01 November 2022

The Swedish Change of Government

Will Swedish Courts Start Asking the EU Court of Justice More Often?

With the current turbulences of British politics, Sweden may come across as a quiet Nordic country where not much is happening. Surprisingly little has been written about the Swedish elections from a legal perspective. On September 11, 2022, Swedes voted for a center-rightwing coalition with support from the far right. The purpose of this blog post is to discuss whether the Swedish election is as dangerous as it has been portrayed or if it (simultaneously) represents a mainstreaming of Swedish laws with some of the EU legal framework and is perhaps likely to activate Swedish courts to refer to EU courts more often.

The exact setup of the new government remained unclear until a week ago. The newly formed government turned out to consist of a coalition consisting of the Moderate party, the Christian Democrats, and the Liberals, supported by the far-right Swedish Democrats. The unprecedented success of the right-wing populist Swedish Democrats, who carried 20,54 % of the votes and became the second largest party (the Social Democrats are still the largest party at 30,33 %), is puzzling for many people and produced alarming headlines abroad. Trying to overcome its neo-Nazi heritage, the Swedish Democrats have, in the last decades, moved to presenting itself as a mainstream party. This has resulted in their success in siphoning votes away from both the labor party and the mainstream conservative party. The Swedish Democrats did not get any ministerial posts, which was a very important arrangement for especially the Liberal party to remain within the coalition, but as they are part of the ruling bloc, they will have a larger influence than ever. The new PM is Ulf Kristersson, leader of the Moderate party (who carried 19,10 % in the election).

Crunchpoint Migration: The New Political Program and EU Law

From both legal and political perspectives, it is difficult to argue that Sweden does not face serious problems to which the electorate responded. Despite pressing issues like climate change, inflation, energy or security, the electorate particularly responded to rampant gang-related violence, in particular shootings that also killed bystanders, have raised to unprecedented levels and the politicians were seen as incompetent in facing them. The previous government presented precious little social strategies, funds for the police and social workers which were not forthcoming. All political parties across the spectrum seem to have agreed on this. Thus, the agenda became dominated by topics that were traditionally owned by right-wing parties. Another major question was the growing segregation and inefficient integration politics. Many people in segregated areas feel alienated from Swedish society, rarely learn the language, and have difficulties getting jobs, which results in greater reliance on state subsidies for livelihood. Both the right-wing bloc and the left-wing bloc used similar rhetoric: integration must work better in getting people into the economic and social systems.

One of the more controversial questions is the new government’s suggestion to insert new police controls to stop the import of weapons in the fight against the widespread problem of organized crime and shootings across Sweden, the so-called ‘Tidöavtalet Agreement’ for Sweden. It was asked whether such measures run afoul of EU free movement rules. From an EU law perspective, checks are allowed insofar as it can be shown that their function is to safeguard public security to fight criminality, i.e. curbing weapons smuggling or entrance of dangerous individuals, and as long as these checks are proportionate, non-discriminatory, and not made permanent (on derogations see e.g. article 45 TFEU and articles 26-27 Citizenship Directive). The Schengen Borders Code states that “competent national authorities can carry out police checks at internal borders and in border areas, provided that such checks are not equivalent to border checks”. Additionally, perhaps it should be mentioned that the EU Commission currently suggested to amend the code in light of, inter alia, the problems during the pandemic with closed borders. The Commission also suggests extensive use of monitoring and surveillance technologies. In any case, although we may be very unhappy about a nationalistic party winning more ground in Sweden, it is not correct, from an EU legal perspective to say that we cannot criminalize gang related criminality and organized crime as there is already an obligation to do so according to EU law. Further suggestions by the new government are to lower the age of criminal liability from current age of 15 to 13 in order to target the organized crime related recruitments of younger people. This is nothing that EU law would arguably have much to say about since it is an internal matter. There are several Member States where the criminal liability age is lower than 15 (the most common age is 14 with the exception of Ireland, Belgium and the Netherlands where it is 12, whereas in the UK and Switzerland, for example, it is 10). Then it is of course yet another question whether this is the right road to take.

The new government also wants to restrict irregular migration and establish passport controls. While there are possibilities to carry out checks, especially of third country nationals, any such measure must follow the Schengen Border Code and the EU Charter.

Another suggestion from the Swedish Democrats that has found its way into the mainstream politics of the conservatives and center parties wants to limit asylum seekers due to the massive inflow of people during the “crisis” of 2015. This is also a matter of international law and EU asylum law and solidarity. If people have a right to seek asylum they cannot be refused at the Swedish border. It will be interesting to see how the new government will fix these problems that the last one has failed to face; especially as it promises to do without resorting to general anti-immigration populism (which is reflected in the open conflict between the Liberals and the Swedish Democrats, now part of the same coalition).

How Right-Wing Will Sweden Be?

Climate law has been a bit of a bombshell in Swedish politics. A recent public speech by a Swedish Democrat politician asserted that climate change has no scientific grounding and that legislating for the environment is like joining a religion. She was criticized by both the left and the right, but no one in the new government publicly commented or condemned her. With the Russian war in Ukraine and the global energy crisis and soaring food prices, the question of green energy and solidarity should be high up on the agenda, responding to the EU Treaty Article 194 TFEU, and EU policy agendas. Sweden has shut down many of its nuclear energy plants and now is desperate to build new ones. Emergency planning (such as the situation with the war in Ukraine and the energy crisis in Europe) was never on the agenda. One may ask if this is really what we mean by green energy and through what means sustainable energy is best achieved.

The outgoing Social Democrats party had to deal with some of the major challenges in Europe and the world in recent years; immigration, pandemic, climate crisis, and now the energy crisis in Europe, the war in Ukraine, and Sweden’s application to join NATO. Still, nothing of this mattered much in the elections campaign. Instead, the discussion was almost exclusively about internal politics, especially the high rates of crime. There is a lot of speculation now about what will happen due to the power shift. What can explain the success of a far-right party with some of their early members with roots in neo-Nazism in the 1990s? To some extent the other parties may have to blame themselves: for example, for some parties, the previous elections of 2018 were only about keeping the far right out. To some extent, this was the same in 2022. There was, and still is, a lack of genuine political debate about the matters at stake. Regardless of what one thinks of the Swedish far right, one may ask if it is a democratic arrangement to openly disapprove of them before giving the new coalition a chance to show how it will face the abovementioned set of challenges. However, if we look at Hungary or Poland or the Brexit in the UK, right wing parties can create serious difficulties for the EU law project and the rule of law (as would the far left). In any case, tough talk from the opposition seats is different than effectively and democratically facing the obvious challenges of Swedish society.

Some left-wing parties warn that the Swedish Democrats might turn Sweden into a totalitarian, anti-immigration, tough-on-crime, populist and insular country. Indeed, the above-mentioned recent coalition agreement Tidöavtalet (“An Agreement for Sweden”) allocates the Swedish Democrats a rather broad influence. It also reflects their mixture of a far-right party that is tough on crime, anti-immigration and nationalistic, whilst at the same time being a labor party. For example, they did not want to lower the benefits for unemployment which was one of the main arguments that the Moderate Party was pushing for. While some of their policies are nastily nationalistic and anti-immigration, many other suggestions are mainstream except for their suggested policy on asylum seekers which seems unconstitutional. Moreover, they have suggested that in order to get Swedish citizenship one should speak a good level of Swedish and know something about the country. This is a policy that originally came from the Liberals and was considered a racist proposal by left-wing parties. That most parties now support this idea shows how the political landscape in Sweden has changed. Moreover, the Swedish Democrats’ EU parliamentarian has refused to condemn Orbán’s Hungary for breaching EU democratic values, which sounds just plainly ignorant on the part of the Swedish Democrats, who also seems to have some complicated relation with Russia (just like the far-left party does). Both the far-right and the far-left were slow in condemning the Russian invasion of Ukraine and supporting EU sanctions against Russia.

How Will the Courts Respond?

The most interesting question for EU constitutional lawyers may be: if the new government holds together, and if we start seeing an even more nationalistic agenda in breach of EU law and fundamental rights, will Swedish courts start asking the EU Court? Swedish courts are famous for seldomly referring questions through the institute of preliminary rulings to the EU Court. Specifically, will Swedish courts start acting as guardians of EU rights or will they continue their low-key profile where they rather not rule on what they consider is best dealt with by the Government? This would bring Sweden into line with many other EU Member States: National courts would start asking the EU Court more often, meaning in turn that the form of political constitutionalism without much of judicial review that has so far dominated the Swedish judiciary would belong to the past.

The future of the new government navigating the current challenges at home is dependent on how it manages to push for its reforms while respecting EU fundamental rights and values. Finally, Sweden will host the Presidency of the Council at the end of the year. Hopefully, Swedish politicians will look outside Swedish internal matters and focus on what matters for Europe now.

SUGGESTED CITATION  Herlin-Karnell, Ester: The Swedish Change of Government: Will Swedish Courts Start Asking the EU Court of Justice More Often?, VerfBlog, 2022/11/01, https://verfassungsblog.de/the-swedish-change-of-government/, DOI: 10.17176/20221101-215936-0.

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