9789144129853

THE FUNDAMENTALS OF

Swedish Law Laura Carlson

Copying prohibited This book is protected by the Swedish Copyright Act. Apart from the restricted rights for teachers and students to copy material for educational purposes, as regulated by the Bonus Copyright Access agreement, any copying is prohibited. For information about this agreement, please contact your course coordinator or Bonus Copyright Access.

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Art. No 33565 ISBN 978-91-44-12985-3 Edition 3:1 Š Laura Carlson and Studentlitteratur 2009, 2019 studentlitteratur.se Studentlitteratur AB, Lund Cover design: Francisco Ortega Cover photo: Martine Castoriano Printed by Dimograf, Poland 2019

To my beloved daughter Lovisa

We are all slaves to the law, so that we might be free.

Cicero

SUMMARY OF CONTENTS

Tables and diagrams 17 Acknowledgments 19

PART I The Institutions and Systems 21 C H A P T E R 1 The Institutions and Legal System 23

C H A P T E R 2 Individual Rights under the Constitution 57

C H A P T E R 3 European Union Law 87

C H A P T E R 4 Procedural Law and Arbitration 127

C H A P T E R 5 Criminal Law and Procedure 153

C H A P T E R 6 Administrative Law and Procedure 179

PART II The Basics 197 C H A P T E R 7 Family Law 199

C H A P T E R 8 Legal Personhood, Capacity and Agency 225

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C H A P T E R 9 Contract Law 243

C H A P T E R 10 Debtors and Creditors 257

C H A P T E R 11 Property Law 279

C H A P T E R 12 Tort and Insurance Law 319

PART III Specific Topics in Contract and Commercial Law 339 C H A P T E R 13 The Law of Business Organizations 341

C H A P T E R 14 Sales 361

C H A P T E R 15 Intellectual Property Rights and Unfair Trade

Practices 383 C H A P T E R 16 Labor and Employment Law 401

C H A P T E R 17 Land Leases 435

C H A P T E R 18 Landlord Tenant Law 455

Bibliography 485 Index 489

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Tables and diagrams 17 Acknowledgments 19

PART I The Institutions and Systems 21 C H A P T E R 1 The Institutions and Legal System 23

1.1 The National Institutions 25 1.1.1 The Parliament 26 1.1.2 The Government 29 1.1.3 Elections and Political Parties 31 1.2 Local Government 33 1.3 The Judicial System 35 1.4 The Legal System 38 1.4.1 Sources of Law 42 1.4.2 Scandinavian Legal Realism 52 1.5 The Education and Regulation of Lawyers 53 C H A P T E R 2 Individual Rights under the Constitution 57

2.1 Access to Public Documents and Freedom of the Press 58 2.1.1 Access to Public Documents 59 2.1.2 Freedom of the Press 62 2.1.3 Right to Anonymity 64 2.1.4 Disclosures by public employees 64 2.1.5 Offences under the Freedom of Press Act 65 2.2 The Fundamental Law on Freedom of Expression 66

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2.3 Individual Rights and the Instrument of Government 67 2.3.1 The 1974 Instrument of Government 68 2.3.2 Chapter Two Rights 70 2.3.3 Absolute v. Qualified Chapter Two Rights 75 2.3.4 Non-Citizens and Chapter Two Rights 78 2.4 The European Convention 80 2.4.1 Dualism in Sweden 80 2.4.2 The Protections under the European Convention 83 2.4.3 ECHR Protections in the Swedish Context 84 C H A P T E R 3 European Union Law 87

3.1 The Emergence of the Union 89 3.1.1 The Origins: 1951 to 1986 90 3.1.2 Towards the European Union 93 3.1.3 The EU at the Turn of the New Millennium 96 3.1.4 The Lisbon Treaty 97 3.2 The Structure of the EU 100 3.3 EU Lawmaking Institutions 102 3.3.1 The European Council 103 3.3.2 The Court of Justice of the European Union 104 3.3.3 The European Court of Auditors 106 3.3.4 The European Commission 106 3.3.5 The Council of the European Union 109 3.3.6 The European Parliament 110 3.3.7 The EESC and Cor 111 3.3.8 The Social Partners within the EU 111 3.3.9 EU Agencies 113 3.4 EU Law 113 3.4.1 The Primary Legislation: The EU Treaties 114 3.4.2 The Charter of Fundamental Rights of the European Union 116 3.4.3 The EU and the European Convention 116 3.4.4 The Secondary EU Legislation 118 3.4.5 General Principles of EU Law 120 3.4.6 EU Soft Law 121 3.4.7 EU Legislative Procedures 121

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C H A P T E R 4 Procedural Law and Arbitration 127

4.1 General Characteristics of Procedural Law 129 4.1.1 Evidence 131 4.1.2 Evidentiary Privileges 131 4.1.3 Priority Status 132 4.2 Civil Litigation 133 4.2.1 The Pre-Trial Phase 134 4.2.2 The Trial 139 4.2.3 Legal Aid 140 4.2.4 The Judgment and Appeal 141 4.2.5 Enforcement of Judgments 145 4.2.6 Conflict of Laws 146 4.3 Arbitration 148 C H A P T E R 5 Criminal Law and Procedure 153

5.1 Criminal Law 155 5.1.1 The Elements of a Crime Generally 156 5.1.2 Attempt, Preparation, Complicity, Conspiracy and Failure to Report 159 5.1.3 Criminal Defenses 160 5.1.4 Statute of Limitations 161 5.2 Criminal Sanctions 161 5.2.1 Criminal Penalties 162 5.2.2 Other Criminal Sentences 164 5.2.3 Civil and Administrative Actions 165 5.3 Criminal Procedure 165 5.3.1 The Criminal Investigation Phase 166 5.3.2 The Trial 172 5.3.3 Sentencing 174 5.3.4 Appeals 177 C H A P T E R 6 Administrative Law and Procedure 179

6.1 Municipal Law 180 6.2 General Administrative Law 183

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6.2.1 Initiating an Administrative Action 186 6.2.2 Assistance in Bringing Claims 186 6.2.3 Proceedings 187 6.2.4 Conflicts of Interest 188 6.2.5 Decisions 188 6.2.6 Appeals 189 6.3 Administrative Judicial Procedure 190 6.3.1 Appeals of Administrative Decisions 191 6.3.2 The Proceedings 193 6.3.3 Evidence 194 6.3.4 The Judgment and Further Appeals 194 6.3.5 Judicial Review of a Government Decision 195 PART II The Basics 197 C H A P T E R 7 Family Law 199

7.1 Marriage and Spouses 199 7.1.1 Marital Impediments 201 7.1.2 The Marriage Ceremony 202 7.1.3 The Financial Relationship Between Spouses 203 7.1.4 Dissolution of Marriage 204 7.1.5 The Division of the Marital Property Estate 205 7.1.6 Maintenance Obligations After Divorce 208 7.2 Cohabitees 209 7.3 The Relationship between Parents and Children 211 7.3.1 The Parents of a Child 212 7.3.2 Adoption 214 7.3.3 The Child’s Name 216 7.3.4 Custody and Maintenance 216 7.3.5 The Legal Capacity of Minors 218 7.4 Guardianships for Minors and Adults 220 7.5 Inheritance Law 220 7.5.1 Heirs 221 7.5.2 Wills 222

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C H A P T E R 8 Legal Personhood, Capacity and Agency 225

8.1 Legal Capacity 225 8.2 Agency 228 8.2.1 The Grant of Authority 228 8.2.2 Revoking an Agency 233 8.3 Specific Types of Agencies 235 8.3.1 General Agents 235 8.3.2 Professional Service Providers 236 8.3.3 Commercial Agents 237 8.3.4 Self-Employed Commercial Agents 238 C H A P T E R 9 Contract Law 243

9.1 Offer and Acceptance 245 9.2 Defenses to a Contract 248 9.2.1 Defenses to Assent 248 9.2.2 Defenses to Performance 250 9.2.3 Other Contractual Defenses and Rights 251 9.3 The Function and Interpretation of Contracts 252 9.4 Standard Agreements 254 C H A P T E R 10 Debtors and Creditors 257

10.1 Payment and Debt Instruments 259 10.1.1 Notes 259 10.1.2 Bills of Exchange and Checks 262 10.1.3 The Giro System 262 10.2 Perfecting Security Interests 263 10.2.1 Security Interests in Chattels 263 10.2.2 Right of Retention 267 10.2.3 Security Interests in Real Property 268 10.3 Payment and Discharge 270 10.4 Set-Off 271 10.5 Enforcing Debts 272 10.6 Bankruptcy 274

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C H A P T E R 11 Property Law 279

11.1 Personal Property 280 11.1.1 Chattels 281 11.1.2 Intangibles 281 11.1.3 Housing Cooperatives 281 11.2 Real Property Legislation 284 11.3 Property Units 286 11.3.1 Fixtures 287 11.3.2 Easements 290 11.3.3 Joint Facilities 293 11.4 Ownership and its Limits 294 11.4.1 The Right of Public Access 295 11.4.2 Changes in the Property Unit or Use 296 11.4.3 Liability under the Environmental Code 297 11.4.4 Expropriation 299 11.4.5 Preemption Rights 301 11.5 Conveying Property Units 302 11.5.1 Documentation Regarding a Transfer by Sale 302 11.5.2 Transfers Regarding Part of a Property Unit 305 11.6 The Rights and Obligations of Sellers and Buyers 305 11.6.1 Allocation of Risk 305 11.6.2 Physical Defects 307 11.6.3 Intangible Defects 308 11.6.4 Notice as to Defect 310 11.6.5 Buyer’s Failure to Pay 311 11.7 Registration of Ownership 311 11.8 Competing Ownership or Rights Claims 314 11.8.1 Adverse Possession 314 11.8.2 Priority of Competing Rights based on Registration 314 11.8.3 Bona Fide Purchasers 315 11.8.4 Dispossession by a Better Right 316 11.9 Dispute Resolution 317

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C H A P T E R 12 Tort and Insurance Law 319

12.1 Torts 319 12.1.1 The Assessment of Liability 320 12.1.2 Compensation 325 12.1.3 Reductions in Compensation 327 12.2 Respondeat Superior 328 12.3 Employee Liability 329 12.4 Strict Liability 329 12.5 Products Liability 330 12.6 Insurance Law 331 12.6.1 Public Insurance 331 12.6.2 Private Insurance 332 12.6.3 An Example of No-Fault Private Insurance 334 12.6.4 The Legal Regulation of Private Insurance 335 12.6.5 Consumer Recourse 338 PART III Specific Topics in Contract and Commercial Law 339 C H A P T E R 13 The Law of Business Organizations 341

13.1 Sole Proprietorships 341 13.2 Companies 342 13.2.1 Joint Ventures 342 13.2.2 General Partnerships 343 13.2.3 Limited Partnerships 345 13.2.4 Corporations 345 13.2.5 European Companies 354 13.3 Cooperative Enterprises 355 13.3.1 Commercial Cooperatives 355 13.3.2 Non-profit Cooperatives 356 13.3.3 European Cooperative Societies 357 13.4 Foundations 358

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C H A P T E R 14 Sales 361

14.1 The Sale of Goods Act 361 14.1.1 The Transfer of Risk 362 14.1.2 The Goods 363 14.1.3 Performance by the Parties 364 14.1.4 Remedies 365 14.2 The Consumer Sale of Goods Act 367 14.2.1 The Transfer of Risk 368 14.2.2 The Goods 368 14.2.3 Performance and Remedies 369 14.2.4 Privity of Contract 370 14.3 The Consumer Sale of Services Act 371 14.3.1 The Duties of the Service Provider 371 14.3.2 Non-conforming Services 372 14.3.3 Payment by the Consumer 373 14.3.4 Remedies 374 14.4 International Sale of Goods – CISG 375 14.4.1 The Offer, Acceptance and Contract 377 14.4.2 Contract Interpretation 378 14.4.3 The Transfer of Risk 378 14.4.4 The Goods 379 14.4.5 Performance by the Parties 379 14.4.6 Remedies 380 C H A P T E R 15 Intellectual Property Rights and Unfair Trade Practices 383

15.1 Intellectual Property Rights 383 15.1.1 Copyright 384 15.1.2 Patents 387 15.1.3 Trade Marks 388 15.1.4 Design Rights 390 15.1.5 Infringement of Intellectual Property Rights 391 15.2 Trade Secrets 392 15.3 Market Law 392 15.4 Competition Law 396

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15.4.1 The Regulation of Competition 397 15.4.2 The Swedish Competition Authority 398 15.5 The Patent and Market Courts 398 C H A P T E R 16 Labor and Employment Law 401

16.1 The Stages of Labor and Employment Law 402 16.2 The Social Partners 405 16.2.1 The Employer Central Organizations 407 16.2.2 The Employee Central Organizations 407 16.3 Labor Law 409 16.3.1 Freedom of Association 412 16.3.2 The General Right to Negotiate and the Right to Take Industrial Action 413 16.3.3 Collective Agreements 415 16.3.4 Joint Regulation/Co-Determination 418 16.4 Employment Law 425 16.4.1 Employment Protection 426 16.4.2 Employment Conditions 428 16.4.3 Employment Leave 429 16.4.4 Discrimination Legislation 432 C H A P T E R 17 Land Leases 435

17.1 The General Rules 436 17.1.1 Requirement of a Writing 437 17.1.2 Rights of Spouses 437 17.1.3 Payment and Reductions in Leasing Fees 437 17.1.4 Rights of the Lessor 438 17.1.5 Forfeiture of the Lease 438 17.1.6 Right of First Refusal 439 17.1.7 Buyout of Improvements 440 17.2 General Land Leases 440 17.3 Agricultural Land Leases 441 17.3.1 Duration of the Lease and Leasing Fee 441 17.3.2 Renewal, Modification or Termination of the Lease 442 17.3.3 Lessee’s Right to Damages 443 © T H E AU T H O R A N D S T U D E N T L I T T E R AT U R

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17.3.4 Maintenance, Leasehold Improvements and Investments 443 17.3.5 Settlement and Inspection 445 17.3.6 Assignment of the Lease and Buyout of Investments 445 17.4 Residential Land Leases 446 17.5 Commercial Land Leases 447 17.6 Site Leaseholds 449 17.6.1 Form Requirements 450 17.6.2 Fees and Modifications of Fees 450 17.6.3 Termination of a Site Leasehold 450 17.7 Lease Disputes 452 C H A P T E R 18 Landlord Tenant Law 455

18.1 Residential and Non-Residential Leases 457 18.1.1 The Rental Agreement 457 18.1.2 Duration of the Tenancy and Notice of Termination 458 18.1.3 Condition of the Premises Upon Possession 459 18.1.4 Condition of the Premises during the Rental Period 461 18.1.5 Tenant’s Consent to Improvements and Modifications 462 18.1.6 The Use and Care of the Premises by the Tenant 463 18.1.7 The Landlord’s Right to Enter or Repossess the Premises 464 18.1.8 Assignment and Subleasing of the Tenancy 465 18.1.9 Forfeiture of the Tenancy 466 18.1.10 Renewal of the Tenancy 469 18.1.11 Modifications of Residential Rental Agreements 471 18.1.12 Non-Residential Agreements 473 18.1.13 Miscellaneous Tenancy Provisions 475 18.2 Cooperative Rentals 476 18.3 Tenancy Dispute Resolution 480 18.3.1 Rent Negotiations with respect to Residential Premises 480 18.3.2 Regional Rent Tribunals 482

Bibliography 485 Index 489

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Individual Rights under the Constitution

Chapter one described the institutions of political power, the judiciary and the legal system as framed mainly in the Instrument of Government. This chapter focuses on the exercise of state power with respect to the individual as set out in the constitutional acts, the Instrument of Government, the Freedom of the Press Act, and the Fundamental Law on the Freedom of Expression. The role of the constitution and the limits of constitutional rights have been renewed topics of debate in Sweden since its 1995 membership in the European Union, particularly in light of the enactment of the ECHR as Swedish legislation effective 1998. This chapter first addresses the individual rights of access to public documents and the freedoms of the press and expression, then goes on to the second chapter of the Instrument of Government delineating individual rights in the form of human rights, concluding with the treatment of the ECHR in Swedish law.

There has been a long constitutional tradition in Sweden with respect to certain individual rights, specifically those in place to limit the unwarranted exercise of royal power as against the classes represented in the Parliament.

Swedish constitutional tradition arguably goes back to Magnus Eriksson’s Letter of Proclamation in 1319 (Frihetsbrev), which bound the crown to govern by rule of law, assure due process, and allow new taxes to be imposed only after consultation with the Royal Council.1 The first “Instrument of Government” was drafted in 1634 as a safety precaution to allow for a continued government administration in the absences of Swedish kings during war. The second Instrument of Government in 1719 after the death of King Karl XII marked 1 See generally Roger Congleton, Improving Democracy through Constitutional Reform – Some Swedish Lessons (Springer 2003).

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the beginning of a period lasting until 1772, referred to in Swedish history as the “Age of Liberty” (frihetstiden). The power of the King was diminished, giving greater political authority to the central administration and the Parliament. The third Instrument of Government was drafted by the politically strong King Gustav III in 1772, giving greater political power back to the king and marking the end of the Age of Liberty.2 The fourth Instrument of Government, adopted in 1809 after King Gustavus IV was removed from the throne for losing Finland to Russia, again redistributed the political power. This time the distribution was based more, but not completely, on a separation of power in line with Baron de Montesquieu’s political theory, between the King, Parliament, the Supreme Court and the National Bank.3 The current fifth Instrument of Government was adopted in 1974.

2.1

ccess to Public Documents and Freedom A of the Press

The strongest individual rights in Sweden arguably are those granted already by the 1766 Freedom of the Press Act, namely access to public documents and freedom of the press. This latter check gave rise to the designation of the press as the “third” branch of goverment. The constitutional protection of freedom of the press historically reflected initially the balance of power between the Parliament and King. The 1766 act adopted during the Age of Liberty granted broad protections as to freedom of the press and was one of the oldest, if not the oldest, legislative acts in Western society establishing such freedoms. It prohibited censorship and abolished printing licenses as well as established the right of public access to public documents (offentlighetsprincipen). The King, after regaining royal power, repealed the act through the 1772 Instrument of Government. Subsequent acts were passed, again reflecting the balance of power between the Parliament and King, with the

2 The 1772 Swedish Instrument of Government also governed Finland and was not formally replaced there until Finland’s first constitutional act, the 1919 Instrument of Government, was adopted.

3 At this time, justices of the Supreme Court were appointed by the King.

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1812 Freedom of Press Act in place until the present act was adopted in 1949, with significant later amendments, the most recent taken in 2018.

Areas that the current Freedom of the Press Act regulates include access to public document and freedom of the press. This might be seen as a strange marriage, but the original premise was that as a check against the excercise of public power, both the media and access to documents were necessary. Other integral components in freedom of the press as covered by the act include freedom from censorship, the right to anonymity, the right to the production and dissemination of printed material, and the offences against these rights as defined under the act. The current act is based on freedom from prior censorship by the state, imposing liability after publication for any abuses of this freedom on those persons designated as responsible under the act.

The rights granted under the Freedom of the Press Act and the Fundamental Law on the Freedom of Expression (which to a great extent mirrors the Freedom of Press Act but in a digital environment) can only be restricted by another constitutional act. This is in contrast to many of the rights granted in the second chapter of the Instrument of Government discussed below, which in certain cases can be restricted by a simple majority of the Parliament.

However, the right to access public documents may be limited by a law passed by a simple majority of the Parliament if falling within one of the enumerated categories.

2.1.1 ACCESS TO PUBLIC DOCUMENTS

Public access to government documents became an issue as early as the eighteenth century, when access to public documents was viewed as a central instrument for checking the activities of political power. Under the current right of public access to government documents, most documents received or generated by a public authority, whether at the municipal, regional or state levels, are to be available to individuals without any undue delay. Many see this institution as one of Sweden’s strongest contributions to the European Union as culminating in the enactment of Regulation 1049/2001 during the Swedish presidency, granting Union citizens and member state residents a right of access to the documents of the European Parliament, Council and Commission.

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The right of access to public documents can be restricted by law under article 2:2 of the Freedom of the Press Act if necessary with regard to the following enumerated categories: • National security or relations with foreign states or international organizations; • National financial, monetary or foreign exchange policies; • Inspection, control or other supervisory activities by public authorities; • Preventing or prosecuting crimes; • Public economic interests; • The protection of personal privacy or financial information; or • The preservation of animal or plant species.4 This listing is meant to be exhaustive and Parliament may not legislate restrictions falling outside the scope of this list. Further statutory restrictions based on this listing are found in the Public Access to Information and Secrecy Act (offentlighets- och sekretesslag 2009:400).

Four basic requisites are invoked with respect to public access to public documents: the first is that there has to be a public authority, the second there has to be a document, the document has to be received by or generated within an authority, and fourth, the document must be deemed to be public. The Parliament and municipal assemblies are included in the concept of public authorities. The Public Access to Information and Secrecy Act also states that certain private legal entities in which a municipality has a controlling interest are also to be seen as authorities with respect to these public access rights.

The same is not true, however, for those legal entities controlled by the state.

Documents are broadly defined in the Freedom of the Press Act as any writing or picture, or any recording that with technical assistance can be read or heard. The Freedom of the Press Act defines those documents that are to be deemed public documents, a delineation necessary to allow 4 This last exception is based on the circumstance that as so many statistics are kept in Sweden, poachers looking to illegally acquire certain animal or plant species, such as rare bird eggs or orchids, could simply find their locations from the public documents.

This exception was added to deter this type of unlawful conduct. See Legislative Bill 1975/76:160 at 109.

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government authorities to conduct business without having all drafts and other unfinished documents becoming public prematurely. To be classified a public document, the document must either be received by a government authority or generated by one. A necessary consequence of this right of public access is that all public documents received by public authorities are to be registered in a public register and archived for a certain period of time. If the document is generated by a public authority, the document does not become public until final or until archived. Consequently, working materials are not to be considered public documents while still works in progress.

Not all documents become accessible to the public, even if they fulfill the requirements of received or generated and final. Certain documents are classified as confidential. Two main types of classifications exist under this system of confidentiality, those documents deemed public which must be individually assessed as to confidentiality, and those documents of a more sensitive nature that are automatically deemed confidential and must be individually assessed as to whether they should be made public (omvänd sekretess).

Every public employee presented with a request of access is to address the request, either by immediately forwarding it to the appropriate person or by making an individual determination as to the confidentiality of that document. In other words, documents are not simply stamped confidential for a period of time with respect to all authorities and all requests after which the document becomes a part of the public domain. Each determination of public/private (if such prior designation is even known) needs to be reassessed with every request. Consequently, a stamp put on a document classifying it as confidential is only a reminder that the document contains confidentially sensitive information and may be confidential. Confidentiality is limited to a maximum of seventy years and if the information concerns an individual, seventy years after that person’s death. If possible, the document is to be produced with all the sensitive information deleted.

When requesting access to a document, the individual requesting the document needs not state her identity or the purpose for which the document is being requested, and is entitled to a copy of the document up to nine pages free of charge. Otherwise, the individual has the right to view the document at the offices of the government authority, or have it copied for a fee as set by law. The person requesting access to a document does not need to provide the © T H E AU T H O R A N D S T U D E N T L I T T E R AT U R

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document’s registration number or name, but must provide sufficient enough information so that the authority can identify the document. If a government authority denies a request of access to a public document, the individual can appeal the denial to the administrative courts. Parties who are the subjects of the information in the documents have no standing to contest access issues.

2.1. 2 FREEDOM OF THE PRESS

Everyone is guaranteed freedom of expression including the freedom to disseminate information and express views and opinions through speech, publications or depictions under RF 2:1. These rights with respect to non-citizens, however, may be limited by law as stated in article 25 of that same chapter. According to the first article 1:1 of the Freedom of the Press Act, freedom of the press “aims to ensure the free exchange of ideas, free and comprehensive information and free artistic creation.” Freedom of the press also entails the right for everyone to publish in writing thoughts, views and sentiments as well as publish public documents and in general provide information as to any topic. The publication of a writing is to be without any prior government censorship. Any prosecution is to occur only after publication and only through a judicial process. No one is to be sanctioned for the content of a writing unless it “contravenes an express provision of law enacted to preserve public order without suppressing information to the public.” In other words, unlawful censorship both prior to and after publishing is prohibited. This freedom from censorship is balanced by the imposition of liability after publication upon disclosed authors or those persons designated as responsible parties under this act as further discussed below.

Certain statutory limitations with respect to freedom of the press are constitutionally permitted as stated in article 1:12 of the Freedom of the Press Act. These limitations relate to advertisements concerning alcohol, tobacco, health and the environment, as well as the disclosure by professional credit agencies of private information. Legislation regarding limitations as to freedom of the press is also permitted under article 13 with respect to personal data disclosing ethnic origins, color or the similar, political views, religious or philosophical convictions, labor union membership, health, sexual life or orientation, as well as certain types of genetic information.

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An exception was legislated in 1998 to the protections granted under the act with respect to depictions of children in pornographic pictures falling within the definition of a criminal offence. This was amended in 2010 to better protect children up to the age of eighteen years regardless of sexual development as stated in article 14. Commercial messages are also not considered to be covered constitutionally by the right of freedom of speech or expression to the same extent, which is why sanctions can be imposed on commercial actors with respect to certain types of advertising.

Every physical or legal person has the right to produce printed materials as set out in the fourth chapter of the Freedom of Press Act. Any material printed in Sweden is to clearly state the name of the designated responsible party. One copy is to be kept by the responsible party for one year after publication. Copies are to be provided to JK, the police authority and to certain libraries. Everyone has the right to disseminate printed material freely under the sixth chapter of the act with the exception of the public display or unsolicited mailings of pornography, or the dissemination to minors of printed materials that can be seen as having a detrimental or imperiling effect on the morals of youth.

A distinction is made in the act between periodicals and printed materials.

Periodicals published in Sweden according to the Act on Regulations in the Area of Freedom of the Press and Media (lag 1991:1559 med föreskrifter på tryckfrihetsförordningens och yttrandefrihetsgrundlagens områden) may be owned by Swedish citizens or legal persons, resident aliens or foreigners. With respect to the latter two categories, foreign physical persons must either have their residence in Sweden or citizenship from a country within the European Economic Area (“EEA”).5 Foreign legal persons must be formed according to the laws within a EEA country and have their seat within the EEA. Regardless of the nationality of the owners, certificates of no impediment as to publishing have to be obtained prior to a periodical being published in Sweden.

5 The European Economic Area (“EEA”), created in 1994, allows Iceland, Liechtenstein and Norway to participate in the EU internal market without EU membership. In exchange, they are obliged to adopt all EU legislation related to the single market, except laws within the fields of agriculture and fisheries.

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2.1. 3 RIGHT TO ANONYMITY

The name of the author of a work does not need to be disclosed as guaranteed by article 3:1 of the act. This right of anonymity extends to authors as well as to persons who have communicated information to authors, journalists or editors that is printed, as well as a publisher of printed materials that are not periodicals.

This right of anonymity also results in a duty of non-disclosure by responsible parties as to the identities of these persons. Disclosure of the identity of an author or information source is permitted only if the person communicating the information has consented to the disclosure, the information concerns an offence against the Freedom of Press Act, or if disclosure is deemed to be of exceptional significance by a court. It is also incumbent on authorities under article 3:5 to not investigate the source of information that the authority preferred not to be made public except to the extent required to prosecute crimes under the act. Whistleblowing protections are also granted in that authorities are not to retaliate for any disclosures made. Unlawful disclosure of an identity, unlawful intentional investigation of identity or sources or other unlawful measures can result in penal sanctions of up to one-year imprisonment. If anonymity is invoked with respect to publications that are periodicals, the responsible publisher is liable for the lawfulness of the publication. If the author chooses to disclose her identity, the author is then responsible.

2.1.4 DISCLOSURES BY PUBLIC EMPLOYEES

Certain categories of persons are protected under the Freedom of the Press Act in order to insure freedom of expression. Each individual has the right to freely disclose information on any subject for the purpose of making it public in a publication (meddelarfrihet). This concerns information provided to an author, the publisher or editor of an publication, or a media firm. The obverse process is also protected, in that every individual has the right to acquire information in order to disclose it in a publication (anskaffarfrihet).

These freedoms can only be restricted by a constitutional act. They become very sensitive when concerning public employees who disclose information their employers may not want made public. Specific protections are in place in the form of a prohibition against investigating the identity of the person 64

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who disclosed the information (efterforskningsförbud) as well as taking any reprisals against such a person, in essence whistleblowing protections.

2.1. 5 OFFENCES UNDER THE FREEDOM OF PRESS ACT

The counterbalances to the freedoms given in the Freedom of the Press Act are the criminal offences based on misuses of these freedoms as also defined in the same act. Chapter three of the act, while governing the right to anonymity, also includes criminal offenses as to circumventing or abusing the right. For example, the intentional or negligent violation of the duty of confidentiality, attributing authorship despite a request otherwise, responsibility or publishing without consent, investigating privileged whistleblowing disclosures or reprisals as to whistleblowing are criminally sanctioned by fines or up to one year’s imprisonment. The failure to designate responsible parties with respect to publications and periodicals has these same sanctions.

Chapter seven mandates that to be a crime against the freedom of the press, there must be a publication and the offense must be sanctionable by law. An extensive catalogue of criminal offenses is given roughly categorized as crimes against persons and against the state. Included as crimes against a person are unlawful threat, defamation and insult. Crimes against the state include criminal incitement, threatening a folk group, unlawful depictions of sexual violence or force, threatening a public employee, obstruction of justice, riot, crime against certain citizen rights, high treason, abbetting war, espionage, unauthorized access of confidential information, negligence with respect to disclosing confidential information, treason, negligence harming the country, spreading rumors that are a danger to national security, disclosing public information to harm. The sanctions for these offenses are those given in the Penal Code.

Chapter eight sets out the parties that are to be held accountable for the above freedom of the press crimes, based on a distinction between periodicals and other publications. Where the crime involves a publication that is not a periodical, the party responsible is the author if stated as such unless published without the author’s consent. If the publication has several authors, the responsible party is liable. The responsible party is also liable where the author is deceased at the time of the publication. If neither the author or the responsible party is liable, the publisher is then liable. If the publisher is not © T H E AU T H O R A N D S T U D E N T L I T T E R AT U R

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known, then party disseminating the publication will be held accountable for the crime.

If the crime involves a periodical, the responsible party when the periodical is published is liable. If a representative has been reported and acts as publisher, then the representative is responsible. The owner of a periodical is responsible where no certificate has been acquired when the periodical was published. If the owner cannot be determined, the printer at the time of the publishing is then responsible. In the event the printer cannot be established, the party disseminating the periodical is then responsible.

Damages can only be awarded under the Freedom of Press Act for the crimes defined by the act. A claim for damages can be pursued, however, even if the crime is barred by the statute of limitations or otherwise cannot be prosecuted. Offences against freedom of the press as delineated in the act can be tried by a jury, one of the very few types of cases in Sweden in which a jury is used.

2. 2

The Fundamental Law on Freedom of Expression

The Fundamental Law on Freedom of Expression concerns freedom of expression in media other than print. This is the most recent of the constitutional acts, intended to mirror the Freedom of Press Act including those acts seen as offences, simply expanding the media addressed. Everyone is guaranteed the right as against the public authorities to publicly express thoughts, views and sentiments “on sound radio, television and certain similar transmissions, public displays of materials from a database, and in films, video recordings, sound recordings and other technical recordings” in the furtherance of the free exchange of opinions, information and artistic creation under its article 1:1.

The Fundamental Law on Freedom of Expression shares much of the same construction as the Freedom of the Press Act, including the right to expression, the right to anonymity, prohibition against censorship, protection for informers, exclusive liability for designated parties, a list of criminal offences and the use of juries.

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2. 3

I ndividual Rights and the Instrument of Government

The Instrument of Government adopted in 1974 to replace the one of 1809 was to embody the constitutional changes that had successively occurred during that interim. The 1809 Instrument of Government had long since failed to reflect the realities of Swedish constitutional law. This discrepancy between the reality of the political situation and the marginalization of the outdated Instrument of Government is viewed by some as giving rise to a sort of “anti-constitutionalism.” The constitution did not and should not reign in popular sovereignty. Power had been transferred from the King to the Parliament decades previously absent any constitutional basis in a manner inconsistent with the 1809 Instrument of Government.

A second departure consciously taken from the 1809 Instrument of Government was the decision to change the balance of political power from that of separation of power to a separation of function. Parliament is to be the sole legislator as seen from the portal paragraph of the 1974 Instrument of Government: “All public power in Sweden emanates from the people.”

As a result of this focus on majoritarianism, a comparatively weak court system was created with only limited powers. This is also clear from the fact that the third branch of political power, after the legislative and executive branches, is not generally perceived of as the judicial branch in Sweden, but rather the press.

Article 16 of the 1809 Instrument of Government had addressed certain fundamental rights and freedoms, proclaiming that the King should: [M]aintain and further justice and truth, [P]revent and forbid inequity and injustice, [N]ot deprive nor allow any person to be deprived of life, honor, personal liberty or well-being without a lawful trial or sentence, and [That] no person [should] be deprived of property, whether chattels or real, without a warrant and judgment in the manner as prescribed by Swedish law, [T]hat no person’s peace should be disturbed in his home, [T]hat no person should be extradited from one place to another,

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[T]hat no person should be forced to act in violation of his conscience but rather be protected and able to freely exercise his religion as long as he did not disturb the public peace or cause public disturbance.

The King was also to ensure that every person sentenced was judged by a court having jurisdiction over that person. This article, and the rights therein contained, had roots extending back to Magnus Eriksson’s 1319 Letter (Frihetsbrev) of Proclamation, evidencing a fairly unbroken constitutional tradition as to certain individual rights of over six hundred years.

2. 3.1  THE 1974 INSTRUMENT OF GOVERNMENT

A parliamentary committee was appointed in 1938 to oversee article 16, but its findings were not acted upon in the direct aftermath of World War II. A new committee was charged with modernizing the constitution as a whole, but its 1963 proposal including a separate chapter on fundamental rights was criticized. A new committee was formed in 1966, first presenting a proposal that did not include a separate chapter on fundamental rights and freedoms. The predominant political view, much in line with a communitarian approach to law, was that such rights and freedoms were unnecessary in a welfare state. This omission was also criticized, and the Government was forced to include a separate chapter addressing individual rights. The draft was adopted in 1974 and the rights expanded already by 1976.

The role of the rights as cataloged in chapter two, however, was greatly debated in certain circles. Those legal scholars in favor of a weak judicial system argued that chapter two rights should be more of a policy declaration as were certain of the rights in chapter one, and not meant to serve as any legal basis for a remedy. Instead, the chapter two rights should be deemed to serve as guidelines for the Parliament in its legislative work, this view giving precedence to the principles of parliamentary rule and popular sovereignty.

Others envisioned chapter two rights as created for the protection of individuals and should be at their disposal. These different views are reflected in the legislative preparatory documents for the 1974 Instrument of Government. The emphasis in chapter two as to limiting the rights therein contained embodies the compromise finally reached. The absence in general of any separation of powers or any restrictions on political power, 68

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for example in the form of judicial review, also reinforces this compromise.

This dichotomy, however, is still in place as exemplified by the different dignities given the first two chapters of the Instrument of Government with the majority of the first chapter viewed as purely policy statements, and the second becoming a firmer base for rights that can be asserted by individuals.

This greater recognition of human rights that can be traced in Swedish law is arguably due to the requirements of European law. In the same vein, significant amendments were made in 2010, for the purposes of modernizing the Instrument of Government, as well as simplifying its language and making it in general more accessible. The chapter two rights were amended for the purpose of further strengthening and clarifying the individual’s protections against violations of freedoms and rights.

Rights generally can be expressed as either positive or negative rights.6 Under the theory of positive and negative rights, a negative right is a right not to be subjected to an action by another human being, or group of individuals, such as a state, usually in the form of abuse or coercion. A positive right is a right to be provided with something through the action of another person or the state. In theory a negative right forbids certain actions, while a positive right requires certain actions. The first chapter of the Instrument of Government sets out several positive rights, establishing that the public power is to be exercised with respect to the equal worth of all persons and for the freedom and dignity of the individual. It goes on to state that public authority should particularly safeguard the rights to work, housing and education, as well as promote social welfare, security and a good living environment with a particularly focus on environmental sustainability. Democracy is to guide the community, and each individual is to be able to participate in society with the right to not be unlawfully discriminated against on the basis of sex, color, national or ethnic origins, language, religion, disability, sexual orientation, age or other circumstances.

6 This designation between positive and negative rights is invoked in public international law under a three generational theory as first proposed by Karel Vasak in the 1970’s, based loosely on the French constitutional principles of liberty, equality and fraternity. First generation rights are traditional or negative rights, such as freedom of the press. Second generation rights are positive rights in that the state has to act to secure them, such as a right to education or housing. The third generation of rights is group rights, such as the right to recognition of a language or a cultural heritage.

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The rights of children are to be respected. The Sami people7 specifically, as well as other ethnic, linguistic and/or religious minorities, are to be given the opportunity to retain and develop their own cultures and communities.

These individual rights as stated in the first chapter, however, are explicitly not viewed as binding with the exception of the equal treatment principle and the protection of local government.8 2. 3. 2 CHAPTER TWO RIGHTS

The rights and freedoms granted in chapter two concern the relationship between the individual and the state, with the exception of RF 2:14 as discussed at the end of this section found by the Labor Court to be applicable horizontally between the social partners. The applicability of the other chapter two rights as between two private parties, referred to in German as Drittwirkung, has not yet been resolved by the Swedish courts.

The articles in chapter two can be seen as in two main groupings: the individual rights of Swedish citizens and non-citizens and the restrictions of the rights of Swedish citizens and non-citizens. The rights as granted under chapter two can be loosely arranged within four categories: intellectual freedoms, physical freedoms, legal rights, and property rights.

7 This is a strengthening under the 2010 amendments from the previous wording of “ought to be given.” For information about the Sami people in English, see the Sami Information Center at eng.samer.se. The Sami Parliament (Sametinget) website is at sametinget.se, the Swedish Sami National Organization (“SSR”) at sapmi.se and the Sami party at samerna.se.

8 See Joakim Nergelius, Constitutional Law in Michael Bogdan (ed.), Swedish Legal System (Norstedts Juridik 2010) at 42.

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Instrument of Government Chapter Two Rights (Regeringsform 1974:152, “RF”).

I. Individual Rights Intellectual Freedom RF 2:1(1) Freedom of Expression* RF 2:1(2) Freedom of Information* RF 2:1(3) Freedom of Assembly* RF 2:1(4) Freedom of Demonstration*

RF 2:1(5) Freedom of Association* RF 2:1(6) Freedom of Religion RF 2:18 Right to a Public Primary Education, Academic Freedom

Physical Freedoms RF 2:2 Freedom from Coercion as to Divulging Opinions RF 2:3 Freedom from being Registered without Consent Based only on Political Opinion** RF 2:4 Prohibition against the Death Penalty RF 2:5 Prohibition against Corporal Punishment, Torture and Medical Procedures to Obtain Information

RF 2:6 Prohibition against Searches of Persons, Houses or Correspondence* RF 2:7 Prohibition against Deportation** RF 2:8 Prohibition against Unlawful Incarceration* and Right to Move Freely**

Legal Rights RF 2:9 Right to a Judicial Hearing without Delay as to Incarceration RF 2:10 Prohibition as to Retroactive Application of Penal and Tax Laws RF 2:11 Prohibition as to Courts Established only for One Case. Judicial Proceedings are to be Public (*) RF 2:12 Prohibition as to Laws that Discriminate on the Basis of Ethnic Origins, Color or Similar Circumstance, or Sexual Orientation

RF 2:13 Prohibition as to Laws that Discriminate on the Basis of Sex unless to achieve equality or with respect to the military RF 2:19 Prohibition as to Any Law in Conflict with the European Convention.

Property Rights RF 2:14 Right to Take Industrial Action RF 2:15 Right to Compensation and Lawful Expropriation

RF 2:16 Right to intellectual property of ­authors, artists and photographers RF 2:17 Limitations in Commerce only Lawful to Protect the Public. Sami’s right to reindeer herding also protected.

II. Restrictions as to Individual Rights RF 2:20 Rights that Can Be Restricted by Law* RF 2:23 Restrictions as to Freedom of Expression and to Information

RF 2:24 Restrictions as to Freedom of Assembly and Demonstration

III. Individual Rights and Non-Swedish Citizens RF 2:25 Restricting the Rights of Non-Swedish Citizens. * Those rights that can be limited by law under RF 2:25 as discussed below with respect to non-Swedish citizens. ** Those rights accruing only to Swedish citizens.

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PHOTO: JEFF DUNN

Laura Carlson, J.D. (School of Law, Stockholm University), Master of Laws (School of Law, Uppsala University), J.D. (School of Law, Minnesota University), B.A. (Carleton College), is a professor of private law at the Department of Law, Stockholm University. She has authored several books, including American Business Law (2004), Searching for Equality (2007), An Introduction to Swedish Property Law (2008), Workers, Collectivism and the Law – Grappling with Democracy (2017) and co-authored Swedish Labour and Employment Law (2008).

THE FUNDAMENTALS OF SWEDISH LAW The Fundamentals of Swedish Law offers foreign readers an overview and understanding of the most important aspects of the law and legal system in Sweden, from the legal institutions to more specific topics such as contract law, tort law and family law. These presentations are not exhaustive but rather meant to give the reader a sufficient enough understanding to be somewhat orientated in the Swedish legal system.

The book is written for non-Swedish lawyers faced with specific legal issues involving Swedish law. It is also addressed to foreign law students in need of an overview of the Swedish legal system in order to help them in their further studies at Swedish universities.

This third edition takes up many of the legislative changes that have recently been adopted due to the requirements of EU membership and law. Most recent and significant include the amendments to the Tort Act to allow for damages of violations of the European Convention, the significant amendments to the constitutional Freedom of the Press Act, as well as the adoption of the 2017 Local Government Act and Administrative Procedures Act.

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