Research project Administrative law aspects of the rule of law
Research projects addressing Good administration, openness and data protection as fundamental rights and The principle of legality in the Europeanized part of Swedish administrative law.
The Swedish accession to the EU and the incorporation of the European Convention of Human Rights have led to fundamental changes in the Swedish legal system, not least in both public law, Constitutional law and Administrative law. The European understanding of rule of law, with requirements for a regulated and thus limited exercise of public power and protection of individual fundamental rights subject to judicial review, has affected the relationship between Swedish state and individuals in several ways. Constitutional rules for the exercise of public power and protection of fundamental rights are thus given greater importance in daily legal life, the law is constitutionalized.
Within the current project, two aspects of the ongoing development will be studied in more detail:
- Good administration, openness and data protection as fundamental rights.
- The principle of legality in the Europeanized part of Swedish administrative law.
The first sub-project asks the question of how Swedish law is affected by the classification of an legal rule as a constitutional in European law. The project focuses on the three legal concepts that are central to the everyday application of administrative law: good administration, openness and data protection. In Sweden the principle of openness has been classified as a constitutional rulefor more than 250 years. In European law on the other hand, the principle of openness has long been rather weak, even though it has been strengthened over the past 20 years. However, data protection and the connected right to privacy have - unlike in Swedish law - a strong position within both the Council of Europe and the EU. The principle of good administration is dealt with in different ways in the three legal systems.
The second sub-project follows on from the first and addresses the legality principle and its requirements for legal certainty and predictability in the application of administrative law matters within the EU Composite Administration. The composite administration consists of EU authorities and national authorities that cooperate in the handling and decision-making of cases within the scope of EU law. The research question in this part is which court ultimately has to decide how a procedural rule applied within the composite administration is to be interpreted and applied, the European Court of Justice or the Supreme Administrative Court.
The project has obtained ethical approval by the Ethics Review Authority, decision May 25, 2021, Dnr 2021-02239.
Project description
The overall question for the project is formulated as follows:
What does the ongoing constitutionalization of Swedish law mean for general administrative law?
The project is based on previous research that has shown that Swedish Public law, Constitutional law as well as Administrative law, has undergone a constitutionalization process. The focus of this project is the consequences for general administrative law, ie the basic administrative procedural rules applicable to all authorities in investigating matters, decision-making, conditions for re-assessment, etc. In the preparatory work for the 2017 Administrative Procedure Law Act, a relatively in-depth analysis of the effects of Europeanisation on general administrative law has been carried out, and the new act contains several innovations that have taken their inspiration from EU law.
The first sub-project
In the first sub-project – Good administration, publicity and data protection as fundamental rights – the question is asked what implications the EU law classifies administrative procedural rules, rules on openness and data protection as fundamental rights has had for the application of general administrative law in Sweden. The Swedish principle of openness is closely linked to the design of the Swedish administrative model, as well as to access to information needed to build the Swedish welfare state. Correspondingly, the Swedish authorities' independent position has influenced the design of good administration and the relationship between the individual and the authority. What room for maneuver does the Swedish legal system have to uphold a different priority between competing rights than European law does?
Includes two elements
The sub-project includes two elements. The first is conducted within the framework of the project Constitutional Condition of the Welfare State, where I together with two colleagues from Sweden collaborate with three colleagues from Seoul, South Korea, in a comparative project where the constitutional basis for the welfare state in each country is examined. The project is led by Professor Mauro Zamboni, Stockholm University and Jongcheol Kim, Yonsei University School of Law South Korea. The project is funded by STINT in terms of travel for the Swedish participants.
The second is to examine how personal data contained in public documents are handled within the framework of the EU's composite administration. The co-operation between EU and Member States' executive agencies consists to a large extent of information sharing. EU data protection law is fully applicable in both the EU and the Member States, while the principle of openness is regulated separately in the respective legal systems (EU and the 27 Member States). Within the composite administration, where European and national administrative bodies co-operate in the handling of individual cases, conflicts constantly arise when the same document is to be handled in different ways. The project investigates how well the Swedish principle of openness stands in two selected areas of law: EU data protection law, where the Privacy Protection Authority is the competent authority in Sweden, ethical review, which functions as a legal safeguard within EU Data Protection Law but which is handled within a Swedish authority structure (the Ethical Review Authority and the Ethics Review Appeals Board) and EU financial market law, where Finansinspektionen is the competent authority in Sweden.
The second sub-project
The second sub-project – The principle of legality in the Europeanized part of Swedish administrative law – examines which administrative procedural rules, national or European, are to be applied in cases where authorities in different jurisdictions cooperate. The project follows firstly and addresses the question of who defines the principle of legality and its requirements for legal certainty and predictability in the application of administrative law matters within the EU Composite Administration. The research question in this part is who defines general administrative law, more precisely which court has to ultimately decide how a procedural rule within the composite administration is to be interpreted and applied, the European Court of Justice or the Supreme Administrative Court. According to the traditional division of power, the interpretation of the content of EU law falls within the competence of the European Court of Justice, while national courts ultimately have to decide how a case is to be handled (the doctrine of national procedural autonomy). However, in cases involving authorities from several jurisdictions, this division is difficult to maintain and the basic division may need to be redefined.
Consists of three elements
The sub-project consists of three elements, where the first two are conducted within the framework of two European projects, “’Common frame of reference’ of the pan-European general principles of good administration of the Council of Europe” and “The Principle of Legality and the Intensity of its Binding Force in European Administrative Laws”.
The former is a follow-up to a project led by Professor Ulrich Stelkens, German University of Administrative Sciences Speyer, Germany, which was presented in the autumn of 2020, through the publication of the anthology The Impact of Pan-European General Principles of Administrative Law on the Administrative Law of its Member States, published in Oxford University Press. In the forthcoming project, a number of administrative law concepts and principles will be studied, based on how the Council of Europe's sources affect their interpretation and application. The second part is entitled is conducted within the framework of a partially overlapping research group and is led by Ulrich Stelkens and Professor Giacinto della Cananea, Bocconi University, Italy. The core of the project consists of an analysis of different traditions to interpret the principle of legality and the scope for discretionary assessment in different countries. The third part consists of a study on the application of administrative procedural rules in the handling of composite cases within the EU administration. This study is conducted as an individual research project.
The project is limited to the Europeanized parts of Swedish law, ie parts where legal sources from the Council of Europe and the EU have had a major impact. Other international sources have also contributed to the legal developments studied, such as the Aarhus Convention, the Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, all of which have been adopted by the UN. These and similar conventions will only be taken into account to the extent that influence when Swedish law via European law.
Within the framework of the project as a whole, shorter articles on issues related to the overall research question will also be published, as well as case annotations.
Project members
Project managers
Jane Reichel
Professor, Dekanus
Publications
First sub-project: Good administration, publicity and data protection as fundamental rights
Jane Reichel, Judgment of the Court of Justice of the European Union C 439/19 B EU:C:2021:1054 (Grand Chamber): "The scope for processing personal data relating to infringements of the law in public documents held accessible to the public", FT 2022 (forthcoming 2022)
First sub-project: Good administration, publicity and data protection as fundamental rights
Sophia Pagil, Jane Reichel and Santa Slokenberga, "Ethics as a Legal Tool? Ethical review of research as a legal safeguard for individuals", Nordisk socialrättslig tidskrift (forthcoming 2022)
More about this project
Presentations at seminars, conferences, etc.
- Presentation at the Higher Seminar for European Law, Faculty of Law, Uppsala University, February 2, 2022.
- Presentation together with Sophia Pagil, Santa Slokenberga and Manuel Guerro, Centre for Research ethics & Bioethics, Uppsala university, September 13, 2021.
- Presentation together with Johanna Chamberlain at the Digital Forum on Privacy and Governmental Transparency organised by Professor Russell L. Weaver, University of Louisville, USA and Professor András Koltay, the Pazmany Peter Catholic Faculty of Law, Budapest, Hungary, in June 7-8, 2021.