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Access to justice in environmental matters - Sweden


  1. Constitutional Foundations
  2. Judiciary
  3. #II
  4. Access to Information Cases
  5. Access to Justice in Public Participation
  6. Access to Justice against Acts or Omissions
  7. Other Means of Access to Justice
  8. Legal Standing
  9. Legal Representation
  10. Evidence
  11. Injunctive Relief
  12. Costs
  13. Financial Assistance Mechanisms
  14. Timeliness
  15. Other Issues
  16. Being a Foreigner
  17. Transboundary Cases

I.Constitutional Foundations

There is no right to environment as such in the Swedish constitution. The Instrument of Government (RF) [1] does prescribe that promoting sustainable development is a fundamental task and objective of the public institutions (RF 1:2). Protection of human health and the environment moreover count as such legitimate interests that may provide grounds for limits or exceptions to other rights, mainly property rights (see RF 2:15). Consequently, there are grounds for environmental regulation through permit conditions and public notices and so on, without having to compensate the operator. Furthermore, public access to the natural environment enjoys explicit constitutional protection. The constitutional provisions could be invoked directly in administrative or judicial procedure, but they will normally only serve as support for interpreting lower level legislation. Constitutional provisions on environmental interests are mainly perceived as addressed to policy makers and legislators.

The Swedish constitution does not provide explicit provisions on access to justice other than for cases of imprisonment or other kinds of depravation of freedom. In a recent review the role and procedure of the courts have been somewhat clarified and the law on fair and open trial procedures codified. Explicit reference to a wider access to justice was however not included. This lack of explicit constitutional provisions should not be over-interpreted. Access to justice is well protected in Swedish law today. The right to trial is safeguarded in procedural law; for example in the Administrative Procedure Code (FL)[2] 22–22a §§, and 3 § (with reference to the ECHR). There is also special regulation of judicial review of governmental decisions in the Act on Judicial Review of Certain Governmental Decisions.[3] Moreover, the European Convention on Human Rights (ECHR) has a special legal status, which gives it a sort of constitutional character. The Convention is incorporated in Swedish legislation, and the constitution prescribes that no legislation may be passed in conflict with the ECHR (RF 2:19). This is interpreted to also include the case law of the European Court for Human Rights. In Swedish case law the ECHR has gained a uniquely authoritative role and it is to som e extent argued and applied as constitutional law. Through this incorporation of the ECHR, European law on the right to a fair trial, including the right to a public hearing before an independent and impartial tribunal within reasonable time, etc., becomes directly applicable as Swedish law and enjoys a more or less constitutional status in administrative and judicial proceedings.

Parties to an administrative or judicial procedure cannot rely directly on international agreements, but need to find Swedish legislation implementing the international agreements. International law may however carry a lot of authority in the interpretation of Swedish law, especially through EU-law. Consequently, the Aarhus Convention is formally not directly applicable for Swedish administrative bodies or courts. It may nevertheless in practice become quite important in the interpretation of Swedish law, especially in recent years. In 2009, the EU-court found in preliminary ruling (Case C-263/08 DLV v. Sweden) that the Swedish rules on standing for NGOs were not in accordance with EU-law intended to implement the Aarhus Convention. The Aarhus Convention has therefore become indirectly applicable through its implementation in EU-law. Its authority is reflected in recent Swedish case law reinterpreting access to justice in environmental matters (MÖD 2011:46, MÖD 2012:47 and MÖD 2012:48). In summary, the Convention is not applied directly and independently, but rather indirectly through Swedish law and EU-law.

II.Judiciary

General Introduction to the Swedish Court System

Sweden has a system of ordinary courts for civil and criminal cases, and a separate system of general administrative courts for the appeal of administrative decisions. The ordinary courts consist of:

  • 48 district courts
  • 6 courts of appeal, and
  • the Supreme Court.

The general administrative courts consist of:

  • 12 county administrative courts,
  • 4 administrative courts of appeal, and
  • the Supreme Administrative Court.

The lower level courts will seat both lay judges and legally trained judges, in different combinations for different categories of cases.[4] The ordinary courts deal with claims between individuals, including actions/omissions by the authorities when they act as a private body, for example when purchasing land, setting up contracts or entering agreements with private entities. Individuals’ claims for damages from public authorities based on administrative misconduct are made to the ordinary courts. In general, administrative decisions/omissions cannot be brought to the ordinary courts. Forum shopping is normally not possible.

Administrative procedure is regulated separately, in the general Administrative Court Procedure Act (FPL),[5] and more specifically in different areas of public law. The administrative appeals procedure in Sweden is as a rule reformatory and one of full appeal. This means that the administrative courts decide cases on the merits as well as legality, and that they can replace the appealed decision with a new one. The court thus takes on the role of the authority that made the appealed decision, and acts as a public authority making an administrative decision. The ultimate responsibility for the investigation of the case therefore rests with the court according to the “ex officio principle”. The idea is that the original decision-making authority should ensure sufficient decision-making material, but if needed the court has to take on this responsibility. They may then order the parties to provide materials, or they can acquire it themselves.

It should also be noted that governmental decisions can be challenged by seeking judicial review in the Supreme Administrative Court pursuant to Act 2006:304. This procedure furnishes a legality control in accordance with the ECHR. The legality of some municipal decisions – typically those which cannot be appealed through an ordinary administrative appeal – can be challenged in administrative courts by any of the municipality’s inhabitants according to the Local Government Act (KL)[6]. These procedures are cassatory, meaning that the appealed decision can, if found illegal, only be revoked and not replaced with a new decision. Notably, however, such judicial review procedure is limited to these special procedures. Normally, the administrative court procedure will be reformatory and concern trial on the merits of the case.

There is no constitutional court in Sweden. Constitutional review of Swedish legislation can however be made in each individual case, and by every decision-making court or administrative authority (RF 11:14, and 12:10)[7]. The result of finding a legal act contrary to the constitution (or to higher level legislation) is that the law should not be applied in the individual case. However, only the legislator can revoke the legislation.

Land and Environment Courts

Since the introduction of the Environmental Code (MB)[8] in 1999, Sweden has had a special system of environmental courts, today called land and environment courts. There are, five land and environment courts, and a Land and Environment Court of Appeal.[9] These courts are all divisions within the ordinary court system; five local courts and the Court of Appeal in Stockholm.[10] This means that administrative decisions in environmental law are tried within the ordinary courts. The land and environment courts will try appeals on administrative decisions by local and regional environmental authorities, and they will act as permit authorities. They will also handle civil disputes on land and environment cases, including claims for compensation and damages. Criminal cases are however not within the jurisdiction of the land and environment courts.

The land and environment courts decide on issues that demand scientific and technological assessments, and balancing of interests that require expertise beyond the legal domain. Therefore, apart from lawyers, experts in environmental sciences sit as judges in the environmental courts. When deciding major cases, as a main rule, the land and environmental courts consist of one professional judge, one environmental technician (technical judge) and two expert members (lay judges). Industry and national public authorities nominate the last two. Most cases are, however, decided by one professional judge together with one technical judge. The Land and Environment Court of Appeal is comprised of three professional judges and one technical judge. In principle all members of the courts have an equal vote. If in a case the outcome of the votes are equal, as general rule the chairman has casting vote.

The hierarchy in the route for appeals in environmental cases is:

  • Municipal Environmental Board
  • County Administrative Board
  • Land and Environment Court
  • Land and Environment Court of Appeal
  • Supreme Court.

Most appeals of environmental decisions follow the described route, although the starting-point and terminus differ. Cases starting in a land and environment court can ultimately be brought to the Supreme Court. Cases starting in an authority can in most cases not be appealed beyond the Land and Environment Court of Appeal. Administrative decisions pursuant to the Environmental Code and the Planning and Building Act (PBL)[11] are taken by the local or regional authorities, as well as by national public authorities, such as the Environmental Protection Agency, Chemicals Agency or the National Board of Health and Welfare. Permits are granted by local or regional authorities and – concerning water operations and larger industrial installations – by the land and environmental courts.

The land and environment courts’ jurisdiction covers all kinds of decisions made pursuant to the Environmental Code and the Planning and Building Act. They also try some private actions against environmentally hazardous activities and land cases relating to inter alia land parcelling or expropriation. Consequently, the court procedures have different character depending on the type of case, and rely on a complex system of procedural rules. The Environmental Code and the Planning and Building Act prescribe special procedural regulation for court procedures in environmental matters. These special procedural regulations will however to a great extent rely on general procedural law. Procedural law basis is found in the Code on Judicial Procedure (RB)[12]. The land and environment courts are also to apply a special administrative procedure act for ordinary courts, the Act on Administrative Court Cases (ÄL), [13] which in substance is similar to the Administrative Court Procedure Act. All these general rules are subsidiary to special procedural regulation. The Act on Land and Environment Courts (LOM) fundamentally prescribes the procedural regulations to be applied in different kinds of cases.[14]

Environmental court procedure will involve characteristics from both private and public law procedures. Most notably, however, the reformatory procedural character, the full appeal, and the extensive procedural responsibilities of the administrative courts will reflect in all environmental procedures, save for criminal law cases – which are handled outside the environmental court system.

Judicial Action trough Own Action

In the above-described ex officio procedure of administrative law cases the courts will play an active role. In the most common types of cases on environmental matters, the courts may order parties to produce further investigation and evidence, and they may also make their own investigations. The court may deliver a new decision instead of the appealed one, repealing or changing the old decision, or remitting it to the administrative decision-maker. As a main rule, they must not deliver a decision beyond the claims of the parties, but exceptions can be made to the benefit of the individual, if this is not detrimental to involved private interests. In the environmental procedure, the court may order an applicant to supplement their application documentation. They may also take care of this themselves, at the expense of the applicant (MB 22:1). The courts have similar competence in permit review cases. The court may also involve experts to provide their opinion in the case (MB 22:12). The court will decide on the focus and range of the pre-trial investigations and negotiations (MB 22:11). They will also decide on the oral hearing and may order parties to attend (MB 22:16 and forward).

In civil procedure, the court’s competence for own action is more limited. As mentioned earlier, criminal cases are handled within the ordinary court system.

III. Access to Information Cases

Introduction: A General Principle of Public Access

The right of access to environmental information is guaranteed under the general principle of public access,[15] prescribed in Chapter 2 of the Freedom of the Press Act (TF).[16] This constitutional law principle is by tradition very strong in Swedish law, and secrecy of public documents is limited. Among other things, it provides all individuals – whether a citizen of Sweden or of another country – with a right to read official documents (in paper or electronic form) held by public authorities, including the courts (TF 2:1 and 14:5). For a small fee, they can also get copies of the documents (TF 2:13). The request for access can be made anonymously. [17] Official documents are such documents that:

  • are held by the authority (TF 2:3),
  • have been drawn up OR received by the public authority (TF 2:6–7), and
  • that are not deemed secret under TF 2:2 in the specific case.

Most documented environmental information held by public authorities will be public and accessible. Moreover, certain private entities that fulfil public functions within water management, fishery and wildlife, etc. are also under similar duties to provide access to environmental information, according to Code 2005:181.[18] The procedure for management of public documents and the grounds for secrecy are specified in the Public Access to Information and Secrecy Act (OSL). [19] Some environmental information is also accessible and free to everyone online, centrally data on emissions of air pollutants (gathered and reported in accordance with the Air Pollution Convention (CLRTAP) and EU’s NEC Directive (2001/81/EC),[20] and indicators monitored in pursuance of the system of national environmental objectives.[21]

Seeking Remedies for Refusal of Access to Environmental Information

Requests for public access are handled by the authority holding the relevant documentation. Such a request must be handled promptly. If an authority has refused a request or granted access but with reservations as to how the information may be used, the applicant is generally entitled to appeal against the decision (TF 2:15 and OSL 6:7). Appeals are generally made to an administrative court of appeal. A decision of such a court may be appealed to the Supreme Administrative Court. The Supreme Administrative Court must then first grant a leave of appeal, which is mainly done in cases of precedential interest. If the request is made to a land and environment court, an appeal is handled by the court of appeal and then by the Supreme Court (OSL 6:8). The appeal must be made within three weeks from the day when the appellant was notified of the decision (FL[22] 23 § and FPL[23] 6a §) or, if a decision from the land and environment court, within three weeks from the date of the decision (OSL 6:10 and RB 52:1). The appeal must be formulated in writing, stating the appealed decision and the wanted change in the decision (FL 23 §, RB 52:1 and 3). The appeal is delivered to the decision-making authority, which then sends the appeal to the court, after having checked that it has arrived in time, together with the all the other case-documents (FL 23–25 §, see also FPL 6a § and RB 52:2 and 4). Before sending over the appeal the authority has the opportunity to review their decision. If the decision is manifestly wrong, they have a duty to correct it, provided that this can be done rapidly and simply without detriment to a private party (FL 27 §).

Rules on how the decision should be made protect the individuals’ possibilities to seek remedies for refusal of access to environmental information. A public authority’s decision to refuse access to public documents must be communicated with the party that made the request. The decision should be written. The decision must state the reasons for refusal and inform about the applicant’s access to appeal, and when and how such appeal should be made (FL 20-21 §§)[24]. A request for public access is often handled by a civil servant at the authority. In these cases, the individual can request the assessment and a written decision of the authority, which they need to be able to appeal denied access. The civil servant must inform the individual of these matters (OSL 3 §) [25].

The situation may be somewhat different if the authority doesn’t follow the above described due procedure. For example, the individual cannot appeal the decision if there is no written decision, or if he or she has not been informed of the decision and available remedies. Inadequate or improper administrative procedure may be brought to the attention of the Parliamentary Ombudsman,[26] who may criticise the authority, and also bring charges for misuse of office according to Section 20:1 of the Penal Code (BrB), [27]. Generally, the Ombudsman’s decision will stay at criticism. Such criticism carries much authority, stating an administrative practise that is generally followed. However, it does not provide any remedy for the individual. The Ombudsman cannot make the authority to provide access to the information in the relevant individual case.

Under Code 2005:181, similar rules are, as above noted, prescribed regarding access to environmental information for the some private entities fulfilling public tasks. Under these provisions a refusal decision should be in writing, at least if the applicant so requests. It must contain reasons for the refusal and information on how and when to appeal. The same time limit applies in these cases and appeal is also made to an administrative court of appeal at this time.

Following the described appeals procedure, the court that handles the appeal will be provided with all the case-documentation. This case documentation will normally include the information to which access is disputed. The court will then decide on the access to the information. As the administrative court procedure is of reformatory character, the court steps into the decision-making role, and decides whether or not to give the appellant access to the relevant information. However, the courts do not have powers to order an authority in the sense that they can punish the authority’s continued non-compliance.

IV. Access to Justice in Public Participation

Administrative procedure in environmental law cases

Municipalities and special environmental public authorities act as administrative decision-makers under the Environmental Code. County administrative boards handle nature conservancy matters, water law cases, and permitting, supervision and control of environmentally hazardous activities. Much of their decision-making competence is, however, delegated to municipal authorities, which stand for most of the supervision. Some national authorities are also involved in administrative decision-making in relation to environmental matters, such as the Environmental Protection Agency, and the Chemicals Agency. There are also special branch authorities connected mainly to areas of infrastructure land use, such as the Forest Agency, and the National Transport Administration. Municipalities and governmental authorities are often involved in appeals procedures, to protect relevant legal interests.

The municipalities and county administrative boards supervise and enforce the Environmental Code, mainly through inspections and review of environmental reports and notifications of different kinds, and delivering enforcement orders and administrative sanctions, ex officio or in response to complaints. They will also decide on many kinds of licenses and exceptions.[28] The local and regional authorities handle and decide administrative cases quite independently from the Government and central agencies. As a general rule, the ministry or a superior authority cannot intervene in an individual administrative procedure. They may only intervene in the administrative decision-making procedure at the local level in exceptional situations specified in legislation. In particular cases the authority may refer the case to the Government (MB 2:9 or cases regarding Natura 2000 areas). The Government may also decide on matters tied to strategic planning and management of resources of national interest. Such decisions include authorisation, within the permit procedure, of large infrastructural projects, or nuclear installations, etc., specified in the legislation. The Government also can reserve the right to make such a decision (MB Chapter 17). The described governmental decisions can be challenged by judicial review at the Supreme Administrative Court. Moreover, in decisions on the local level on planning or building permits, the County Administrative Board or the Government may intervene to protect certain national interests.

An administrative procedure in environmental law matters can look very different in different kinds of cases. In general, however, it will be initiated either in response to a complaint or an application (for example application for dispensation or a permit, as prescribed by law), or on the authority’s own initiative. The authority must initiate, handle, and finish such a procedure in response to the private initiative, or when their public tasks under law call for action. This means that they must start a case, move the case along – with all the due procedural measures involved – and finish it through an administrative decision, even when they decide not to take further action. Due administrative procedure means, among other things, that the authority has to communicate the developments of the case with concerned parties (FL 17 §), to provide a reasoned decision (FL 20§), and access to the materials (FL 16 §), etc.[29]

Appeal and administrative review

A final administrative decision may be appealed. A municipal decision is generally appealed to the regional county administrative board, and further to the land and environmental courts. The decision of a higher authority is, however, generally appealed to the land and environmental courts directly. The above-described governmental decisions may be subject to a specific judicial review procedure before the Supreme Administrative Court (Act 2006:304).

An administrative decision may also be reviewed by the original decision-making authority, independently of the appeal. The administrative authority has a legal duty (FL 27 §) to change a clearly incorrect decision, at least if such correction is simple and quick, but the decision cannot be to the detriment of other parties. This administrative review procedure is therefore of limited use in cases involving several parties of conflicting interests. Administrative review can be made in response to an application or on the authority’s own initiative. Administrative appeal is submitted to the decision-making authority for forwarding to the appellate body. This system provides opportunity for review and hence correcting an incorrect decision without having to go to court. In environmental cases there is no obligation to apply for such review before appealing an administrative decision.

The administrative appeals procedure in Sweden is as a rule reformatory and one of full appeal. This means that the administrative courts decide cases on the merits as well as legality of the appealed administrative decision, and that they can replace the appealed decision with a new one. Within the limits of the claim, the court takes on the role of the authority that made the appealed decision, and thus in principle acts as a public authority making an administrative decision. The ultimate responsibility for the investigation of the case rests with the court according to the “ex officio principle”. The point of departure is that the original decision-making authority should have ensured sufficient decision-making material, but if needed the court has to take on this responsibility. They should therefore look beyond the appealed decision and scrutinise the decision-making materials. The court may then order the parties to provide materials, or they can acquire it themselves.

Planning law decisions

The municipalities decide on plans and permits under the Planning and Building Act (PBL).[30] The municipalities also can decide in cases when they act or react as a supervisory body relating to violations of the act. Building permits and decision relating to violations of the act are subject to administrative appeal, first to a county administrative board, and further to the land and environmental court (PBL 13:3 and 13:6), according to the procedure described above. The courts decide the case on the merits and replace it with a new decision. The rules of evidence build on each party showing grounds for their claims, and the court weighs the evidence and decides the case based on the claims and the facts and materials of the case. However, the “ex officio principle” makes the procedure easier for the individual: as the decision-making authority and the court have fundamental responsibilities for ensuring a correct and appropriate decision under law, and therefore a basic responsibility for the evidence. The scope of the appeal regarding detailed plans that prescribe conditions for building and other land use (“detaljplan” or “områdesbestämmelser”, see PBL Chapter 4) is more narrow, and more similar to a judicial review. In principle the process here is cassatory (PBL 13:17).

Appeal can be made by concerned parties (FL 22 §). Environmental NGOs (specified in MB 16:13)[31] have standing in appeal cases concerning detailed plans entailing revoking shore protection, or concerning projects and plans requiring Environmental Impact Assessment (EIA) (PBL 4:34, implementing Directive 2001/42/EC). Appeal concerning detailed plans can only be made by persons that have submitted their views in the decision-making procedure, according to PBL Chapter 5, and their views have not been met (PBL 13:11).

Other kinds of land use plans, which are more strategic and political and do not provide binding rules or building rights, cannot be appealed through an ordinary administrative appeal. The legality of such planning decisions may be challenged in administrative courts by any of the municipality’s inhabitants according to PBL 13:1 and the Local Government Act (KL) Chapter 10[32]. These procedures are cassatory – they can, if found illegal, only be revoked and not replaced with a new decision.

EIA decisions

In Swedish Law, the EIA procedure is carried out by the operator in a procedure supervised and controlled by the regional county administrative board. Rules on the EIA-procedure are found in MB Chapter 6, and the Ordinance on EIA[33]. There is no possibility for specific court review for screening and scoping decisions. The resulting EIA documentation, the environmental impact statement, is attached to the permit application (MB 6:1 and 22:1), and submitted to the permit authority – a county administrative board or a land and environmental court. The EIA is available through public access, and anyone may submit comments and opinions to the authority. According to the “ex officio principle”, the permit authority can and should take such relevant statements into account in the following procedure. A permit application, including the EIA, and the permit authority’s decision must generally be announced in local newspapers, etc., thus informing the public of such access.

In the course of the permit procedure, the authority will review the final EIA, both on its procedural and substantive legality according to MB Chapter 6. A proper EIA documentation is a precondition for the permit procedure, and an insufficient or lacking EIA means that the permit application is refused or the EIA sent back for adjusting or complementing work. The permit authority’s EIA decision can only be appealed together with the connected permit decision (MB 6:9). In these permit procedures, appeal can be made by concerned parties, including concerned public authorities (MB 16:12), and environmental NGOs fulfilling the requirements in MB 16:13. It is not necessary to have participated in the consultations during the EIA process.

There is no need for specific rules on injunctive relief in the Swedish EIA procedure, as the permit procedure is preconditioned by an approved EIA procedure and resulting statement. Moreover, the permit decision is generally suspended pending an appeal. The operation will therefore not be able to start before the EIA is reviewed.

IPPC decisions

A final IPPC decision is, under Swedish environmental law, a permit decision, including permit conditions. This permit decision is taken by a partly independent body within the country administrative board (B-installations according to the appendix of the Ordinance on Environmentally Hazardous Activities, etc.,[34] or a land and environmental court as first instance if it concerns the largest and most hazardous installations (A-installations). Their decisions can be appealed in the land and environmental court system, as described above. As described above concerning EIA decisions, appeal can be made by concerned parties, the municipality, certain governmental authorities and environmental NGOs fulfilling requirements prescribed in MB 16:13. It is not necessary to have participated earlier in the IPPC-procedure.

The courts review the case on both procedural and substantive legality, and may make a new decision on the permit and the conditions thereof. The rules of evidence build on each party showing grounds for their claims, supplemented by the ex officio principle of the public authority having to ensure sufficient grounds for a proper and legal decision. In the permit procedure, the applicant has to produce a lot of materials, including an EIA, to support his claims. It is also the court’s duty to ensure that this information provides sufficient decision-making materials. An appellant opposing a permit decision must provide evidence to support their claims, but as an effect of the responsibilities of the applicant and the authorities, the standard of proof should be lower.

Suspending the decision pending appeal is the basic rule for permit decisions. A permit obligation entails a prohibition to start, or to continue operating the relevant installation without a valid permit (see MB 9:6)[35]. The operator will have to wait for the full appeals procedure to reach a final and legally valid permit decision. The operator can apply to the permits body to request that the permit can be directly executable (MB 19:5, 22:28). If the permit has been challenged, the operator can apply for execution of the permit in the court within the appeal process. The operator may also apply for a separate decision on the permissibility and permission to start building operations as preparation for the operation, before all matters are judged and determined on conditions for the operation (MB 19:5 and 22:26).

V. Access to Justice against Acts or Omissions

Claims may be submitted to court directly against private individuals or legal entities through private law action, also in environmental matters (see on action on own motion under II). Such action can concern claims for damages, either under general tort law or the special rules for civil liability in environmental cases (MB Chapter 32)[36]. Claims for court injunctions concerning so-called environmentally hazardous activities [37] may also be brought directly to court (MB 32:12). Such claims may involve asking the court to prohibit continued operation, or the taking of necessary precautionary measures.

Claims against state bodies are normally not made directly to the courts, neither in environmental matters or generally. Acts and omissions of state bodies are instead challenged within the appeals procedure. Aside from this most common route of administrative law procedure, claims for civil liability for damages caused by the acts and omissions of a state authority can be brought directly to court. Such cases are, however, rare and often difficult to win success in, as it is generally quite difficult to prove that an injury has been caused by the acts or omissions of the state.

Acts or omissions comprising criminal offences, for example misuse of office (BrB 20:1), or breach of professional confidentiality (BrB 20:3), or environmental offences (MB Chapter 29) can also be brought to court. However, only the public prosecutor can initiate prosecution.

The competent authority in environmental liability matters, as regulated by the EU liability directive, is the relevant supervisory authority – an environmental board of a municipality, or a county administrative board. The county administrative boards generally supervise the most environmentally hazardous installations, which are licensed by the land and environment courts. A request for action by the competent authority in environmental liability matters is initiated through ordinary administrative procedure: A person notifies the matter to the competent authority, and asks for administrative action, in this case on environmental liability. The authority must then make a decision, either on action or on omission (i.e. a decision not to take action). If the authority decides to take action, this will take the form of an order to the liable actor to take reparative measures. The decision can be appealed by parties concerned or environmental NGOs in the ordinary procedural order: municipality – country administrative board – land and environment court – Land and Environment Court of Appeal. The court review is again reformatory and of full appeal. The appellate body will try the case on legality and on the merits, and may replace the appealed decision with a new one.

VI. Other Means of Access to Justice

Aside from the earlier described civil law action directly to court, remedies in environmental matters can be sought through criminal prosecution and a complaint to an ombudsman. However, the absolutely most common means of access to justice in environmental matters is found in the administrative procedure. A member of the public can start a procedure by complaining to a supervisory authority about an environmental matter and ask for administrative action in his or her interest. Based on case law and administrative practice, the authority must then make a decision, either to act or not. There are no formal limitations on what the appellant may claim in this procedure. The appellate authority or court can make any kind of decision, including annulling, altering or remitting the appealed decision. Complaints on the state bodies’ actions, such as poor administrative procedure, are handled by the court together with an appeal of an administrative decision concerning the substantive matter of law.

Acts or omissions comprising criminal offences, for example misuse of office (BrB 20:1), or breach of professional confidentiality (BrB 20:3), or environmental offences (MB Chapter 29)[38] can be reported to police. Private prosecution is however not available in environmental matters. Prosecution is initiated by the Prosecution Authority[39].

There is no specifically environmental ombudsman in Sweden. The Parliamentary Ombudsman (JO)[40] and the Chancellor of Justice (JK)[41] supervise the public administration and the courts – both in response to complaints from the public, and on their own initiative. The JK also handles claims for damages from the state.[42] The Parliamentary Ombudsman, especially, has provided a means for access to justice in some environmental matters, certainly in cases where it is not provided in the administrative procedure or through appeal. The ombudsmen have disciplinary functions, and act through opinions, which are quite authoritative. They have the competence to prosecute civil servants for misuse of office, but such prosecution is very rare. JO cannot intervene in an individual case, and only scrutinize the administrative handling of the case, and can therefore not be regarded as an effective remedy. Both the JO and the JK, however provide important complaint handling mechanisms in the Swedish system.

Aside from prosecution for misuse of office, or the opinions of the ombudsmen, complaints on inappropriate administrative action, inaction or omission is handled in the administrative appeals procedure, as described above. The administrative authority may also review their earlier decisions, based on a complaint of such administrative inappropriateness. In cases where an earlier decision is clearly inaccurate, the authority must review the decision, if this can be done simply and without detriment to any party to the case (FL 27§). As an appeal is submitted to the original decision-making authority for forwarding to the correct appeal body, the authority has an opportunity to review the case.

VII. Legal Standing

Legal Standing

Administrative Procedure

Judicial Procedure

Individuals

Main rule: FL 22§[43]

Concerned parties are those that have a direct concern of private interests, which in environmental cases are interpreted generously. The private interest has to be one that is considered protected by the relevant law.

Main rule: MB 16:12[44]

Concerned parties, generally same as in administrative procedure. Case law includes parties affected by harm or inconvenience, and potential (but not merely “theoretical or insignificant”) risk. [45] The risk assessment involves consideration of the character of the emission, seriousness of the potential harm, likelihood of the harm occurring, geographical distance, etc. The harm must concern interests protected by the relevant regulations.

An individual with standing (private interest) may invoke public interests. [46] Merely public interests do not suffice for standing. Hence, in nature conservancy or shore protection decision-making, individuals will generally not have standing as concerned parties.

NGOs

Original decision-making procedure: No standing

Administrative appeals procedure: Same as for judicial procedure

Main rule: MB 16:13-14

Procedures:

Permit matters, revocation nature conservation,

Shoreline protection cases,

Administrative decision concerning env:l liability (MB Chapter 10)

Organisational prerequisites:

-non-profit organisation

-main purpose nature conservation/outdoor activities

-operated in Sweden minimum 3 years[47]

-100 members or show “support of general public”

Other legal entities

Same as individuals

Same as individuals

Trade unions organising workers of the operation concerned in the procedure is specifically noted as having legal standing.

Ad hoc groups

No standing

No standing

Foreign NGOs

Original decision-making procedure: No standing

Administrative appeals procedure: Same as for judicial procedure

Same as national NGO:s. NB: must have operated in Sweden 3 years

Any other

Original decision-making procedure: Only concerned parties have standing. The process in permits cases is, however, public and in principle any person are allowed to make statements.

Administrative appeals procedure: Same as for judicial procedure

Competent state (Swedish Environmental Protection Agency (SEPA), County Administrative Board, etc) and municipal authorities (MB 16:12, 22:6) concerning the environmental interests they promote. Municipalities also concerning other municipal interests.

In the procedure for appeal of an administrative decision, the decision-making authority functions as contradictory party to the appellant (FPL 7a §).

Ombudsmen or prosecutors do not have standing in environmental procedures, other than in criminal procedure.


For administrative procedures concerning environmental matters, the general rule on standing for the public concerned will generally apply in sectorial legislation. The provision on access to justice for NGOs has been extended to sectorial legislation on planning law (PBL)[48], and laws dealing with infrastructural projects, mining and electric power lines. However, NGOs do not have explicit standing in other sectorial legislation, for example on hunting[49] and forestry[50], which are central for nature protection matters. Standing for NGOs in procedures under the Forestry Act has recently been tried in an administrative court case. The administrative court as first court instance accepted standing for the Swedish Society for Nature Conservation motivated by provisions of the Aarhus Convention. However, the administrative court of appeal did not find reason for such reinterpretation of the rules on standing in administrative procedural law, and therefore revoked the decision of the lower court.[51] The case is currently pending further appeal to the Supreme Administrative Court. A case concerning NGO standing under the Hunting Act is similarly pending trial in the Administrative Court of Appeal of Stockholm.[52]

EIA and IPPC rules for standing are not specifically regulated. These rules on standing are prescribed generally for environmental procedures under the Environmental Code, as described above. However, NGOs do not have standing in all kinds of environmental procedures under the Environmental Code. They will have standing in permit procedures of different kinds, in environmental liability cases under MB Chapter 10, and for some nature protection decisions. Recent developments in case law, however, have displayed extensive interpretation of the rules on standing for NGOs in light of EU-law and the Aarhus convention. Subsequently, NGOs have in some cases been allowed standing in a wider range of administrative decisions, when necessary for the effective implementation of EU-law. [53]

#53There is no actio popularis in Sweden. It must, however, be noted that the administrative law ex officio procedure, which is most common in environmental matters, provides generous public access to the procedure. The administrative decision-maker or the court should take into account all necessary and relevant statements and materials, in order to reach a correct and appropriate decision. This may involve information provided by members of the public. Together with the fundamental access to public documents and court proceedings, the ex officio procedure provides public access – but not standing.

VIII. Legal Representation

Legal counsel (to be represented by a lawyer) is not compulsory in environmental cases before the Swedish courts. In addition, if you do want legal representation, it is not necessary to employ a member by the Bar Association as legal counsel before the court. In principle the choice of representation is without restriction. Bar Association membership is marked by the title “advokat” and will normally indicate professional quality.

Many law firms are able to provide legal advice and representation in environmental matters. Larger law firms will often focus on legal advice and representation for businesses. Environmental lawyers, including information on specialization and contact information can easily be found on the internet or a phone directory, searching the keywords “advokat” and “miljörätt”. Members of the Swedish Bar Association specialized in environmental law can also be found though the Bar Association, most easily through the search engine on their web-site.[54]

The most common and generally easiest way to seek access to justice in environmental matters is through a complaint to an administrative organ, and then an appeal of the decision. It is worth knowing that the administrative law procedure in the administration and the courts is built on the principle, that the decision-making authority or court has a duty to ensure sufficient investigation and other decision-making materials. One reason for this rule is to make it easier for an individual to manage without legal representation and expert consultation. Many appellants of administrative decisions in environmental matters will also manage quite well without legal representation. Regarding the land and environment courts, it should also be noted that the court has its own technical competence.

IX. Evidence

Rules of evidence in administrative court procedure are based on the practice that each party provides evidence to support his claims, and the court balances the evidence. An applicant seeking a beneficial decision, such as a permit, must provide evidence to support such a decision and an administrative body that made a detrimental decision, such as an enforcement order, must show support for such a decision. However, the ex officio principle is quite decisive in administrative procedure, both at the administrative authority and in the court procedure. This means that a decision-making authority must ensure sufficient information and materials – evidence – to make it possible to make a correct and appropriate decision. This may entail ordering more materials to be produced, or making their own investigations. The ex officio principle applies both to administrative authorities and courts, and also in the appellate procedure. This makes it easier for individual parties in terms of evidence requirements.

However, the Environmental Code prescribes special rules relating to provision of evidence in environmental procedures. These rules will supplement general procedural law rules, specifically in administrative procedures. MB 2:1 provides that anyone that pursues an activity or takes a measure, or intends to do so, shall show that the general environmental law rules of consideration are complied with. This also applies to persons who have pursued an activity that may have caused damage or detriment to the environment. This so called shifted burden of proof applies in cases concerning permissibility, permits, approvals and exceptions, and conditions thereof, as well as administrative supervision and most enforcement cases. Most administrative law procedures in environmental matters under the Environmental Code thus demand more in terms of evidence from the operator, or the polluter. The rules do not apply in criminal law cases, in administrative cases similar to criminal cases (as sanction fee cases MB 30), or in tort law cases. In these cases general rules of procedural law prevail.

In the administrative court ex officio procedure, new evidence can be provided in the court procedure, as long as it is relevant to the scope of the case. The court may also see to that new evidence is attained. This rule does not apply in civil and criminal procedures.

Criminal procedures concerning environmental matters are handled by a prosecutor of the Swedish Prosecution Authority. The prosecutor also must provide all the evidence, with the assistance of the police authorities. The person who initially filed a criminal complaint is not expected to provide evidence.

In civil procedures the parties have to produce all of their evidence (materials, witnesses, experts) to the court. The court will make the decision based only on the evidence produced by the parties and it will not, as a rule, gather additional evidence on its own.

Civil and administrative procedures are handled within the land and environment courts, consisting of technicians and expert judges as well as professional judges. This ensures expert knowledge and experience in the procedure. The court may also attain expert opinions as part of their investigatory duties, or order a party to the case to do so. As noted above, the one pursuing the relevant activity or taking the relevant measure has an extensive responsibility for investigation and evidence. As such they may be expected to provide expert opinions as proof. Contradictory parties or other involved persons may argue the need for such expert opinions, and may thus trigger the investigatory duties of the operator or the court.

Swedish court procedure is however based on so called free evidence theory, which means that the assessment and balancing of the evidence available in a case is up to the professional discretion of the court. Expert evidence is thus not binding on the court.

X. Injunctive Relief

Introduction

On principle, administrative decisions that are challenged on appeal would be suspended during the appeals procedure. The final decision will then be executable after appeal procedures have been exhausted. However, the matter is often specifically regulated in sectorial legislation. The matter must be investigated for each different kind of decision. Injunctive relief is more or less integrated in procedure for administrative decision-making and appeal, and not sought independently. Moreover, appeal of a local authority decision is often made to a regional administrative authority before access to appeal to the courts. The following text informs of appeals procedures both to higher administrative authorities, and to the courts.

Permit Decisions

Suspending the decision pending appeal is the basic rule for permit decisions. A permit obligation entails a prohibition to start or to continue operating the relevant installation without a valid permit (see MB 7:28a, 9:6, 11:9)[55]. The operator will have to wait for the full appeals procedure to reach a final and legally valid permit decision. However, the permit authority (county administrative board or land and environmental court) may decide on immediate execution, meaning that the permit can be claimed earlier despite lack of final legal validity, provided the applicant can show a special need for it. The applicant must often also provide certain financial security (MB 22:28. See also: MB 19:5 and 23:7, referring to 22:28). On appeal against the permit decision, the appellate court may revoke such a preliminary permit provision (MB 22:28). In sum: permit decisions will as a rule be suspended on appeal, but the permit authority can undo such suspension.

Administrative Enforcement Decisions

The situation is different for administrative enforcement orders or sanctions instruments regulated under MB Chapter 26 and 30. Motivated by the necessity of effective enforcement, such decisions may be executed despite a pending appeal. Administrative decisions may thus be executed immediately after the latest prescribed date for adherence of the order. Environmental sanction fees are always executable when the time limit for payment is reached, but for enforcement orders the enforcement authority has to decide on such immediate execution (MB 26:26 and 30:5). There are no specific prerequisites for such decision. The authority decides if the possibility for immediate execution is motivated in view of their general aims of securing legal compliance and protecting environmental interests etc. (MB 26:1, with reference to MB 1:1). Should, however, the addressee appeal the order, the appellate body (administrative authority or court) may on their application decide on an interim stay of execution – a sort of temporary injunction[56] (FL 28 §,[57] FPL 28 §,[58] through MB 20:3[59]) for example in a case of a problematic financial situation for the actor, where the execution could even lead to foreclosure. A decision from the authority to order an operator to stop his/her activity can be met by an application for a permit. In such case, the operator can provide a security in order to make the court halt the prohibition order (MB 21:5).

Injunctions through Private/Tort Law Procedure

Environmental matters will most often be regulated through administrative guidance and decisions by public authorities – sometimes on an authority’s own initiative and sometimes in response to a complaint. Aside from this main route, there is also a possibility for an individual to bring action to an environmental court (MB 32:12, and 22:2) against so-called environmentally hazardous activities (land use causing pollution or other kinds of nuisance to its surroundings)[60]. Through such action the individual can apply for a court injunction prohibiting continued operation, or ordering necessary precautionary measures. The court’s decision can be appealed to the Land and Environmental Court of Appeal, and then move further to the Supreme Court. Leave of appeal is required in the higher courts. These cases are handled as civil cases, involving responsibility on the parties for providing evidence etc.

XI. Costs

Introduction

Costs that an applicant meets when seeking access to justice in environmental matter can be court fees or “application fees”, costs for legal representation, and generally costs involved in preparing the case. Court fees will generally not become relevant for the individual or NGO seeking access to justice in an environmental case. The costs will vary considerably, depending on the size and complexity of the environmental matter, the number of parties involved, and the issues one wants to assert. The principles for dividing the costs will also vary in different categories of environmental cases. In an administrative court procedure (for example concerning environmentally hazardous activities and appealed administrative decisions), the parties will normally pay their own respective costs. The “loser pays principle” is only applied in more typical private law cases (for example tort law), which are very rare in the Swedish system where a person is provided access to justice through complaining to administrative authorities. Costs for injunctive relief or interim measures are not an issue in the Swedish system, where an appeal will generally have suspending effect.

The different categories of cases are regulated in different procedural law legislation, including both general procedural law and special regulation of land and environmental courts in the Environmental Code (MB) Chapter 25[61], and the Ordinance on fees in cases under MB.[62]

Costs in different kinds of environmental cases

In water law application cases – concerning different kinds of permit regulation etc. – there are considerable court fees paid by the operator applying for the permit or authorisation. The applicant stands all the procedural costs of all the parties before the court, both in the first instance and in the appeals procedure (MB 25:2). This includes lawyer fees and costs for meeting facilities, etc. However, this does not apply to environmental NGOs, which will always carry their own costs.[63]

There are no court fees for appeal of administrative decisions, which is a common case type, and an appellant will only have to carry their own costs. Matters concerning so-called environmentally hazardous activities – installations that cause pollution and other nuisance to their surroundings – are more of the administrative law character. In cases on these matters, all the involved parties will bear their own costs (see: MB 25:1). The operator pays fees administrated by the regional county administrative board. [64] These fees are paid as a yearly sum after the permit has been issued and are meant to cover the costs for the work of the court and authorities under the government involved in the case, as well as costs for supervision of the operation.

A case that illustrates the different division of court costs is MÖD 2010:39.This case concerned permitting a mixed water activity and an environmentally hazardous activity. In this case the permit applicant only had to pay the costs of an opposing party – an injured neighbour of the activity – to the extent the costs were associated to the water permit part of the case. The opposing party had to stand the costs associated to regulation of the environmentally hazardous activity himself.

In private law cases, when a person sues for damages or seeking a court injunction prohibiting the activity or demanding precautionary measures, the application fee is 450 Swedish kronor (SEK). In these cases the losing party will, as a rule, have to pay the costs of the winning side. The court may however decide that the parties should pay their own costs in cases where a court injunction has been denied.

Lawyer fees, etc.

Lawyer and expert fees will vary considerably between different cases. There is no fixed lawyer fee. One should expect a minimum lawyer fee of about 1100 SEK per hour. Experienced lawyers, and members of the Swedish Bar Association can be expected to charge a higher fee. In the illustrating case above (MÖD 2010:39) the injured neighbor contesting the authorization of an activity including both water activities (dredging), and environmentally hazardous activities (deposit of the dredged materials), claimed lawyer fees of 180 000 SEK. The court, however, found that the lawyer (which was a member of the bar association) had, in relation to the scope of the case, put in too much work. They found it reasonable to award 35 000 SEK for lawyer fees and 3256 SEK for expenses. It should be noted that it is not obligatory to have legal representation before a Swedish Court.

In summary

In summary, this shows that procedural costs in cases concerning environmental matters are to a great extent born by the operator of an activity. In water law cases, they will stand the costs of all the parties. In cases concerning appeal of administrative decisions, and all cases concerning environmentally hazardous activities, all the involved parties will bear their own costs. Only in the rare private law cases, when a concerned person seeks damages or a court injunction to regulate an activity, that person risks bearing the opposing partie's costs. It should also be noted that the Swedish administrative law procedure in administration and in courts is built on the principle that the decision-making authority or court has a duty to ensure appropriate investigation of the facts of the case. One reason for this rule is to make it easier for an individual to get access to justice without having to take on extensive costs for legal representation and expert consultation. Furthermore, Swedish environmental law is built on an extensive burden of investigation and proof for the operator causing environmental risks of some significance. These matters will ease the procedural burdens and costs of a person (other than the operator) seeking access to justice in environmental matters.

XII. Financial Assistance Mechanisms

The Swedish environmental law system provides access to justice by way of introducing complaints to the administrative organs, and appeal of their acts or omissions in a court procedure that will generally not entail very high financial risks for the complainant. Consequently, financial assistance mechanisms of different kinds are not very well established. Pro bono legal assistance is not obligatory and has not been that common at Swedish law firms up until the 1990s. Today, law firms are starting to engage in more and more pro bono work, especially in cases concerning asylum and social law. Environmental law cases are not that common in pro bono programmes. Legal clinics dealing with environmental cases are generally not found in Sweden, and neither are public interest environmental law organisations. There are a few environmental NGOs that have legal expertise and have been granted access to justice in environmental law cases. These NGOs have to some extent provided legal representation for private individuals to support them in complaints and appeals procedures.

Court exemptions for procedural costs have little place in the described system where the parties will generally pay their own costs, and court fees are normally not relevant for the individual seeking access to justice in environmental matters. Moreover, the complainant’s procedural burdens should normally be eased through the fundamental duties of the court, as well as the decision-making administrative authority, to ensure that the case is fully investigated (see XI). The courts may decide on mitigation of costs to be paid by the complainant in the rare private law cases, or decide that the parties shall bear their own costs.

Most Swedish home insurances will provide some financial support in legal matters. There is also the possibility for legal aid under the Legal Aid Act.[65] Only natural persons with an income of under 260 000 SEK a year can receive legal aid, if it is not possible to get legal assistance in any other way (legal costs covered by insurances in hence not covered), and if it is considered reasonable that the state should provide legal aid. As Swedish environmental procedure is basically free from cost, there is little legal aid available. Applications for legal aid has generally been turned down by the Land and Environmental Court of Appeal (earlier the Environmental Court of Appeal)[66] with reference to the “ex officio principle, and the investigatory duties of the court.

XIII. Timeliness

Introduction

Of tradition, Swedish legislation will normally not provide rules stating procedural time limits for public authorities, and consequently no direct sanction or consequence of delay. There are general rules and principles that demand general consideration of timeliness and due procedure. The meaning of these rules and principles has to be drawn from case law and the statements of the Parliamentary Ombudsman.

Timeliness in the decision-making of administrative organs

According to general administrative law, an administrative organ must deliver a timely decision. However, timeliness is not specified in exact time limits, but expressed as a general provision of proper administrative procedure (FL 7 §). This provision requires as simple, rapid and economical case handling as possible without jeopardising legal security. The administrative organ’s duties to obtain necessary information and consult other authorities are also prescribed, as well as duties to facilitate the individual’s dealing with it. The more specific assessment of timeliness will have to be made in the context of the individual case, and in consideration and balancing of all the demands for proper administrative case handling. In administrative practice stated mainly by the Parliamentary Ombudsman, the time frame can vary considerably between simple cases and more complex cases requiring extensive investigation, etc. A time frame of 3 months after completed handling to a simple and straightforward decision was considered “completely indefensible” (JO 1989/90 s. 319).

There are no sanctions directly connected to delay by administrative authorities in delivering a decision. There are some possibilities for suing the administration for damages (NJA 1998 s. 893). Such possibilities are nevertheless very limited, due to strict tort law requirements of sufficient evidence for financial loss directly caused by the delay. Complaint of a delay will instead normally be made to the Parliamentary Ombudsman, which may state their quite authoritative criticism, but without any actual sanctions.

Timeliness in land and environmental courts

Swedish law sets no express time limits for the court procedures in environmental matters, including no deadline for the court to deliver its decision. In “application cases” regarding the application for different kinds of permits or authorisations, the court must make an announcement of the case “as soon as possible”, and communicate with the parties to the case. However, again, no set time limits are set. Fundamentally, timeliness in the environmental courts is protected by the right to fair trial. This right is stated in the European Convention of Human Rights (ECHR), which is fully incorporated in Swedish law. Since 2011, the Swedish constitution also states, in RF 2:11, that a court trial shall be conducted fairly and within reasonable time. Swedish case law states a variation of time frames for the court procedure in different kinds of cases, reflecting an assessment of the complexities and investigatory requirements of the cases for a fuller picture of fair and timely trial (e.g. NJA 2005 s. 462), similarly as for administrative decisions.

There is a general time frame of three weeks for appeal. Appeal of a decision from an administrative authority must be made within three weeks from the day when the appellant was notified of the decision (FL 23 §), and appeal of a final decision from a land and environment court, within three weeks from the day of the decision (38 § of the Act on Administrative Procedure in Court (ÄL),[67] the court may order the party to provide required materials within a certain time frame decided by the court (MB 22:2 and ÄL 9 §).

As there are no specific time frames for the court procedure, there are no sanctions against courts delivering its decisions in delay either. The time-consuming environmental procedure has been under a lot of debate in recent years. The time frame varies considerably, but in major cases about a year in each legal organ is common, and the total duration will then depend on the number of instances involved in the individual matter. The applicant can, however, in every Court instance, apply for priority under the general Act (2009:1058) on Priority Declaration in Court.

A delay can in certain cases constitute misuse of office on part of the judge. Misuse of office constitutes a criminal offence under the Penal Code (BrB 20:1). There are possibilities for damages for the person injured by the extensive delays. Damages can be rewarded especially in cases constituting infringement of the right to fair trial within reasonable time. The ECHR requires such remedies, and the same has since developed in Swedish case law (see: NJA 2005 s. 462). A review proposal of codification of such remedies[68] is currently awaiting further action by the government on how to proceed on the matter.

XIV. Other Issues

Environmental decisions are generally challenged through the appeal of an administrative decision. A concerned party will often be involved from the beginning in the administrative decision-making procedure, and then appeal a decision, which they find unsatisfactory. NGOs and state and municipal authorities with standing will sometimes get involved at a later stage in the appeals procedure. Information about access to justice is provided to the public quite well, but not in a collected and structured matter. Public authorities, both municipal and state authorities, have accessible information on access to justice concerning their decisions. Such information is normally available on their web site,[69] or can be attained through contact with the authority. Public authorities have a general service duty, which includes answering questions and helping people find information about access to justice.

Alternative dispute resolution does exist in Sweden, for example for consumer law complaints cases, and in private dispute resolution initiatives, for example in insurance matters. Mediation and conciliation is commonly used in civil procedure, as part of the pre-trial procedure. Environmental law cases generally have more the character of administrative procedure, concerning public interests as well as the interests of the private parties. There is therefore less room for mediation in environmental matters.

XV. Being a Foreigner

There are no specific anti-discrimination clauses regarding language or country of origin in the Swedish procedural law, aside from the special act on national minorities which is noted further down. However, the Swedish constitution prescribes, in RF 1:9, that courts, administrative authorities, and other bodies fulfilling public administrative functions shall observe objectivity and impartiality in their work, and pay regard in their work to the equality of all before the law. This provision is central in Swedish public law, and it is actively applied in the control of public authorities.

Swedish court procedure is carried out in Swedish, which is the language of all public bodies (The Language Act 10 §)[70]. However, the Act (2009:724) on national minorities and minority language[71] allows the use of Finnish, Meänkieli (Torne valley Finnish), and Sami in court. The court provides an interpreter for a party, a witness, or other persons that will be heard by the court, if they do not know Swedish (RB 5:6). The court pays the costs for interpretation and translation.

XVI. Transboundary Cases

There is no specific Swedish procedural legislation on cases involving environmental issues in another country. However, in the EIA procedure, regulated in MB Chapter 6,[72] it is stated that if an activity that may be expected to cause significant effects in another country, the competent public authority in that country must be informed. The affected state and its public concerned shall have the opportunity to participate in the permit and EIA procedure consultations (MB 6:6). The decision-making authority or court of the procedure, must inform the competent authority of the affected country of its decision.

The public concerned of an affected country have standing under the same conditions as Swedish individuals. These standing rules are not limited to Sweden. This is true for NGOs of an affected country. However, the organisational requirement in MB 16:13, stating that the organisation must have operated in Sweden for a minimum of three years may entail an obstacle for standing for foreign NGOs. It has been argued, however, that the Nordic Convention on Environmental Protection principle of non-discrimination must apply here. This means that environmental NGOs of Denmark, Finland and Norway must have the opportunity to act before Swedish courts, provided that the relevant activity affects their country, and that they have been active in any of these countries for three years. There is, however, a pending proposal to remove the three years prerequisite.[73]

Related Links

Referred Legislation :

National Legislation is also freely available at:

The Swedish Courts:

Link opens in new windowhttp://www.dom.se/ (with seach page for case law from many different courts at: Link opens in new windowhttp://www.rattsinfosok.dom.se/lagrummet/index.jsp)

The Swedish bar association (where environmental lawyers can be searched on “find a lawyer”):

http://www.advokatsamfundet.se/Advokatsamfundet-engelska/Home/

NGOs active in access to environmental justice:

Ombudsman offices:

The Swedish Prosecution Authority (with links to the prosecution offices under “kontakt”): Link opens in new windowhttp://www.aklagare.se/In-English/

The Enforcement and Regulations Council: http://www.tofr.info/In-English/

 


[1] Regeringsform (1972:152), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Kungorelse-1974152-om-beslu_sfs-1974-152/, and in English: Link opens in new windowhttp://www.riksdagen.se/en/Documents-and-laws/Laws/The-Constitution/.

[2] Förvaltningslag (1986:223), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1986-223/, and in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/5805/a/64892.

[3] Lagen (2006:304) om rättsprövning av vissa regeringsbeslut, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-2006304-om-rattsprovnin_sfs-2006-304/?bet=2006:304.

[4] For more information, also in English, go to the web site of the Swedish courts, at: Link opens in new windowhttp://www.domstol.se/Funktioner/English/The-Swedish-courts/.

[5] Förvaltningsprocesslag (1971:291), available at: http://www.riksdagen.se/webbnav/index.aspx?nid=3911&dok_id=SFS1971:291&rm=1971&bet=1971:291, and in English at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/3926/a/26143.

[6] Kommunallag (1991:900), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Kommunallag-1991900_sfs-1991-900/, and in English at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2008/a/29535.

[7] Available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Kungorelse-1974152-om-beslu_sfs-1974-152/#K11, and in English at: Link opens in new windowhttp://www.riksdagen.se/en/Documents-and-laws/Laws/The-Constitution/.

[8] Miljöbalk (1998:808), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[9] In Swedish: “Mark- och miljödomstolar” and “Mark- och miljööverdomstolen”. For more information, go to the web site of the Swedish courts, at: Link opens in new windowhttp://www.domstol.se/Funktioner/English/The-Swedish-courts/District-court/Land-and-Environment-Courts/.

[10] The court organisation and jurisdictions are regulated in the Act (2010:921) on Land and Environment Courts (Lagen om mark- och miljödomstolar, LOM), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-2010921-om-mark--och-mi_sfs-2010-921/?bet=2010:921. See also: Ordinance (2010:984) on the Jurisdictions of the Land and Environment Courts (Förordning om mark- och miljödomstolarnas domsområden, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forordning-2010984-om-mark-_sfs-2010-984/.

[11] Plan- och bygglagen (2010:910), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Plan--och-bygglag-2010900_sfs-2010-900/,

[12] Rättegångsbalk (1942:740), available at: http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Rattegangsbalk-1942740_sfs-1942-740%20A/, and in English at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/3926/a/27778.

[13] Lagen (1996:242) om domstolsärenden), available at: Link opens in new windowhttp://www.notisum.se/rnp/sls/sfs/20101966.pdf.

[14] Act (2010:921) on Land and Environment Courts (Lagen om mark- och miljödomstolar, LOM), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-2010921-om-mark--och-mi_sfs-2010-921/?bet=2010:921

[15] Link opens in new windowhttp://www.sweden.gov.se/sb/d/2184/a/15521.

[16] Tryckfrihetsförordningen (1949:105), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1949-105/#K2. English version can be downloaded at: Link opens in new windowhttp://www.riksdagen.se/en/Documents-and-laws/Laws/The-Constitution/

[17] According to TF 2:12, the authority may not ask for the applicant’s identity of purpose, unless, and to the extent this is needed for the assessment of secrecy (which becomes relevant mostly in cases of sensitive personal information).

[18] The Act (2005:181) on Environmental Information at Some Private Entities. Available in Swedish at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-2005181-om-miljoinforma_sfs-2005-181/?bet=2005:181.

[19] Offentlighets- och sekretesslag (2009:400), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-2009-400/. A brochure in English explaining the contents and meaning of the Act can be downloaded at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/11929/a/131397.

[20] Link opens in new windowhttp://utslappisiffror.naturvardsverket.se/en/.

[21] Link opens in new windowhttp://www.miljomal.se/Environmental-Objectives-Portal/Environmental-indicators/.

[22] Administrative Procedure Act, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1986-223/, in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/5805/a/64892.

[23] Administrative Court Procedure Act, available at: http://www.riksdagen.se/webbnav/index.aspx?nid=3911&dok_id=SFS1971:291&rm=1971&bet=1971:291, and in English at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/3926/a/26143.

[24] Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1986-223/, and in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/5805/a/64892.

[25] Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1949-105/#K2.

[26] Link opens in new windowhttp://www.jo.se/Page.aspx?Language=en.

[27] Brottsbalk (1962:900), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Brottsbalk-1962700_sfs-1962-700/#K20, and in English at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/3926/a/27777.

[28] The largest and most environmentally hazardous activities are however licensed by the land and environment Courts.

[29] Administrative Procedure Act, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1986-223/, in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/5805/a/64892.

[30] Plan- och bygglag (2010:900), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Plan--och-bygglag-2010900_sfs-2010-900/. There is no official and current English version.

[31] Environmental Code, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[32] Kommunallag (1991:900), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Kommunallag-1991900_sfs-1991-900/, and in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2008/a/29535.

[33] Förordning (1998:905) om miljökonsekvensbeskrivning, available at: http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forordning-1998905-om-miljo_sfs-1998-905/

[34] Förordning (1998:899) om miljöfarlig verksamhet och hälsoskydd, available at: http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forordning-1998899-om-miljo_sfs-1998-899/?bet=1998:899

[35] Environmental Code available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[36] Environmental Code, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[37] In Swedish: “miljöfarlig verksamhet”, regulated mainly in MB Chapter 9, see: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[38] Environmental Code, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[39] Link opens in new windowhttp://www.aklagare.se/In-English/.

[40] See, RF 13:6 and the Parliamentary Ombudsman Instruction Act (1986:765), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/sfs_sfs-1986-765/.

[41] For legislation on the competences of JK, see: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forordning-19751345-med-ins_sfs-1975-1345/, and Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/sfs_sfs-1975-1339/.

[42] See, legislation on JK procedure on damages against the state, at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forordning-19951301-om-hand_sfs-1995-1301/.

[43] Administrative Procedure Act, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1986-223/, in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/5805/a/64892.

[44] Environmental Code: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[45] RÅ 1997 s. 590 I.

[46] RÅ 1993 ref. 97.

[47] In the Swedish Government there is a pending proposal (M2012/2031/R) to remove the 3-year prerequisite, see: Link opens in new windowhttp://www.regeringen.se/sb/d/16399/a/197400.

[48] Plan- och bygglag (2010:900), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Plan--och-bygglag-2010900_sfs-2010-900/.

[49] Jaktlag (1987:259), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Jaktlag-1987259_sfs-1987-259/?bet=1987:259.

[50] Skogsvårdslag (1979:429), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Skogsvardslag-1979429_sfs-1979-429/?bet=1979:429.

[51] Administrative Court of Luleå 2011-10-21 in case No. 446-11, and Administrative Court of Appeal of Sundsvall 2012-10-03 in case No. 2850-11

[52] See the Supreme Administrative Court judgment 2012-06-28 in case 7943-11, stating that the court of appeal should have granted leave of appeal.

[53] MÖD 2012:47 and MÖD 2012:48.

[54] Link opens in new windowhttp://www.advokatsamfundet.se/Advokatsamfundet-engelska/Find-a-lawyer/.

[55] Environmental Code: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[56] In Swedish: “inhibition”.

[57] Administrative Procedure Act, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/_sfs-1986-223/, in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/5805/a/64892.

[58] See: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forvaltningsprocesslag-19712_sfs-1971-291/?bet=1971:291, in English: Link opens in new windowhttp://www.sweden.gov.se/sb/d/3926/a/26143.

[59] See: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[60] In Swedish: “miljöfarlig verksamhet”, regulated mainly in MB Chapter 9, see: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[61] Environmental Code: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[62] Förordningen (1998:940) om avgifter för prövning och tillsyn enligt miljöbalken, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forordning-1998940-om-avgif_sfs-1998-940/. For an unofficial government agency translation, see: http://www.kemi.se/Documents/Forfattningar/%C3%96vers%C3%A4ttningar/F98_940_fees_en.pdf.

[63] Defined in MB 16:13 as a non-profit association, or other legal entity, whose main purpose is to promote nature conservation or environmental protection interests, who has operated in Sweden for at least three years, and has at least 100 members or shows otherwise that their activities have the support of the public.

[64] See Chapter 2 of Ordinance (1998:940) on Fees in Cases under the Environmental Code. http://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Forordning-1998940-om-avgif_sfs-1998-940/

[65] Rättshjälpslagen (1996:1619), available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Rattshjalpslag-19961619_sfs-1996-1619/. Information in English available at: Link opens in new windowhttp://www.domstol.se/Publikationer/Informationsmaterial/Legal_aid_in_Sweden.pdf.

[66] MÖD 2003:66.

[67] Lagen (1996:242) om domstolsärenden, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-1996242-om-domstolsaren_sfs-1996-242/?bet=1996:242.

[68] SOU 2010:87 Skadestånd och Europakonventionen, available at Link opens in new windowhttp://www.regeringen.se/sb/d/108/a/157283.

[69] See, for examples: Swedish Environmental Protection Agency Handbook on appeal in species protection matters, http://www.naturvardsverket.se/Handbocker/Artskyddsforordningen/Tillstanddispens/Undersida-tillstand/Overklagande/; the Halland County Administrative Board on appeal of planning law decisions, Link opens in new windowhttp://www.lansstyrelsen.se/halland/Sv/om-lansstyrelsen/overklaga/overklaga-beslut/Pages/index.aspx; or Boden Municipality on appeal of decisions by their Environment and Building Board, Link opens in new windowhttp://www.boden.se/db/web/external.nsf/0/8F0A27B28CC73A71C12571080033C61E?opendocument.

[70] Språklagen (2009:600). English version available at: http://www.regeringen.se/content/1/c6/13/81/02/3cf6b7f0.pdf.

[71] Lag (2009:724) om nationella minoriteter och minoritetsspråk, see Swedish, English and minority language versions at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Lag-2009724-om-nationella-m_sfs-2009-724/, and Link opens in new windowhttp://www.lansstyrelsen.se/stockholm/Sv/manniska-och-samhalle/nationella-minoriteter/Pages/ny-lag-om-nationella-minoriteter.aspx.

[72] Environmental Code, available at: Link opens in new windowhttp://www.riksdagen.se/sv/Dokument-Lagar/Lagar/Svenskforfattningssamling/Miljobalk-1998808_sfs-1998-808/, and an older version in English, at: Link opens in new windowhttp://www.sweden.gov.se/sb/d/2023/a/22847.

[73] M2012/2031/R, available at: Link opens in new windowhttp://www.regeringen.se/sb/d/16399/a/197400.


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Last update: 14/09/2016