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Administrative Constitutional Review in Sweden: Between Subordination and Independence

Wenander, Henrik LU (2020) In European Public Law 26. p.987-1010
Abstract
The article examines the power of administrative bodies to assess the constitutionality of legislation (‘administrative constitutional review’), taking examples from Swedish public law. The Swedish constitution explicitly requires all public bodies to engage in administrative constitutional review when necessary. In this way, Swedish administrative authorities have the right and duty to act as guardians of the rule of law. This competence relates to the historical development of Swedish public law, which deviates from most other European constitutional systems by organizing all state administrative authorities as separate public organs detached from the Government and the ministries. The Swedish constitutional obligation is parallel to EU... (More)
The article examines the power of administrative bodies to assess the constitutionality of legislation (‘administrative constitutional review’), taking examples from Swedish public law. The Swedish constitution explicitly requires all public bodies to engage in administrative constitutional review when necessary. In this way, Swedish administrative authorities have the right and duty to act as guardians of the rule of law. This competence relates to the historical development of Swedish public law, which deviates from most other European constitutional systems by organizing all state administrative authorities as separate public organs detached from the Government and the ministries. The Swedish constitutional obligation is parallel to EU law requirements on national administrative organs to set aside national legislation in conflict with directly applicable EU law (‘the Costanzo obligation’). Against the background of practical examples in Swedish law, the article identifies theoretical and practical challenges for administrative bodies to engage in constitutional review. These include the risk of disturbing constitutional structures by putting lower administrative authorities on par with the parliament. The possible problems of lack of legal expertise and the problem of independence in practice are also discussed. At the same time, the concept of administrative constitutional review has a potential to protect the constitutional system, including the fundamental rights of individuals. (Less)
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author
organization
publishing date
type
Contribution to journal
publication status
published
subject
keywords
EU Law, Administrative Law, Constitutional Law
in
European Public Law
volume
26
pages
24 pages
publisher
Kluwer Law International
ISSN
1354-3725
project
Den offentliga förvaltningens konstitutionella roll i Norden: demokrati, rättssäkerhet och effektivitet under europeisk påverkan
language
English
LU publication?
yes
additional info
Reprinted from European Public Law 26, no. 4 (2020): 987–1010, with permission of Kluwer Law International.
id
5ad71080-1f08-4447-8e57-99d96228872d
date added to LUP
2021-01-08 07:55:16
date last changed
2021-01-11 08:08:42
@article{5ad71080-1f08-4447-8e57-99d96228872d,
  abstract     = {The article examines the power of administrative bodies to assess the constitutionality of legislation (‘administrative constitutional review’), taking examples from Swedish public law. The Swedish constitution explicitly requires all public bodies to engage in administrative constitutional review when necessary. In this way, Swedish administrative authorities have the right and duty to act as guardians of the rule of law. This competence relates to the historical development of Swedish public law, which deviates from most other European constitutional systems by organizing all state administrative authorities as separate public organs detached from the Government and the ministries. The Swedish constitutional obligation is parallel to EU law requirements on national administrative organs to set aside national legislation in conflict with directly applicable EU law (‘the Costanzo obligation’). Against the background of practical examples in Swedish law, the article identifies theoretical and practical challenges for administrative bodies to engage in constitutional review. These include the risk of disturbing constitutional structures by putting lower administrative authorities on par with the parliament. The possible problems of lack of legal expertise and the problem of independence in practice are also discussed. At the same time, the concept of administrative constitutional review has a potential to protect the constitutional system, including the fundamental rights of individuals.},
  author       = {Wenander, Henrik},
  issn         = {1354-3725},
  language     = {eng},
  pages        = {987--1010},
  publisher    = {Kluwer Law International},
  series       = {European Public Law},
  title        = {Administrative Constitutional Review in Sweden: Between Subordination and Independence},
  volume       = {26},
  year         = {2020},
}