General legal framework

AuthorLappalainen, Paul
Constitutional provisions on protection against discrimination and the promotion
of equality
The Constitution of Sweden consists of four different documents. The 1975 Instrument of
Government contains the provisions that are most relevant in this context: Chapter 1
Section 2, Cha pter 2 Sections 12-13 and Chapter 12 Section 5. Ch apter 2, Section 19 of
the Instrument of Government is also important, as it incorporates the European
Convention on Human Rights (ECHR) and its discrimination rules.
Chapter 1, Section 2 of the Instrument of Government contains generally formulated goals
concerning equal opportunities and non-discrimination.40 All the grounds of the directives
are covered, but as these are only policy goals, they are not directly applicable.
Chapter 2, Section 12 of the Instrument of Government prohibits laws or other provisions
that entail discrimin ation in relation to those who belong to a minority group due to
ethnicity, colour or other similar circumstances or du e to sexual orientation. Section 13
prohibits laws or other provisions that entail di scrimination due to sex, while at the same
time creating an exception fo r positive action as well as concerning military service. It is
not possible t o obtain dam ages based on a violation of these two sections alone. Their
importance lies in the fact that laws and other provisions t hat are discriminatory could be
set aside by the courts.
Chapter 12, Section 5 is an instruction to the state to use only objec tive crit eria wh en
hiring employees. The s ame provision is set out in Section 4 of the Pu blic Employee Act
(1974:269). Some state appointments may be appealed to a board, in which case
discrimination can be addressed on the basis of these two pieces of legislation. This part
of the Instrument of Government has not been applied without Section 4 of the Public
Employee Act being applied as well. This rule thus effectively covers only some state
employment relations, although it applies to all grounds in the directive .
On questions of direct applicability, the traditional answer in Swedish legal culture has been
that the Constitution is generally not directly a pplicable and for a long time constitutional
arguments were looked at with considerable scepticism. In 1975 a new Instrument of
Government was adopted to replace the one from 1809. At the same time, judicial review
by the courts was extremely limited in that an act of Parliament could only be s et aside if
it was clearly unconstitutional. However, this is changing. One reason is membership of
the EU and the changes it led to in the Constitution (e.g. Chapter 1, Section 10 and Chapter
10, Section 6). Another important change was the introduction in 1994 of Chapter 2,
Section 19, stating that courts should set aside p arliamentary acts that violate the ECHR.
In addition, there was the constitutional reform in 2010 that removed the requirement that
acts of Parliament could be declared unco nstitutional only if the act wa s clearly
unconstitutional. Thus far, it is hard to say that the 2010 change has made a major
The protection from discrimination that stems from the Instrument of Government alone
is not sufficient for fulfilling the requirements of the directives. This appli es to the areas
covered as well as the grounds protected.
Nevertheless, at least in principle, other than Chapter 1, Section 2, these various provisions
are directly applicable and can be enforced against the state, although they cannot be
enforced against private individuals.
40 Instrument of Government (1975). Chapter 1, Section 2(5), sentence 2 states: ‘The public institutions shall
combat discrimination of persons on grounds of gender, colour, national or ethnic origin, linguistic or
religious affiliation, functional disability, sexual orientation, age or other circumstance affecting the

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