General legal framework

• Author: Lappalainen, Paul
• Pages: 16-16

16

1 GENERAL LEGAL FRAMEWORK

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

difference.

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

individual’.