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Konsekvenser av att EU:s institutioner genom direkt tillämplig sekundärlagstiftning begränsar rätten att ta del av allmänna handlingar i Sverige

Journal article
Authors Allison Östlund
Jonas Hallberg
Published in Förvaltningsrättslig Tidskrift
Issue 4
Pages 457-478
ISSN 0015-8585
Publication year 2013
Published at
Pages 457-478
Language sv
Links www.forvaltningsrattslig.org/Journa...
https://gup.ub.gu.se/file/207443
Subject categories European law, Public law, Constitutional law, Administrative law, Law

Abstract

The article takes as its starting point the Swedish general principle of transparency and open access to public records. The Declaration on transparency and open government, made by Sweden as part of its Accession Treaty, at the time signaled to the remaining Community the importance of transparent government as forming part of Swedish constitutional identity. Read together, however, with domestic constitutional limitations of the valid transfer of legislative power to the EU, the Declaration had the potential of activating avenues for derogating from EU law. While Swedish input on transparency policy has on many levels promoted unified steps in the EU towards increased public access within the latter’s institutional framework, sector-specific secondary law of the EU sometimes opposes transparency. The article describes how such secondary legislation has introduced presumptions against disclosure, posing immediate problems for Swedish courts when presented with directly applicable Regulations overturning the firm presumption for disclosure. The article invites Swedish courts to make use of their unique power of review (enjoyed by all court instances) in order to revisit the limits to the lawful transfer of powers to the EU. The article discusses various avenues under EU law for doing so, including making a preliminary reference on the validity of EU acts instating directly applicable presumptions of non-disclosure. The CJEU’s ruling would, in response, be capable of providing guidelines not only for the national judge, but also for the legislator, towards resolving this constitutional dilemma.

Page Manager: Webmaster|Last update: 9/11/2012
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