Europeanisation of the Proportionality Principle in Denmark, Finland and Sweden

Under the influence of EU law and the ECHR, proportionality has developed into a central feature of contemporary European administrative law, on both the national and the Union level. The article examines this development with respect to the three EU Member States of Denmark, Finland and Sweden. These Nordic legal systems share certain fundamental conceptions of law, such as the limited importance of legal formalities and the associated ‘pragmatism’; the more limited role of all-embracing legal principles; and the central role of and trust in the legislator. These Nordic experiences may therefore differ from both continental (‘civil law’) and Anglo-Saxon (‘common law’) attitudes to proportionality and may contribute to a bigger picture of some features of the phenomenon of Europeanisation. The main question for the article is how the principle of proportionality in administrative law has developed and responded to this European influence in the three states.


Introduction
Proportionality in a broad sense is closely related to the very concept of law. We need only think of Iustitiathe personification of law, with her scalesbalancing interests against each other. 1 Although the terms and concepts in this field have varied and developed over time, some requirements of reasonableness and similar notions have existed in Western legal thinking for a very long time. 2 Proportionality in the modern sense is also undoubtedly a central feature of contemporary European administrative law, on both the national and the Union level. Furthermore, the concept is enshrined on the constitutional level in many legal systems. The principle today is often described as consisting of three elements: a measure must be suitable for achieving its (legitimate) purpose, it must be necessary in the sense that less restrictive measures are not sufficient for this purpose, and it is proportional in the strict sense, ie that the general good outweighs the restriction involved. 3 4 (22) that could be seen as limiting the discretion of democratically elected and accountable politicians. 13 Although there are strong common features, there are also important differences among the countries, owing to their differing historical and political developments. These differences are especially visible in the field of administrative law, where Denmark (as well as the other 'West-Nordic' states of Iceland and Norway) features a state administration mainly hierarchically organised under a minister in the governmental ministries. In the 'East-Nordic' states of Finland and Sweden, on the other hand, the central administration is organised as separate public bodies, which to a considerable degree make decisions independently of the ministers. These differences are linked to the varying legal structures for accountability and appeal of administrative decisions. Whereas Danish administrative decisions may be challenged before a general court, which conducts a rather strict legality review, the administrative courts of Finland and Sweden have a wider mandate, even including the possibility of amending the appealed decision in substance. 14 These differences provide slightly different preconditions for the influence of European law in these countries.
Another difference, which may be linked to the historical and political developments during the twentieth century, is the constitutional role of the courts. Although the legal thinking of all three countries is based on trust in the legislator, Sweden has had an exceptionally strong political tradition of limiting the influence of judges on decisions made by elected politicians.
The background to this has been an uninterrupted constitutional development based on structures which in part predate the ideas on separation of powers, and which therefore never held a strong position in Swedish legal thinking. 15 Furthermore, and equally important, was the sceptical stance taken by the Social Democratic party regarding the protection of individual rights in courts; the party was the dominant political force in Sweden during most of the twentieth century. 16 In combination with Scandinavian legal realism, the scepticism 13  Although the three legal systems resemble each other, I am grateful for the help from colleagues in assisting me in navigating in these similar but sometimes very different waters in the neighbouring countries.
In the following, I turn to the question of the Europeanised proportionality principle in the three Nordic EU states by first looking at the emergence of the principle in national law (Section 2). After this, I explore the tendencies of Europeanisation from around the beginning of the 1990s (Section 3). The developments in the early 1990s are central to the understanding of Europeanisation of Nordic public law, because this was when Finland and Sweden joined the EU. As will be dealt with there, this argument could also be made for Denmark, even though Denmark has been an EEC member since the early 1970s. In Section 4, I provide some concluding remarks and return to certain unresolved questions and possible future developments.

The Emergence of the Principle in National Law
To a certain extent, the Nordic legal systems have always been Europeanised. It is true that one of the defining features of Nordic law is the lack of a comprehensive reception of Roman To find the roots of today's proportionality principle in the Nordic EU countries, one has to look to much more recent history. As is well known, ideas of proportionality developed in German police law in the nineteenth century, and later expanded into other fields of administrative law as a separate principle. In the time after World War II, the principle also gained importance on a constitutional level in several legal systems. 28 This development was reflected in the laws of the Nordic countries, which at the time were under considerable influence from German law. Given the slightly different political and legal circumstances, the reception of the idea of proportionality was not identical in Denmark, In Sweden, one of the early scholars of administrative law, CA Reuterskiöld, claimed already in 1919 that the public-sector use of force was limited by a requirement of necessity. 31 Later on, Nils Herlitz, one of the leading scholars of Swedish twentieth-century public law, acknowledged the existence of a proportionality principle, which limited the administrative authorities' use of discretion within the framework prescribed by legislation. 32 Various Swedish terms wereand to some extent still areused for the elements of proportionality, such as the principle of necessity (behovsprincipen) or the principle of the least interference (det lindrigaste ingreppets princip). 33 As these references show, a principle of proportionality was clearly established in the administrative law of the three countries by the middle of the twentieth century. It should be noted that since at least the late nineteenth century, Nordic legal scholarship had maintained contacts and discussions across borders, including the recurrent meetings of scholars and practitioners at the Nordic Lawyers' meetings (Nordiska Juristmöten) and other fora. 34 Therefore, to some extent, the developments in the three countries could be seen as a result of common Nordic discussions. In all three countries, references to proportionality in the works of this time were rather brief, and the principle was not frequently invoked in reported caselaw.
It is possible that the wider scope of scrutiny available to parliamentary ombudsmen, an office established in all the three countries by the middle of the century, could have provided more room for considering the impact of the principle in individual matters. 35 In Sweden and Finland the wide scope for assessment by the administrative courts may also have given room for pragmatic methods of coping with disproportionate measures.
When the principle of proportionality was established in this way in Denmark, Finland and Sweden, it was clearly a general principle of administrative law and not of constitutional law.
The requirements of proportionality in the use of public power were not thought to generally limit the legislator by virtue of a general constitutional principle. There was, quite simply, no support for such a general principle in the written constitutions. Later, in the spirit of the developing welfare states of the 1960s and 1970s, it would have been problematic to think in terms of general principles limiting the scope for legislation. Rather, the focus was on the thorough process of democratically founded legislation, which was thought to provide reasonable results. 36 In this way, the legal culture of all three countries was based on a farreaching trust in the mechanisms of the democratic system; in other words, an idea of 'the good state'. 37 In addition to this, the impact of Scandinavian Legal Realism in Denmark and Sweden meant that the very idea of legal principles existing beyond the written legislation could be criticised as metaphysical speculations about natural law without any value. 38 The use of the proportionality principle in administrative law was thus confined to the use of force, primarily by the police. The assessment of proportionality, then, concerned the use of discretion by the authorities within the scope provided by legislation.
Especially in the field of taxation, the demands of the expanding welfare state came to be at odds with ideas of fairness and proportionality in the 1970s. Taking Sweden as a clear example, this tension was highlighted by certain events relating to tax law. In 1975, the world-famous director Ingmar Bergman was arrested for alleged tax fraud in front of his actors during rehearsals at the Royal Dramatic Theatre. He was later acquitted but took offence and decided to emigrate. In the following year, the children's book author Astrid Lindgren found herself being taxed with 102 percent of her income, and wrote a satirical fairy-tale which spurred further political debate. 39 Although not necessarily acknowledged at the time, both situations actually encompassed aspects of proportionality, or rather the lack thereof, viz in the choice of means by the police and in the legislation. In Finland, the traditional scepticism to constitutional protection beyond legislation slowly gave way during the late 1980s to an emerging human rights culture and ideas of a 'rightsbased constitutionalism'. 42 This development in academic discourse paved the way for subsequent changes in the written constitution (see below).
The Swedish constitutional reform of the 1970s included provisions on fundamental rights, with proportionality requirements for restrictions, similar to the provisions of the ECHR. 43 Traditional Swedish administrative structures, with limited access to the administrative courts in matters that were considered better suited for a political balancing of interests, were challenged by a series of judgments against Sweden in the ECtHR. 44 However, following the pattern of deference to the legislator that was common to all three countries, constitutional review on grounds of proportionality still was very limited in Sweden. 45 On the administrative level, there were references to proportionality in the legislation regulating special administrative fields. A prominent example from Swedish law is the 1984 Police Act, which requires that a police officer exercising an official duty shall intervene in a way that is justifiable in view of the object of the intervention and other circumstances, and that the use of force shall be limited to what is necessary to obtain the intended result. 46 The Western European trend of awarding a greater degree of judicial and constitutional protection may be labelled constitutionalism or judicialisation. This development was not greeted with enthusiasm by all commentators in the Nordic countries. In 1990, Professor Bent Christensen, a leading scholar of Danish administrative law, concluded that the distribution of roles between the legislator and the courts was being challenged. He described how courts adjudicating administrative cases traditionally had taken a deferential position in relation to the legislator. Taking this view, it was not for the courts to put themselves in the place of the This critique reflected the traditional far-reaching trust in the legislator to act within constitutional boundaries, and the scepticism to judicial power, existing in all three countries.
It also relates to the separation of powers, or more pragmatic division of labour, between the legislator and the courts. From the early 1990s, development continued, focusing on increased constitutional protection of individual rights towards the state and judicial review. This development was spurred by the constitutional Europeanisation through the influence of the ECHR and EU law. 50 As so often in legal development, the direct causal relations are not easy to follow.

Tendencies of Europeanisationfrom the 1990s and onward
When it comes to the ECHR, Denmark and Sweden have been parties to the convention since the early 1950s. 51 In the dualist tradition of the two legal systems, however, the convention had not been considered as directly applicable in legal proceedings in national courts, and therefore its impact on case-law had been fairly limited. 52 In the 1990s, both Denmark and  In Finland, the EU accession (and the incorporation of the ECHR, see above) coincided with a constitutional reform, which reinforced protection of individual rights. In this way, the role of the courts under EU law meant that the traditional restrictive view on constitutional review had to be abandoned in purely internal situations as well. The new Constitution of 1999 (in force in 2000) introduced a written rule on constitutional review. 64 Finnish legal scholarship has generally concluded that the EU membership greatly strengthened the role of the courts. 65 Furthermore, in 1994, the Constitutional Committee of the Eduskunta/Riksdag (the Finnish Parliament), the central body for interpreting the Constitution and in some respects parallel to a constitutional court, established the principle that restrictions on constitutional rights must fulfil a criterion of proportionality. 66 It should be noted that the Constitutional Committee regularly hears experts, including those from professors of constitutional and administrative law, and this means that there is room for direct influence from academia on constitutional interpretation. 67 In 2003, a provision on the principle of proportionality was introduced in the Finnish Administrative Procedure Act. 68 One of the main reasons for adopting a new act of law was the requirements of EU law. 69 The Supreme Administrative Court has referred to the provision and the principle in several cases. Notably, the Supreme Administrative Court has held that the use of the principle is limited by applicable legislation in the individual situation.
In a case on an excess emissions penalty fee under the framework for greenhouse gas emission allowance trading (KHO 2009:78), the Supreme Administrative Court stated that the provision in the relevant Finnish Act was absolute, and did not support any adjustment of the fee. 70 The latter statement would seem to imply that the principle cannot be used to set aside requirements in Finnish legislation (save for situations where European law takes precedence). In contrast with Danish law, Finnish law does not seem to treat domestic and European proportionality principles as being different in substance.
Perhaps the clearest impact of the principle is found in Sweden, which motivates a more detailed account here of the developments there. A number of cases before the Supreme Administrative Court highlighted the growing importance of the proportionality principle from the mid-1990s. At this point in time, there was no general provision on proportionality in the Swedish Administrative Procedure Act. Although the principle was mentioned in legal literature (see Section 2), it was rarely used in case-law. 71 As stated above, the principle was primarily relevant in interventions for maintaining public order and safety. Legal scholarship therefore concluded that wider use of the principle constituted a challenge for the Swedish public administration. 72 In 1996, howeverone year after Sweden joined the EU, the Supreme Administrative Court expressly confirmed that a more general principle of proportionality existed in Swedish law.
The court based this finding on previous case-law and the incorporation of the ECHR in Swedish law. In two of these cases, which concerned measures for the protection of nature, it quashed decisions that were too far-reaching in limiting the use of land in relation to the aims of the legislation. 73 In one further such case, the court further held that a decision not to grant exemption from a statutory rule on land protection was disproportionate and should be changed. 74  principle, as well as other aspects of EU and ECHR law, requires a more complex balancing of interests than the traditional application of clear, written rules. 81 Taking this kind of role could be awkward for a judge who is accustomed to a clearer legal role of applying rules, and leaving the difficult balancing act to the politicians and machinery of legislative drafting.
Notably, the Swedish courts, still without a provision in written legislation, started to make proportionality assessments outside the traditional field of police law or the more recent fields of fundamental rights, the ECHR or EU law. Examples include decisions on repayment of housing allowance, the adoption of a local plan (for land-use planning), and the duty of a liquidator of a company to pay the company's remaining taxes. In all these cases, the Supreme Administrative Court could apply the principle by referring to the scope for discretion in the applicable legislation, with wordings such as 'special circumstances', etc. 82 The link to the scope for discretion provided by the applicable legislation would seem to provide a basis for adapting the use of the principle to sector-specific considerations.
The limits of the principle were made clear in a case from 2015 on revocation of a driving licence owing to drink-driving. 83 The relevant legislation allowed for the more lenient measure of requiring an alcolock instead of revoking the driving licence, provided that the driver did not also consume narcotics. The legislation did not lay down any exceptions to this rule. In the case, however, the applicant had taken medicines that were classified as narcotics, according to a physician's prescription. One judge held that in such a case, the court could deviate from the written legislation with reference to the proportionality principle, particularly as the lack of exceptions in legislation was likely a mistake in the drafting of the relevant act of law. The majority of the court, however, did not comment on the proportionality principle and decided that the driving licence should be revoked. 84 The dissenting judge, writing extrajudicially, later concluded that the outcome of the case clarifies that the scope for proportionality assessments is limited by the relevant legislation, and that the principle is therefore of limited use to courts as a constitutional principle. 85 In 2017, the legislation was amended so that an alcolock would be allowed in such situations. 86 The Government referred to the Supreme Administrative Court judgment in its proposal. 87 This illustrates the traditional distribution of roles between the legislator and the courts. Furthermore, the proportionality principle was also important for the new Swedish Administrative Procedure Act of 2017. One of the leading ideas behind this act was to adapt Swedish general administrative legislation to the requirements of EU law (and the ECHR). In this way, it was thought, it would not be necessary to distinguish between cases that did or did not involve EU law. 90 Here, Sweden has taken a different path than Denmark (see above). In the new act, a provision on proportionality was introduced, thus following the Finnish example. 91 This requirement applies only to the formal decision-making of the public authorities, but also to other, more practical administrative activities. 92

Concluding Remarks
Undoubtedly, the three legal systems discussed in this article have undergone far-reaching changes owing to Europeanisation. This development has been especially visible since the 1990s. The proportionality principle provides a good example of this development. As was shown above, Swedish law has been particularly affected by these changes.
Relating to the proportionality principleand, I dare say, to most other principles of public lawthis Europeanisation did not mean the introduction of entirely new concepts for the Nordic legal systems. The European principles did not arrive on an empty shore. As shown above, the principle of proportionality had already been established in the first decades of the twentieth century. This development had taken place under strong inspiration from German public law, but it also related to even older conceptions of law and fairness. These concepts, in turn, may be traced far back in Nordic legal history, but are also linked to influence and European law. As stated above, and contrary to nationalist romantic beliefs, Nordic law has always been part of European developments.
The principle of proportionality as established by the mid-twentieth century was limited in scope and intensity, since it related predominantly to the use of force by the police and did not take a central place in descriptions of administrative law. Through the developments described above, the principle moved beyond the rather limited field of police law to administrative law in general, and to constitutional law concerning limitations on fundamental rights; recently, it has even influenced the relations between the central state and local government in Sweden. Europeanisation, then, can be seen as the combined effects of the ECHR and EU law on existing domestic rules and principles. European law has thereby functioned as a catalyst, reinforcing the pre-existing national administrative legal concepts and expanding them well beyond administrative law.
The preceding account includes some examples of criticism of the changed balance between the legislator and the courts. Furthermore, Danish law has been clear on the distinction between domestic and European principles, and that they are applicable in different situations.
The discussions on the possible difference between Danish law and EU lawin terms of the suitability criterion (Section 3)may be seen as an indication of a traditional idea: it is normally not the courts' place to decide on the means to be used to reach an end, because this responsibility should lie on the political level. At the same time, it should be noted that this trust in the legislator may put the individual in a less favourable position, as compared to a wider scope of assessment for the courts.
To a certain extent, the principle of proportionality has been adopted in the national systems to a degree beyond that required by European law. Here, also, the constitutional provision requiring proportionality for limitation of local self-government in Sweden is a clear example.
In this way, the concept of proportionality has influenced legal thinking beyond EU and ECHR requirements. As was stated at the outset, the causal relations in legal developments are not easy to distinguish from general societal changes. It may only be noted here that the expansion of the principle coincided with a greater focus in the three countries on the position of the individual with respect to the public sector.
In light of the development during the last few decades, the proportionality principle is undoubtedly well established today as a general principle in Danish, Finnish and Swedish law. There are, however, unresolved questions as to the understanding of the principle and the effects of Europeanisation. Here, we also see certain differences among the three Nordic EU states.
First, a matter of discussion is the relation between the domestic proportionality principle and the principle as established under EU or ECHR law. This question has primarily been discussed in Danish and Swedish law, whereas Finnish law seemingly has not devoted as much attention to the matter. As mentioned, Danish legal discourse has underlined that the principles are not necessarily identical, whereas Swedish law has taken a different path, aiming for the Swedish principle to be adapted to the European one, also in situations outside the scope of European law. The Danish viewpoint fits with the idea of procedural autonomy in the sense that national administrative rules and principles should be applied in the absence of EU law on a certain matter. The Swedish position, in contrast, could be defended by emphasising the practical difficulties for national authorities and courts to apply different principles, depending on whether or not the case falls within the scope of EU law. 94 In the perspective of the individual, the use of a single standard, could be preferable. The different positions of Denmark and Sweden in this regard could be explained by differences in legal culture, with Swedish law being more 'pragmatic' (or, indeed, primitive) in its conceptualisation of administrative law, and Danish law taking a more principled position, which also fits with a view of Danish law being more reluctant to Europeanisation.
Second, the more specific content of the principle may still need to be elaborated in the national legal systems, especially considering that the role of judges to assess politically controversial matters is relatively new to the three legal systems. As has been touched upon, the content of the three elements of proportionalitysuitability, necessity and proportionality in the strict sensemay be understood differently in different contexts. This highlights the question on the scope for using the principle in a sector-specific way. The Swedish example of the Barsebäck and Wermdö Krog cases could be seen in this light, since they concerned special fields of law that were politically sensitive. At the same time, the idea of the principle as a protection for legal certainty would speak against such an differentiation between different sectors.
Third, the constitutional position of the principle is still uncertain. As described above, the principle has moved from being relevant primarily to police law to being relevant to some aspects of constitutional law. In all three countries, Europeanisation has contributed to the