Sweden

CRIN would like to express our profound gratitude to Anders Bengtsson for his insightful comments on a draft of this report. CRIN also sent a draft version to the State for feedback and any comments received were taken into account in finalising the report. Any errors or inaccuracies remaining in the report are CRIN’s.

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I. National legal protections

A. Are environmental rights protected within the national constitution?

The Constitution of Sweden consists of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act and the Fundamental Law on Freedom of Expression.1

There is no environmental right as such in these laws. However, Chapter 1 Section 2 of the Instrument of Government prescribes some objective ambitions: “The public institutions shall promote sustainable development leading to a good environment for present and future generations.” This provision is regarded as a goal-setting section and can be said to have the function of requiring the public – courts, authorities and other regulatory bodies – to positively work towards the realisation of the stated objectives as far as possible.2

During the preparatory work on the Instrument of Government, the government argued that it is not possible to include any social rights in the Constitution of Sweden as a constitutional right, since such legal rules cannot have any content other than that they will be an expression of the society’s endeavour. Hence, the question of and the extent to which the public lives up to the stated ambitions in the provision is primarily subject to political, and not judicial, control.3

As a reason for the introduction of the third paragraph to the section in 2002, the government argued that Sweden should be a pioneer in the protection of the environment. The wording in the paragraph also relates to the Environmental Code’s4 goal setting provision in Chapter 1, Section 1, which describes the purpose of the Swedish Environmental Code (the “Code”).

Public access to the natural environment enjoys explicit constitutional protection, according to Chapter 2, Section 15 paragraph 5 of the Instrument of Government. The provision may be invoked directly in administrative or judicial procedures, but will normally only serve as support for interpreting lower level legislation. For Swedish citizens, the Right of Public Access to the natural environment is part of their cultural heritage, with mediaeval roots. Its origins go back in part to provincial laws and customs dating from the Middle Ages,5 and its limitations are set forth in criminal law, e.g. infliction of damage and violation of the domiciliary peace. Chapter 2 Section 15 further establishes the right to property.6

Protection of human health and the environment thus count as legitimate interests that may provide grounds for limits or exceptions to other rights, mainly property rights. The practical effect of this is that environmental regulation through permit conditions and public notices as the general rule is possible, without having to compensate the operator.7 Two judgments from the Land and Environment Court of Appeal on compensation under Chapter 31 of the Environmental Code for a prohibition to log areas of forests containing vulnerable species may illustrate the legal situation.8 In the first case the court granted economic compensation but not in the second, then reasoning that in that case the prohibition was just following what the general rules of consideration in Chapter 2 of the Environmental code required.9

Sweden has a long tradition of open court procedures and access to information and documents kept by courts and other public institutions. Access to information is provided for by the Freedom of the Press Act but this right can be restricted by provisions in the Public Access to Information and Secrecy Act. In June 1998, Sweden signed the UN Convention on Access to Information, Public Participation in Decision-making and Access to Justice in Environmental Matters (the “Aarhus Convention”). The Aarhus Convention, adopted within the framework of the UN Economic Commission for Europe (UN / ECE), entered into force in 2001 and was ratified by Sweden in 2005.10 The Aarhus Convention protects every person’s right to live in an environment adequate to his or her health and well-being.11

Sweden also ratified the United Nations Convention on the Rights of the Child (CRC) on 29 June 1990, which was adopted into law in 2020.12 Treaties do not form part of national law unless they have been incorporated by an act of Parliament, but legislation is to be interpreted in light of international obligations.13 Since the entry of Sweden into the European Union (EU), Swedish courts have been progressively more willing to adhere to Treaties and Conventions to which Sweden is a party. Indeed, the Aarhus Convention is considered part of the domestic legislation, given that both Sweden and the EU are parties to it, and that the Court of Justice of the European Union has taken a strict approach regarding the obligations stemming from this Convention to Member States.

B. Have constitutional rights protections been applied by national courts with regards to environmental issues?

Swedish Courts have been traditionally reluctant to refer to the Constitution or to treaties, though they have progressively been referring to the European Convention on Human Rights and the EU Charter of Fundamental Rights in cases concerning environmental issues. In doing so, courts have allowed NGOs and individuals to challenge authorities’ environmental decisions when the Swedish legislation gave no right to appeal or even had an express prohibition to challenge the decision concerned.14

C. Has the concept of intergenerational equity been applied within national courts? If yes, in what circumstances?

The concept of intergenerational equity is acknowledged under the law as being part of the wider concept of sustainable development.15 In the preparatory work on the Environmental Code, it is stated that the provisions are to be applied in ways that ensure the fulfilment of the Code’s purpose, which is to promote sustainable development.16 Consequently, legal practitioners often seek guidance on the purpose of the law, when interpreting different provisions. As for national courts, referrals to the purpose of promoting sustainable development are commonly seen in the reasoning parts of the decisions. Thus, intergenerational equity is, as being part of the wider concept of sustainable development, indirectly applied continuously within Swedish national courts.17 Additionally, intergenerational equity has occasionally been applied explicitly.18

D. What legislation is in place to regulate environmental protection? Are there any proposals for legal reforms currently under review in the national legislature?

The Environmental Code:

This is the main legislation in force, a framework regulation containing 32 chapters and almost 500 sections. The Environmental Code was adopted in 1998 and entered into force on 1 January 1999. The purpose of the Code is to promote sustainable development, and its scope is directly linked to this promotion.19 The Code is applicable to all persons and operators who undertake activities or measures which could have an impact on the fulfilment of the objectives of the Code. It therefore concerns all types of measures and operations that may be of importance to those interests the Code is intended to protect, regardless of whether they are part of a private individual’s daily life or are some form of business activity. The scope of the Code is also the basis that decides what types of environmental issues can be examined in a court of law.20 The Code only covers the most fundamental environmental rules, and provisions that are more specific can be found in bylaws under the Code, regulations from the government or national governmental authorities, but also in other legislation that implements environmental demands from the EU, e.g. the Planning and Buildings Act (2010:900), the Forestry Act (1979:429) and the Hunting Act (1987:259).

The Environmental Code in Chapter 1, Article 1, establishes that the purpose of the Code is to promote sustainable development “which will assure a healthy and sound environment for present and future generations”.

Special legislation:

In regards to special environmental protection legislation, with a specific aim to protect children, the Act on Safety of Toys (“AST”)21 can be mentioned. The AST, together with regulation (2001:703)22 and the Swedish Chemicals Agency’s23 regulation, implements the EU directive 2009/48/EC in order to protect children from toxic substances in toys provided in the market and in public activities. A general requirement is that chemical substances in toys must not pose any risk to human health.24

Proposals for legal reforms:

On 25 May 2020, the Government announced that a special investigator was assigned to decide if the Species Protection Regulation25, a regulation passed under the Code, should be amended in order to better protect endangered species.26 The investigator delivered his report to the Government on 10 June 2021.27

In August 2020 the Government assigned a special investigator to revise the current permit-system for activities related to the environment. The report was delivered to the Government on 14 June 2022.28

E. Is there any specific national policy addressing childhood exposure to toxic substances? If so, what is considered a safe level of exposure and what is the process for determining safe levels of exposure?

The environmental objectives adopted by the Swedish Parliament include a generational goal and 16 environmental quality objectives, which include the objective to “A non-toxic environment”.29 This policy objective calls to continue developing measures to further limit the spread of dangerous substances, which may include domestic regulation, international agreements and voluntary measures. The impact of certain activities in the realisation of Sweden’s environmental goals is often addressed in EIAs and in environmental permit applications.

However, Sweden has not adopted a specific national policy addressing childhood exposure to toxic substances. The Swedish Chemicals Agency (“SCA”) has however, during the last 10 years, worked on a project with an aim to create an environment free from hazardous chemicals, with a special focus on protecting children from hazardous chemicals and substances in their everyday life. As a part of the project, the SCA has been working to identify and limit the most hazardous substances through existing regulation, which reduces loading exposure and related health risks. One example of this is the above-mentioned AST. The SCA has influenced the act by introducing stricter migration limit values in toys for lead, bisphenol A and phenol, which came into force in Autumn 2018. In Autumn 2019, the limit value for hexavalent chromium in depreciated toy material was lowered. Decisions have also been taken to lower the limit values for formaldehyde, partly in different material types in toys for children under three years and partly in toys intended to be put in the mouth. The limit value for aluminium has also been lowered and applies to all toys.30 The SCA further supervises and checks that the rules are followed. Among other things, the SCA checks that the toys do not contain prohibited chemicals and substances and require companies to remedy deficiencies or withdraw products from the market. The SCA publishes audit reports on its website.31

The Swedish Food Agency32 has adopted recommendations and regulations on the consumption of food and drinking. For example, it recommends that children, adolescents and people who can become pregnant, or are pregnant, or are breastfeeding limit their consumption of contaminated fish, such as Baltic Sea herring, to no more than two to three times a year. The recommendation for other consumers is not to consume it more than once a week.

F. Is the country equipped with pollutant release and transfer registers? If yes, do these registers take into account child specific factors regarding the substances for which data is gathered and the type of data generated?

As a part of its obligation under the Aarhus Convention and its Protocol on Pollutant Release and Transfer Register, Sweden has adopted a pollutant release and transfer register which is managed by the Environmental Protection Agency.33

The Swedish pollutant release and transfer register is a public register available for everyone and contains details of emissions from approximately 1260 companies in Sweden that carry out environmentally hazardous activities and who have a reporting obligation according to the European Regulation (EC) No 166/2006.34

However, the Swedish pollutant release and transfer register does not take into account child specific factors regarding the substances for which data is gathered and the type of data generated.

G. Does the State assert extra-territorial jurisdiction for any environmental issues?

Environmental crimes are regulated in Chapter 29 of the Environmental Code. The penalty for the most types of crimes in the Chapter is a fine or imprisonment for a maximum of two years. Therefore, if Sweden shall assert extra-territorial jurisdiction for environmental crimes, the committed act must be subject to responsibility under the law of the place where it took place as well as in Chapter 29 of the Swedish Environmental Code.

However, Sweden does not assert extra-territorial jurisdiction for environmental actions that may lead to civil liability.

Criminal offences

Crimes that invoke extra-territorial jurisdiction are primarily regulated in Chapter 2 Section 2 and 3 of the Penal Code.35 Section 2 states that an offence committed abroad is judged under Swedish law and court if the offence was committed:

  • by a Swedish citizen or an alien habitually resident in Sweden;
  • by an alien not habitually resident in Sweden, who after the offence, has become a Swedish citizen or become habitually resident in this country, or who is a Danish, Finnish, Icelandic or Norwegian citizen and is in Sweden;
  • by any other alien who is in Sweden and the offence can, under Swedish law, result in imprisonment for more than six months; or in the exercise of the business activities of a Swedish company and the offence is giving of a bribe, gross giving of a bribe or trading in influence under Chapter 10, Section 5d, point 2 of the Penal Code.

Further, the act must also be subject to responsibility under the law of the place where it was committed, or if it was committed in an area that does not belong to any State, under Swedish law, the penalty for the act must be imprisonment. Section 3 complements the provision, which in its second paragraph states seven points where offences committed abroad also may be judged under Swedish law and in a Swedish court, if the least severe penalty prescribed for the offence in Swedish law is imprisonment for four years or more, regardless of whether or not the act is criminalised under the law of the place where it was committed.

The Nordic Environmental Protection Convention, provides reciprocal access to domestic legal remedies for residents of Denmark, Finland, Norway and Sweden for decisions in their country of origin (adopted as Swedish law, SFS 1974:268). The Act on the border river agreement between Sweden and Finland (2010:897) promotes and governs cross-border cooperation on water and fisheries and implements the EU Water Framework Directive and Floods Directive.

The Espoo Convention on Environmental Impact Assessments in a Transboundary Context is important for administrative matters on licence procedures for the activities listed in the Convention. Sweden as well as the EU are parties to that Convention. The provisions of that Convention are implemented in the Environmental Code and the Planning and Buildings Act.

 
 

II. Accessing courts

A. How can environmental cases be brought before national courts?

Sweden has a special system of environmental courts, where cases on environmental matters may be tried. These courts are referred to as Land and Environment Courts.36 These courts have jurisdiction over civil and administrative land and environment cases.37 Additionally, they act as permit authorities in some cases. These cases are listed under Chapter 21 Section 1 of the Environmental Code. The fundamental procedural regulations that are to be applied within these courts are found in the Act on Land and Environment Courts. Criminal cases are not part of these courts’ jurisdiction.38 As for the administrative procedure, such a procedure will usually be initiated within a local or regional environmental authority, either in response to an individual’s complaint of a decision made by the authority, or through an application made by the individual. The Land and Environment courts will later on try appeals of the final decisions made by the local and regional authorities.39 The most common way for an individual to bring an environmental case before a court is by appealing a decision made by a local or regional authority.

As previously mentioned, in addition to the courts’ jurisdiction over administrative matters, the courts handle civil disputes on land and environment cases, including claims for damages. In general, in civil procedures within the Land and Environment Courts, an individual brings a case to court by suing for damages, by seeking a court injunction or by demanding precautionary measures.40 As for environmental crimes under Chapter 29 of the Environmental Code, these cases are to be tried within the ordinary court system.41

Certain environmental matters are allocated to the Administrative courts, for example cases under the Forestry Act and the Hunting Act. The Government has jurisdiction over certain matters, e.g. activities of importance of State defence. Such decisions may be brought by individuals or NGOs to the Supreme Administrative Court for judicial review.

Lastly, even though there is no Constitutional Court in Sweden, constitutional reviews of legislation can be made by the Courts in any case before them; Courts may disregard a provision if they deem that it does not comply with legislation of higher status. However, as previously mentioned, environmental rights are not protected within the Swedish Constitution, hence there is no constitutional route to address an environmental case.

B. What rules of standing apply in environmental cases?

In procedures regarding administrative decisions made by local and regional environmental authorities, concerned parties are those with legal standing, i.e. individuals and other legal entities with a direct concern of a private interest in the decision.42

The legal standing of concerned parties also applies to judicial procedures in environmental cases, according to Chapter 16 Section 12 of the Environmental Code. Parties affected by inconvenience or harm, or potential risk for such, are considered concerned parties, according to court practice.43 During the preparatory work, the lawmaker argued that the term should be interpreted generously.44 However, merely asserting a public interest does not suffice for standing. Furthermore, a local trade union that organises workers in the affected operation has standing in cases concerning permit matters, according to Chapter 16, Section 12.

Additionally, non-governmental organisations (NGOs) may have standing in environmental judicial procedures concerning permit matters, revocation of nature conservations, shoreline protection and environmental liability cases, according to Chapter 16, Section 13 of the Environmental Code. According to the same provision, such standing requires the organisation to have at least 100 members or be able to show the support of the general public, the organisation has to be non-profitable with a main purpose of nature/environmental conservation and it has to have been operating in Sweden for a minimum of three years. According to Chapter 16, Section 14, organisations with the purpose of conserving other outdoor interests also have standing in matters concerning shoreline protection.

The rules of standing for NGOs have been extensively interpreted by national courts, due to reasons regarding EU-law. NGOs have been allowed in a wider range of administrative decisions than those listed in Chapter 16, Section 13, when such action has been considered necessary for effective implementation of EU-law. For example, in the cases MÖD 2012:4745 and MÖD 2012:4846, the court found that NGOs have standing in some environmental liability cases other than those under Chapter 10 of the Environmental Code.

With reference to the Aarhus Convention, Administrative courts, the Land and Environment Court of Appeal and the Supreme Court have broadened the standing inter alia in cases on cultural heritage (NJA 2020 p. 641), hunting (HFD 2018 ref. 46), and forestry (HFD 2014). The Land and Environment Court of Appeal, based on the provisions in the ECHR, has also extended the standing of individuals in planning cases (e.g. MÖD 2019:19) and in a recent judgment has admitted the standing of a Finnish NGO in a mining case despite the fact that Swedish legislation only explicitly recognises domestic organisations (decision the 14 April 2022, M 1697-22).

It is also important to highlight that under the Class Action Act 2003, individuals or legal persons, organisations, and authorities (with special authorisation from the government) may initiate a class action.47

C. Do these rules of standing differ when children are the complainants and if so in what way?

In general, under Swedish law children are not permitted to bring cases to court on their own or appeal administrative decisions on their own. The custodian or guardian of a child acts as the child’s legal representative in matters regarding the child’s personal affairs, according to Chapter 6 Section 11 of the Swedish Children and Parents Code. In matters regarding the child’s property and financial affairs it is the child’s guardian who acts as the legal representative. The Ombudsman or the National Agency for Education can bring an action for damages if the child’s custodian consents. 48

D. What is the burden and standard of proof for allegations of personal injury as a result of toxic exposure?

Bringing action for a personal injury as a result of toxic exposure is a civil procedure in which compensation is available as a remedy for suffered damages. In civil procedures the parties have to produce the evidence. In cases of liability for damages, the party pursuing the action is usually the one with the burden of proof. Therefore, this party has an extensive responsibility for the investigation. The evaluation and assessment of the evidence presented by the parties’ is in the discretion of the court. The standard of proof is somewhat unclear; the court must find the evidence produced to be sufficient for the claim. What the court finds sufficient can however depend on the circumstances of the case.49

As for cases concerning toxins, the Supreme Court (in a case related to the previous Act on Environmentally Harmful Operations – these rules subsequently regulated in an act on Environmental damages and now incorporated in the Environmental Code) found that a certain level of evidentiary alleviation is called for, due to the complex nature of these cases.50 In other administrative environmental procedures, the standard of proof also depends on the circumstances in the specific case. Aspects to consider when determining the standard of proof are, among others, the level of environmental impact, or the risk of environmental impact, of a certain operation or action.51 For environmental damages, claimants can choose to sue in general court based on general tort law or at the Land and Environment Court, based on the provisions in Chapter 32 of the Environmental Code. In certain cases, the Environmental Code provides for strict liability and for a lower standard of proof regarding the causal link between a damage and an activity, which must be probable nonetheless. The Environmental Code contains an exhaustive list of causes of action that can be addressed under that legislation and in the Land and Environment Courts.

A group of children and youths are planning to bring a class action lawsuit against the Swedish State for its insufficient actions against climate change.52 It is not clear yet whether they will sue in general court or they will find legislative support in the Environmental Code to sue at the Land and Environment Court.

E. What limitation periods apply in environmental cases?

The limitation period for the majority of the environmental crimes is five years. Limitation periods for crimes are regulated in Chapter 35 of the Penal Code. For most of the environmental crimes, such as pollution crime, the most severe punishment is imprisonment for a maximum of two years. Chapter 35 Section 1 of the Penal Code states that if the most severe punishment is imprisonment for more than one but no more than two years, the limitation period for the crime is two years. It should however be mentioned that anyone who conducts or has conducted an activity or has taken a measure that has contributed to a pollution damage or serious environmental damage, is responsible to remedy the damage, and that no limitation period applies to responsibility to remedy.53

In civil cases there is a general limitation of ten years, according to the Swedish Act on Limitation (1981:130).

In administrative cases, there are specific rules on limitations related to sanction fees and conditional fines linked to court orders. Chapter 10 in the transitory regulations to the Environmental Code introduces certain limitations as to polluted areas, where the activity did not continue after the 30 June 1969 (Article 8 of the act 1998:811 on promulgation of the Environmental Code).

F. Is legal aid available in environmental cases? If so, under what circumstances?

Legal aid is available in environmental cases and the right to legal aid is governed by the Legal Aid Act. In Sweden, it is a fundamental right to have one’s case heard by a legal representative, either in or outside court.54 Before applying for legal aid, a person must first make an appointment for advice under the Legal Aid Act. The lawyer examines the details of the dispute in order to provide advice and make a professional assessment of a person’s need for legal aid. Legal aid may only be granted if the applicant needs legal assistance in addition to counselling and this need cannot be met in any other way.55

Applicants are further required to pay a fee. The size of the fee is determined by the costs of the legal representative and the financial basis of the applicant. If the applicant is a child, it may be decided that no fee shall be payable if the applicant’s financial circumstances give rise to it. The preparatory work states that this exception rule shall apply restrictively and a decision must be made in each specific case.56 Legal aid may only be granted if, given the nature and importance of the matter, the value of the dispute and with respect to other circumstances, it is reasonable for the State to contribute to the costs. Legal aid may not be granted to applicants whose financial basis exceed SEK 260,000, or if the applicant has legal protection cover through insurance.57

According to the Legal Aid Act, other sources of legal assistance available from the State include public defence counsel, public counsel, special representatives for children, and assistance for victims of crime. Public defence counsels are appointed by a court and must be made available if a person is suspected of committing a criminal offence, but is not provided for misdemeanour offences.

A number of services are also available. For example, the Swedish Bar Association runs the Advokatjouren program, a free service intended to provide people who are ineligible for legal aid with an opportunity to meet with local lawyers to identify legal issues and receive guidance on how to proceed.58

There is no possibility to be granted legal aid in administrative cases where the applicant has the burden of proof and the court an obligation to ex officio examine the case, as for example in cases concerning an application for a permit to environmental harmful operations or water operations. In cases on permits for water operations, applicants are liable for their own and the opposite parties’ costs in environmental courts.

In MÖD 2003:66, the Land and Environment Court of Appeal did state that the court in environmental cases has a far-reaching investigation obligation, and therefore the need for legal assistance in this type of case may be limited.59

Moreover, in other administrative cases (appealed cases from authorities), courts have an extensive obligation to ex officio examine the case and there is in principle no possibility to be granted legal aid or to have litigation costs covered by the losing party, e.g. MÖD 2019:22.

 
 

III. Remedies

A. What remedies are courts empowered to impose in environmental cases?

Sweden has five Land and Environment Courts and a Land and Environment Court of Appeal based in Stockholm which have legal jurisdiction over environmental areas and can incorporate civil and administrative powers. These courts are special sections of general courts but with a wider geographical jurisdiction. The courts have power to review and rule on the legality and the merits of decisions made by regional boards and by local authorities.60 Those courts are concerned with ruling on:

  • Appeals relating to administrative decisions made by local and regional environmental authorities (including all decisions made on the basis of the Code and the Planning and Building Act);
  • Civil disputes relating to land environment cases (including compensation and damages claims); and
  • Claims relating to environmentally hazardous activities (where a court injunction may be applied for).
  • The Land and Environment courts do not rule on criminal cases. Criminal cases are tried by the general courts.

The Environmental Code establishes in detail the types of environmental offences and the appropriate remedy for them. According to Chapter 29 Section 1, any person who deliberately pollutes land, water or air which involves risk to human life or other significant detriment to the environment, stores waste or other matter in a manner which may give rise to health risks or causes substantial detriment to the environment as a result of noise, vibration or radiation shall be liable to a fine or a term of imprisonment not exceeding two years for an environmental offence. Furthermore, any person who commits an offence referred to in Section 1 through negligence shall be liable to a fine or a term of imprisonment not exceeding two years for the offence of causing environmental disturbance.

Under Section 4, any person who, deliberately or through negligence, starts or pursues an activity without obtaining permission, permit, approval or consent, or without submitting a notification required by the Environmental Code will be liable to a term of imprisonment not exceeding two years for the offence of unauthorised environmental activity.

Section 5 provides that any person, who omits deliberately or through negligence, to submit notification, information or supplies incorrect information, thus hindering a permit application procedure, will be liable to a term of imprisonment not exceeding two years for the offence of obstruction of environmental control.

According to Chapter 30 Section 1, a special environmental sanction charge shall be paid by any economic operator who in their business activities neglects to comply with rules issued pursuant to the Code or neglects to comply with the terms of a permit or conditions laid down pursuant to the Code. The minimum environmental sanction charge is SEK 5,000 and the maximum charge is SEK 1,000,000. These fines are imposed by supervisory authorities and can be challenged before the Land and Environment Courts.

In other administrative cases, courts are put in the same position as the first deciding authority. As long as covered by the scope of the applicant’s claims, the court may not only quash or reject the claims, but also it may alter the authorities’ decision to impose a prohibition, to issue an order, or to make a stricter order.

B. What remedies have courts ordered in environmental cases to date?

Some of the most frequent cases at the Land and Environment Courts relate to challenges against decisions by authorities. Cases are usually filed either by neighbours or by an operator complaining that the decision from the authority is too strict. Neighbours may complain about disturbances and ask for a prohibition or an order to impose mitigating measures, such as restricting the working hours of an activity, restricting when an incineration facility may operate according to the time and wind direction, or programmes to reduce disturbing shadows from wind mills. Courts then have the possibility to issue such orders or to alter the order or permit for an activity, either to make it stricter or to ease the burden for the operator.

Certain supervisory authorities have the power to impose environmental fines, which can also be challenged before the Land and Environment Courts. However, Courts do not have the power to impose such fines, and so NGOs or individuals cannot petition Courts to impose fines. It is nevertheless possible for individuals to bring an authority’s failure to impose a fine before the Ombudsman. In practice, there are examples of members of a municipality board who have been punished when neglecting to act on environmental fines. Regarding environmental fines the Land and Environment Court of Appeal has found that they constitute public law sanctions that are similar to criminal penalties. Therefore, the principle of legality determines that the concepts referred to in the relevant regulations must be interpreted in the same way in the Environmental Code than in other parts of Swedish law.61

The main remedies that courts have ordered in environmental criminal cases are fines, conditional sentences in conjunction with community service, imprisonment, corporate fines and environmental sanction charges.

In assessing the question of whether a crime should be considered to be of such a nature that there is a presumption of imprisonment, it is of crucial importance whether general preventive considerations can be considered to apply with special force. The legislator’s view is of paramount importance. In assessing whether the crime is of such a nature that imprisonment should be imposed, the court also takes into account the nature of the crime and the circumstances surrounding the crime. A presumption of imprisonment has been applied by the courts for certain intentional environmental crimes that were considered difficult to detect. In order for the presumption to have been broken, the courts have considered that special reasons were required for not choosing a custodial sentence. A special reason for a conditional sentence instead of imprisonment may, according to the courts, be that the defendant consents to the sentence being combined with a regulation on community service, provided that such a regulation is appropriate with regard to the defendant’s person and other circumstances.62

The courts have ordered the remedy of corporate fines in environmental cases where environmental crimes have been committed in the exercise of business activities.63

C. Are there any administrative authorities empowered to act on environmental complaints and if so, how are they empowered to respond to complaints?

The Environmental Code and governmental regulation under it set forth the supervisory authorities and the sectors they are responsible for. Complaints from individuals or NGOs are in the first hand addressed to these authorities that may be of local (the municipalities), regional (the County Administrative Board, a governmental authority that as well tries appealed decisions from the municipality level), and national governmental authorities (e.g. the Swedish Environmental Protection Agency, the Swedish Chemicals Agency and the Swedish Board of Agriculture).

Chapter 26 of the Environmental Code regulates the powers and instruments available for these authorities, and the possibility to issue orders and prohibitions that may be combined with conditional fines. According to Chapter 30 of the Code the supervisory authority may issue environmental penalty fines for certain offences, as set forth in the concerned governmental regulation. Authorities have the right to access land and buildings, for which they may have the support and protection of the police, as per Chapter 28 of the Code.

The path for recourse differs depending on whether the case relates to an administrative decision or constitutes a private law action. 64

Recourse in respect of administrative decisions:

Initial recourse (including in respect of administrative decisions) is to the relevant municipality and county administrative boards, which are tasked with enforcing the Environmental Code.

Appeals relating to cases under the Environmental Code take the following route:

  • Municipal Environmental Board
  • County administrative Board
  • Land and Environment Court
  • Land and Environment Court of Appeal (leave to appeal needed)
  • Supreme Court (only cases that have started at the Land and Environment Courts, leave to appeal needed)

It should be noted that some decisions (mainly by national governmental authorities) related to the environment, as on forestry, hunting and fishing, are to be challenged at the administrative courts.

Recourse in respect of a private law action:

The following claims may be brought directly to court:

  • A request for an injunction;
  • A claim for civil liability for damages caused by the acts or omissions of a State authority;
  • Claims against private individuals; and
  • Claims against legal entities.

Criminal cases (before the general courts):

Claims relating to certain acts or omissions constituting criminal offences are brought by the Prosecution Authority. Such claims include:

  • Misuse of office;
  • Breach of professional confidentiality; and
  • Environmental offences.

Ombudsman:

Sweden has not created the office of an environmental ombudsman. The Parliamentary Ombudsman and the Chancellor of Justice carry out some of the duties that would be expected to lie within the remit of an environmental ombudsman. The Parliamentary Ombudsman and Chancellor of Justice initiate action on the basis either of public complaints or on their own initiative. While the Chancellor of Justice is concerned mainly with claims for compensation from the State, the Parliamentary Ombudsman may review the administrative handling of a particular case and can take action by issuing opinions (that are considered authoritative).

The Swedish Environmental Protection Agency (EPA) is the public agency in Sweden responsible for environmental issues. It carries out assignments on behalf of the Government relating to the environment in Sweden, the EU and internationally. It also develops and implements environmental policy to ensure compliance with the Swedish Environmental Code and achievement of environmental objectives. The Agency’s remit includes the allocation of government appropriations to other actors within fields such as clean-up and remediation of polluted areas and compensation for damage caused by wildlife.65

 
 

IV. Civil and political rights

Freedom of peaceful assembly

A. How is children’s right to engage in peaceful assembly, including protests, protected in national law?

Sweden is a State party to the 1966 International Covenant on Civil and Political Rights (ICCPR).66 Article 21 of the ICCPR provides that: “The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedoms of others”.

Sweden is also a State party to the European Convention on Human Rights.67 Article 11 provides that: “Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests”, and “No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals or for the protection of the rights and freedoms of others. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State”.

As previously mentioned in Section 1.A of this document, the Constitution of Sweden consists of four fundamental laws: the Instrument of Government, the Act of Succession, the Freedom of the Press Act, and the Fundamental Law on Freedom of Expression. According to Section 1 Chapter 2 of the Instrument of Government, everyone is guaranteed the rights to freedom of assembly. It provides that: “Every citizen shall be guaranteed the following rights and freedoms in his relations with the public institutions: […] freedom of assembly […]”. The law does not specify an age limit or a specific group of people but makes a general statement that includes all Swedish citizens, including children.

B. Are there any legal limitations on the right of children to engage in peaceful assemblies?

The chapter on Fundamental Rights and Freedoms in the Instrument of Government does not specify an age limit to this right. It states that “Every citizen shall be guaranteed the following rights and freedoms in his relations with the public institutions: […] freedom of assembly […]”.68

In 2018, the Swedish parliament decided to incorporate the CRC into Swedish law. The need to strengthen children’s rights specifically to participation was emphasised in the legislative bill.69

C. What penalties can be imposed on children for engaging in school strikes?

In Sweden, going to school is compulsory from age of 6 until the age of 16.70 According to Chapter 7, Section 20 and 23 of the Education Act, municipalities, as organisers, have the power to fine parents for when they consciously keep their children home or their children are constantly skipping classes. However, it has been said that these fines are used merely as a threat and are rarely issued.

Greta Thunberg, a Swedish girl, is a leading figure of the engagement of children for the Environment. She started the first protest “School Strike for Climate” in front of the Parliament in 2018. Fridays for Future became an international movement of school students who skip Fridays classes to participate in demonstrations and demand action from political leaders to protect the environment. A few months later, thousands of strikes were organised around the World. One of the largest climate strikes in history took place in September 2019, gathering roughly 4 million protesters, many of them schoolchildren.71 The first complaint before the CRC Committee on the rights of the child and the environment was brought by a group of 15 young petitioners, including Greta Thunberg.72

Freedom of expression

A. How is children’s right to freedom of expression protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Section 1 of the Fundamental Law on Freedom of Expression provides that: “(1) Every Swedish citizen is guaranteed the right under this Fundamental Law”.73 Although the Law does not specify children or an age limitation, it specifically states “every Swedish citizen” suggesting that the age of the citizen does not pose any restrictions.

B. Are there any legal limits or restrictions on the right to freedom of expression that specifically apply to children?

Sweden criminalises a number of behaviours such as hate speech, enticement, defamation and disruption of certain public gatherings.74 No specific restrictions or limitations on the right to freedom of expression that apply to children specifically have been mentioned. Children under 15 years can not be punished under criminal law.

Freedom of association

A. How is children’s right to freedom of association protected in national law?

Swedish law does not distinguish, in many cases, between the rights of children and those of adults. As such, unless the rights of children are specifically delineated in respect of a particular subject, their rights in respect of any particular area will be considered identical to that of adults (subject to any specific legal limitations applicable to children).75

Chapter 2 of the Instrument of Government states that all citizens have the freedom to associate, whether in public or in private, as they will. In addition, the CRC, which Sweden has adopted into domestic law in 2020 guarantees to children the freedom of association.76

B. Are there any legal limits or restrictions on the right to association that specifically apply to children?

Freedom of association is limited to the extent that it takes a military or quasi-military form or is used for the persecution of a particular group.77 An association or a foundation cannot pursue activities that are against law and moral standards, and a minor can not be a board member.78 However, there are no restrictions on the freedom of association of children as such, and about half of the young people in Sweden are members of an association.79

Young people have been actively engaged in associations for a long time. For instance, Fältbiologerna was created in 1947, and expanded in several regions of Sweden.80 Swedish young people are strongly committed to the issue of climate change and there are nowadays several other youth associations in this field, including Fältbiologerna (Nature and Youth Sweden), Global Shapers, Climate Students Sweden, the National Council of Swedish Youth Organisations, PUSH Sweden, Sáminuorra, Guides and Scouts of Sweden, Svenska Kyrkans Unga (Church of Sweden Youth), we_change and WWF Sweden Youth.81

Access to information

A. How is children’s right to access information protected in national law? Are there any protections within the national constitution, legislation or developed through case law?

Swedish law largely subsumes the rights of children together with those of adults.82 Under Swedish law all persons (including body corporates) may obtain access to official documents. An official document for the purposes of the Swedish Freedom of the Press Act is a document that is held by public authority; and has been received or drawn up by a public authority.83

A document is considered:

  • ‘held’ at a public authority if it can be read or otherwise comprehended (with the assistance of technical aids) at the public authority (Chapter 2, Section 3 and 7);
  • ‘received’ at a public authority when actually received or is otherwise available to an authorised officer of that public authority (Chapter 2, Section 6);
  • and ‘drawn-up’ by a public authority when (depending on the nature of the document): the document has been dispatched, the matter to which it relates has been finally settled, it has reached final form, and it has been checked and approved (Chapter 2, Section 7).

B. Are there any legal limits or restrictions on the right to access information that apply specifically to children?

Restrictions applicable to access information rights would apply equally to children as they would to adults.84 Under Swedish law, the general right to information may be restricted for a number of reasons, including but not limited to, where it is considered necessary for the purposes of security, with regards to Sweden’s bilateral relations with other States, or with regards to Sweden’s fiscal policy.85

Since 1991, Sweden has adopted a legislation to ban advertising targeted at children under 12, including commercial adverts promoting food or toys before, during or after children’s television programming.86 The Freedom Press Act also contains child protection provisions, including the distribution of printed materials which by reason of its content might have a brutalising effect, or otherwise seriously imperil the moral tutelage of the young.87

The Swedish data protection authority has published new guidance in 2020 with the aim of strengthening children’s and young people’s rights online. It has also jointly produced with the Children’s Ombudsman and the Swedish Media Council a guide for actors responsible for social media, games and other digital environments.88

C. Does the national curriculum for schools include environmental education?

The environment has been an integral part of the curriculum since 1969. Sweden’s education system places an emphasis on teaching students about the environment in a holistic manner (as a part of the study of both the natural and social sciences). On average, six to seven hours are devoted each week to subjects or material that are focused on the environment. Education relating to the environment takes both formal as well as informal forms, with the primary method of formal education being empirical studies and laboratory/field work. An elective component is present in most subjects in Swedish schools and these are often utilised to provide education relating to the environment.89

The government also encourages all its citizens to enjoy nature and outdoors activities. The Swedish outdoor recreation policy was adopted in 2012 to promote opportunities to be outdoors in nature and to enjoy outdoor recreation. Outdoor recreation in schools is part of the policy. It means that pre-schools, schools, and after-school centres should carry out outdoor recreation activities and educate about the conditions for a healthy environment and sustainable development. Children, pupils, and students should be given good opportunities for being outdoors.90

***

End notes

1 Swedish translation: Kungörelse (1974:152) om beslutad ny regeringsform, Successionsordningen (1810:926), Tryckfrihetsförordningen (1949:105), Yttrandefrihetsgrundlagen (1991:1469). The Swedish Constitution is available here.


2 See also SOU 2001:19, p. 31, available in Swedish here, and A..Eka, Svensk Juristtidning och statsrätten, ’Svensk Juristtidning 100 år’, 2017 p. 367, available in Swedish here.


3 In Sweden, when laws are adopted, the government has to provide a bill explaining the reason for the law and its provisions. These preparatory documents are a source of law. Swedish courts can use the preparatory documents to interpret the law. See Prop. 1973:90, p. 194 and SOU 1975:75, p. 184.


4 Swedish translation: Miljöbalk (1998:808), hereafter referred to as the Environmental Code, available here.


5 See here.


6 “The property of every individual shall be so guaranteed that no one may be compelled by expropriation or other such disposition to surrender property to the public institutions or to a private subject, or tolerate restriction by the public institutions of the use of land or buildings, other than where necessary to satisfy pressing public interests. A person who is compelled to surrender property by expropriation or other such disposition shall be guaranteed full compensation for his or her loss. Compensation shall also be guaranteed to a person whose use of land or buildings is restricted by the public institutions in such a manner that ongoing land use in the affected part of the property is substantially impaired, or injury results which is significant in relation to the value of that part of the property. Compensation shall be determined according to principles laid down in law. In the case of limitations on the use of land or buildings on grounds of protection of human health or the environment, or on grounds of safety, however, the rules laid down in law apply in the matter of entitlement to compensation”.


7 European Union, ‘Access to justice in environmental matters – Sweden’, available here.


8 Land and Environment Court of Appeal, Judgments M 7888–19 and M 7293–20, 22 December 2021.


9 See also Supreme Court, Judgment NJA 2014, p. 332.


10 The Swedish Environmental Protection Agency, ‘Aarhus Convention – your right to environmental information’, available here.


11 The United Nations Economic Commission for Europe, available here.


12 R. Lagerberg, ’Sweden – Where children Count’, available here.


13 See CRIN’s report on Access to justice – Sweden, available here.


14 MÖD 2021:3 (Land and Environment Court of Appeal), regarding the right of a neighbour to challenge a decision on “starting clearance”; NJA 2020 s. 641 (Supreme Court), regarding the standing of an NGO in a planning case related to cultural values of an area; HFD 2018 ref. 10 (Supreme Administrative Court), on the standing of an NGO in a case under the Act on Cultural Environment; HFD 2014 ref. 8, on the right of an NGO to challenge a decision to permit deforestation; and HFD 2018 ref. 7, regarding right of an NGO to challenge a decision on hunting.


15 Chapter 1 Section 1 of the Environmental Code.


16 See Prop. 1997/98:45, p. 8 Part 2, available in Swedish here.


17 See, for example MÖD 2015:27, available in Swedish here. MÖD 2013:39, available in Swedish here. and MÖD 2006:53 available in Swedish here.


18 MÖD 2013:39, available in Swedish here.


19 Chapter 1 Section 1 of the Code.


20 The Swedish Environmental Protection Agency, ‘The Swedish Environmental Code’, available here.


21 Swedish translation: Lag (2011:579) om leksakers säkerhet, hereafter referred to as the AST, available in Swedish here.


22 Swedish translation: Förordning (2001:703) om leksakers säkerhet.


23 Kemikalieinspektionens föreskrifter (KIFS 2017:8), hereafter referred to as the SCA.


24 Art. 10(2), Directive 2009/48/EC of the European Parliament and of the Council of 18 June 2009 on the safety of toys, available here.


25 Swedish translation: Artskyddsförordningen (2007:845).


26 The announcement and the scope of the assignment is available here.


27 See here.


28 “Om prövning och omprövning – en del av den gröna omställningen”, SOU 2022:33. here


29 See here


30 The Swedish Chemicals Agency, telephone interview with Jenny Wirdarson, project leader for Project Gift fri miljö.


31 The Swedish Chemicals Agency, latest report available in Swedish here.


32 See here.


33 The Swedish Environmental Protection Agency, Swedish Pollutant Release and Transfer Register, available here.


34 Regulation (EC) No 166/2006 of the European Parliament and of the Council of 18 January 2006 concerning the establishment of a European Pollutant Release and Transfer Register and amending Council Directives 91/689/EEC and 96/61/EC, available here.


35 The Swedish Criminal Code, hereafter referred to as the SCC, SFS 1962:700, 1 January 1965, official translation as of 23 April 2020 available here. Crimes that also invoke extra-territorial, are so called international crimes, which are crimes in the Act on Criminal Responsibility for Genocide, Crimes Against Humanity and War Crimes, SFS 2014:406, available here.


36 Swedish translation: lag (2010:921) om mark- och miljödomstolar, available in Swedish here.


37 Chapter 21 Section 1 of the Environmental Code.


38 Chapter 16, Section 1 of the Environmental Code.


39 Chapter 19, Section 1 and Chapter 21, Section 1 of the Environmental Code.


40 European Union, ’Access to justice in environmental matters – Sweden’, op. cit.


41 Chapter 16 Section 1 of the Environmental Code.


42European Union, ’Access to justice in environmental matters – Sweden’, op. cit.


43 RÅ 1997:38, available in Swedish here. NJA 2004 p. 590 I and II, available in Swedish here.


44 Prop. 1997/98:45, p. 483 Part 1.


45 Available in Swedish here.


46 Available in Swedish here.


47 CRIN’s report on Access to justice – Sweden, op. cit.


48 Swedish translation: föräldrabalk (1949:381), available in Swedish here. See M. Jänterä-Jareborg, A. Singer, & C. Sörgjerd, ’National Report: Sweden’, available here. See also CRIN’s report on Access to justice – Sweden, op. cit.


49 European Union, ‘Taking of evidence – Sweden’, available here.


50 NJA 1981, p. 622, available in Swedishhere.


51 Prop. 1997/98:45, p. 210 Part 1.


52 See here.


53 Chapter 10 Section 2 the Environmental Code. See also SOU 2006:39, p. 225, available in Swedish here.


54 Legal Aid Authority, ‘Legal aid in Sweden’, January 2007, availablehere.


55 Section 4 and 7 of the Legal Aid Act.


56 Prop. 1998/99:10, p. 12.


57 Section 6, 8 and 9 of the Legal Aid Act.


58 Latham & Watkins, ‘A survey of pro bono practices and opportunities in 71 jurisdictions’, August 2012, p. 307, available here.


59 MÖD 2003:66, available in Swedish here.


60 U. Bjällås, “Experiences of Sweden’s Environmental Courts”, available here.


61 MÖD 2001:23, available in Swedish here.


62 NJA 2005 s. 263, available in Swedish here. and RH 2013:48, available in Swedish here.


63 NJA 2006 s. 188, available in Swedish here.


64 European Justice, ’Access to justice in environmental matters – Sweden’, op. cit.


65 See here.


66 Available here.


67 Available here.


68 Chapter 2, Section 1.


69 P. Leviner, ’Children’s Constitutional Rights in the Nordic Countries’, available here.


70 Education Act (2010:800), Chapter 10, Section 7 , available here. and Prop. 2017/18:9 Skolstart vid sex års ålder, p. 52 ff., available here.


71 See for instance here. or here.


72 See here.


73 The Fundamental Law on Freedom of Expression, available here.


74 E. Hofverberg, ‘Limits on Freedom of Expression: Sweden’, available here.


75 T. Mattsson, ’Constitutional Rights for Children in Sweden’, op. cit., p. 103-119.


76 Art. 15 of the CRC.


77 Section 14 of the Instrument of Government.


78 See here.


79 Torbjörn Forkby, “Youth policy and participation in Sweden: a historical perspective”, available here.


80 See here.


81 See here.


82 T. Mattsson, ’Constitutional Rights for Children in Sweden’, op. cit., p. 103-119.


83 Chapter 2, Section 1, Freedom of the Press Act (SFS 1949:105), available here.


84 T. Mattsson, “Constitutional Rights for Children in Sweden”, p. 103-119, op. cit.


85 Chapter 2, Section 1, Freedom of the Press Act.


86 Originally included in the Radio Act of 1991 (SFS 1991:1066). See L. Olsen, “Children and Advertising. Some Perspectives on the Relevant Legal Arguments”, available here.


87 Chapter 6, Article 2.


88 See here.


89 J. Radeiski, “The Implementation of Environmental Education in elementary schools — A Comparative Study between Sweden and Germany”, Blekinge Tekniska Högskola, Karlskrona, Sweden, availablehere.


90 See here.