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Nachrichten, Termine, Experten
Nachrichten, Termine, Experten
EC law needs to be clearer and easier to predict. At the same time, Swedish lawyers are reluctant to use EC legal methods, which can lead to incorrect applications of EC law at the national level. This claim is made by Jörgen Hettne, a doctoral candidate at the Department of Law, Stockholm University, in his dissertation titled Rättsprinciper som styrmedel - Allmänna rättsprinciper i EU:s domstol (Legal Principles as Policy Instruments ¬General Principles of Law in the European Court of Justice).
EC law has been developed to a great extent on the basis of general principles of Law that are recognized by the member states. In certain cases these general legal principles differ somewhat from national legal principles. This is the case, for instance, with the principle of proportionality -¬ that a measure should not be more far-reaching than necessary for the purpose at hand. In Sweden this principle was previously living a waning existence, largely being applied only in criminal law, whereas in EC law it applies to all areas. Another general legal principle in EC law is the ban on age discrimination. This legal principle has yet to be implemented in Sweden, and there is considerable uncertainty about what rules apply.
The general legal principles of EC law are not written in any legal text. This is a problem, according to Jörgen Hettne.
"The lack of codification makes it difficult to predict decisions of the European Court of Justice, which is a threat to legal certainty. Member states need to get together and incorporate these general legal principles in written law. To some extent this will happen if the Lisbon Treaty enters into force," he says.
These general legal principles have guided the decisions by the European Court of Justice regarding the Swedish monopolies.
Jörgen Hettne demonstrates how important these general legal principles were when the monopoly for retailing liquor in Sweden, Systembolaget, was accepted by the European Court of Justice. According to EC law, the commercial activities of a state monopoly must be transparent so that other actors on the market can ensure that no discrimination occurs. Just prior to Sweden's joining the EU, Sweden took pains to increase the transparency of Systembolaget.
"The advocate general applied an economic approach and wanted to abolish the monopoly. The European Court of Justice, on the other hand, checked to see whether the monopoly satisfied the requirements for non-discrimination and transparency, and we were allowed to keep the monopoly," explains Jörgen Hettne.
As he sees it, there is an unwillingness among Swedish lawyers to use a different legal method than that dictated by the Swedish legal culture, and this reluctance is more pronounced than in other member countries. Swedish lawyers tend to base their decisions in cases of EC law on Swedish law, which is seen, on the one hand, in a tendency to avoid expressing arguments based on fundamental rules and principles of EC law and, on the other hand, in not asking for preliminary rulings from the European Court of Justice. Hettne maintains that this can lead to unfortunate consequences, and he advocates better and more comprehensive training in EC law for Swedish lawyers.
"By not considering these general legal principles, Swedish lawyers run the risk of overemphasizing the letter of the law when an EU directive is to be implemented in Swedish law," says Jörgen Hettne.
Jörgen Hettne is a researcher at the Swedish Institute for European Policy Studies (SIEPS). On commission from the Swedish Minister for Trade, he is presently in charge of an inquiry regarding how the fundamental principles of the EU single market could have a greater impact in Sweden. He has previously served as legal secretary at the Court of First Instance of the European Communities and as an legal adviser on EC law at the Ministry for Foreign Affairs.
Jörgen Hettne can be reached at cell phone: +46 (0)73 916 08 97 or jorgen.hettne@sieps.se
A portrait is available at: http://www.juridicum.su.se/jurweb/jorgen_hettne1.jpg and at: http://www.juridicum.su.se/jurweb/jorgen_hettne2.jpg
Jörgen Hettne
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Jörgen Hettne
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