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Portrait of Henrik Wenander. Photo.

Henrik Wenander

Dean

Portrait of Henrik Wenander. Photo.

Administrative Constitutional Review in Sweden: Between Subordination and Independence

Author

  • Henrik Wenander

Summary, in English

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.

Department/s

  • Department of Law
  • Public Law

Publishing year

2020

Language

English

Pages

987-1010

Publication/Series

European Public Law

Volume

26

Document type

Journal article

Publisher

Kluwer Law International

Topic

  • Law

Keywords

  • EU Law
  • Administrative Law
  • Constitutional Law

Status

Published

Project

  • Den offentliga förvaltningens konstitutionella roll i Norden: demokrati, rättssäkerhet och effektivitet under europeisk påverkan

Research group

  • Public Law

ISBN/ISSN/Other

  • ISSN: 1354-3725