Sweden, Fundamental Rights and the EU Charter

In the Swedish constitutional tradition, the idea that omnipresent fundamental rights should take precedence over national legislation and decisions of public bodies has been controversial. Indeed there is a slow transition from a system where the citizens’ rights were considered to be ensured ex officio by a public administration monitored by Ombudsman offices, to a system based on fundamental rights that can be invoked against the public administration in courts. Although Swedish authorities and courts have since 1980 had a duty to assess the validity of domestic sources of law under the ECHR it is manifested in the Instrument of Government that all public power shall be exercised under the law in terms of legislation enacted by the Parliament. Efforts were made to maintain a dualistic approach to the ECHR by incorporation of its provisions in Swedish law. In general, fundamental rights are largely particularised in domestic legislation and explained by the legislator in the travaux préparatoires. Nonetheless, the discrepancies between the Constitutional rights and the Convention rights have sometimes proved to be untenable as the legislator is inclined to give the national system precedence. Hence, the courts have shouldered a more active role to ensure compliance with European standards, and this became even more necessary pursuant to the Country’s accession to the EU in 1995. According to Chapter 10, section 6 of the Instrument of Government, the national Parliament is authorised to transfer powers to the Union as long as the Country’s form of government and the fundamental rights in the Instrument of Government and the ECHR are left unaffected. As a result Act (1994:1500) was adopted to provide a conduit pipe for EU law into the domestic legal system. Gradually the supremacy of EU law and the effects of legislative acts transposing the rights and freedoms enshrined in the provisions of the EU Charter into Swedish law, is transforming the domestic legal system. In case secondary legislation is not given the intended effect, provisions in the EU Charter may take upon direct effect independently in the national legal systems in parity with provisions in the ECHR. Particularly the direct effect of the right to a fair trial under both Article 47 of the EU Charter and Article 6 of the ECHR has been palpable in Swedish law. Also the ne bis in idem requirements under the two regimes have greatly influenced the domestic legal system. Indeed, the rights and freedoms in the ECHR and the EU Charter are to a great extent approximated. However in case of a norm conflict the primacy of one system over the other depends on what supranational court decides the case. Having said that, it follows from Chapter 10, section 6 of the Instrument of Government that the ECHR sets the limits in the Swedish legal system. As the Parliament has no competence to transfer powers to the EU in conflict with the Instrument of Government or the ECHR such a Union measure would be ultra vires. At the end of the day, Swedish constitutional law prevails over EU law. In contrast, there is no constitutional limitation of the obligation to give effect to the rights and freedoms of the Convention system.