Research project Applicable law in the administrative process in the event of changed legislation - which law applies
This postdoctoral project, funded by the Ragnar Söderberg Foundation, examines which law should be applied when legislation is changed during an ongoing administrative process.
It is not unusual for administrative law legislation to change, which is due to the fact that it is largely affected of political decisions. The frequency of amendments to administrative law is therefore high. Often there are no transitional provisions and at present there is only some guidance in case law for to assess which law is to be applied.
The project analyzes possible ways forward to the ambiguity surrounding the question of applicable law must be resolved. Among other things, it examines how Finland has resolved the issue of applicable law to find possible ways to what best suits the requirements of predictability and equal treatment as the proceedings before the administrative courts must meet.
Project description
The project deals with the important administrative procedural issue - applicable law in the event of changed legislation during the ongoing process, which law applies? It is a reality that the administrative courts may be faced with the question of applicable law. The reason is that substantive administrative law is largely characterized by political decisions and the frequency of changes in administrative law is therefore to some extent high. It is not uncommon for transitional provisions to be missing. There is no clear guidance on the basis of which criteria the assessment of the choice of applicable law should be made. Admittedly, the Supreme Administrative Court has established a general starting point for applicable law, which means that the law that applies at the time of review and not when the appealed decision was made. At the same time, the court has declared that there are several exceptions.
An important question is thus which aspects are to be taken into account when assessing applicable law. How should e.g. the balance is made between individual and public interests and if the administrative goal concerns children - how do the principles of applicable law relate to the principle of the best interests of the child? As the legal situation now looks, there is a clear risk that equal cases will not be treated equally. Discretionary assessments or different assessments may be made by the administrative courts which create problems of predictability for the parties. The parties thus find it difficult to know how to safeguard their interests, e.g. on the basis of which law the argument should be made.
It is of crucial importance for the administrative courts to know which law is to be applied in an administrative case in the event of a change in legislation if transitional provisions are lacking. Not least so that the handling in such a situation can meet the requirements of predictability and equal treatment. It is also important for these courts to be able to live up to the high demands placed on the administrative tasks of the administrative courts. With regard to the scope of the different types of cases that the administrative court has to deal with, from a legal security point of view, it is important for individuals and potential representatives to know how the process at the administrative court is carried out in order to be able to safeguard their interests.
The overall purpose of the project is to analyze possible ways forward that best meet the requirements of predictability and equal treatment in order to resolve the ambiguity surrounding the issue as applicable law. To find solutions, the idea is to look beyond Sweden's borders and see how Finland has resolved the issue of applicable law and examine whether the solutions could fit in the Swedish administrative procedural context, ie. in relation to the administrative procedural characteristics. An analysis of how the ambiguity surrounding the question of applicability can be resolved will add important knowledge that is relevant to the further development of the management process.
Project members
Project managers
Michaela Ribbing
Universitetslektor
