard.
Posted by Torvald Larsson, LL.D., Senior Lecturer at the Faulty of Law at Lund University (ORCID : 0000-0003-3824-8450)
This blog post is a summary of the following book chapter: Torvald Larsson, The Supreme Administrative Court and the Legislature in Sweden, in Wojciech Piątek (ed.), Beyond Adjudication. Exploring the Multifaceted Role of Supreme Administrative Courts, Edward Elgar Publishing Ltd. 2026, pp. 148-168.