Abstract
This chapter places the case study on Swedish systems of choice for social services, discussed in Chap. 9, in its broader legal context. It examines in particular whether Swedish public and competition law governing activities under the competence of local and regional authorities is conceptually apt to “receive” EU state aid rules applying to social services, and allows relating the cases studied in Chap. 9 to the broader question of the decentralised and increasingly individualised model of welfare services in Sweden.
This is a preview of subscription content, log in via an institution to check access.
Access this chapter
Tax calculation will be finalised at checkout
Purchases are for personal use only
Notes
- 1.
See Chapter 1 Article 7 of the Instrument of Government. In Sweden, “local authorities” exist at two levels, local and regional, called municipalities and county councils, or alternatively “primary and secondary municipalities”. 290 primary municipalities and 18 county councils. The Swedish constitution 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. The principles governing specifically the powers and missions of local and regional authorities are laid down in Chapter 14 of the Instrument of Government.
- 2.
Chapter 2 Section 1 of the Local Government Act (Sw: Kommunallagen (1991:900).
- 3.
The Swedish constitution consists of four fundamental laws: the Instrument of Government (Sw: Regeringsform (1974:152), the Act of Succession (Sw: Successionsordning (1810:0926)), the Freedom of the Press Act (Tryckfrihetsförordning (1949:105)), and the Fundamental Law on Freedom of Expression (Sw: Yttrandefrihetsgrundlag (1991:1469)).
- 4.
Chapter 2 Sections 2 and 3 of the Local Government Act.
- 5.
Report of the commission of inquiry on the Local Government Act “Kommunallagskommittén” SOU 1947:53, s. 68.
- 6.
Chapter 2 Section 7 of the Local Government Act.
- 7.
This discretion was consolidated in 1991 and is provided in Chapter 2 Section 7 of the Local Government Act. A complication is which activities may be seen as commercial for the purpose of the Local Government Act., an issue examined under Sect. 8.2.2. Commercial activities regarded as in principle reserved to the private sector are commonly known in Swedish law practice as “the genuine business sector”.
- 8.
Chapter 3 Section 16 first paragraph of the Local Government Act.
- 9.
Chapter 3 Section 16 second paragraph of the Local Government Act.
- 10.
Chapter 3 Sections 17–18 of the Local Government Act. Regarding a company that it wholly owns, a local or regional authority must in particular take care that the company activity’s purpose and the authority’s competence justifying this activity are explicitly stated in the articles of association.
- 11.
It is well established in Swedish case law that a local or regional authority may decide to partly or wholly tax finance services or facilities for which there are no statutory charging principles (the so called “deficit-principle”). For references to this case law, see Lindquist 2011, pp. 177–178.
- 12.
Chapter 8 Section 3b of the Local Government Act. As will be seen, such prescription is made in several laws concerning social services.
- 13.
Chapter 8 Section 3c of the Local Government Act.
- 14.
Chapter 8 Sectin 5a of the Local Government Act. Very simplified, a year’s negative result must be resorbed under the three following years.
- 15.
Chapter 8 Section 1 of the Local Government Act provides that “municipalities and county councils shall exercise good economic management in their activities and in activities conducted by the agency of other legal entities.”
- 16.
Chapter 8 Section 2 of the Local Government Act.
- 17.
See decision of the administrative court in Malmö of 26 June 2013, case nr.13858-10. For instance, this principle imposes on local authorities to strive to get the best possible price when selling municipal property.
- 18.
Chapter 2 Section 8 of the Local Government Act.
- 19.
Government Bill on LRAs’ competence, Kommunala kompetensfrågor m.m., proposition 2008/09:21, p. 58.
- 20.
See Section 3 of the Act on Certain Municipal Competence (in Sw: Lag (2009:47) om vissa kommunala befogenheter). On the basis of this Act, LRAs may also provide tourism infrastructures, export expertise on municipal administration, etc.
- 21.
In some traditional municipal sectors, LRAs acting as providers are not only obliged to act business like but may also derogate from the localization principle laid down in the Act on Local Government. This is for instance the case according to Chapter 7 Sections 1 and 2 in the Swedish Act on Electricity (in Sw: Ellag (1997:857)), Section 39 of the Distance Heating Act (in Sw: Fvärrvärmelag (2008:263)) or Section 57 of the Public Water Services Act (in Sw: Lag (2006:412) om allmänna vattentjänster). The reason for this exception is often of technical nature.
- 22.
Chapter 2 Section 4 Local Government Act.
- 23.
Cyndecka holds that “being profit-motivated or pursuing economic objectives is the fundamental characteristic of a behavior that is typical of private market operators” but that “the state is by no means precluded from pursuing [non-economic objectives] when acting as a private investor would”, as in particular, “a public investor does not need to be guided by profitability in the short term. It may be so also in a medium or long term while pursuing a structural policy, either general or sectoral”. See Cyndecka 2015, p. 319. To argue that a long-term profitability may comply with the market economy investor principle (MEIP) appears to be a convenient way to “square the circle”, and prevent that public authorities’ decisions to invest for instance in housing in geographic areas where profitability is inexistent, and where a private investor would not invest a penny, are challenged on the ground that they are incompatible with the MEIP imposed on their behaviour. Another manner to address the problem, arguably more solid legally, is to admit that in case for-profit is required from public investors as a general rule, market failure may necessitate a derogation from the MEIP under Article 106(2) TFEU.
- 24.
These missions are mainly regulated by the Health and Medical Services Act (Sw: Hälso- och sjukvårdslag (1982:763)), but also for instance by other acts such as the Act on Care of Addicts under certain circumstances (Sw: lag (1988:870) om vård av missbrukare i vissa fall); the Act on Involuntary Commitment (Sw: lag (1991:1128) om psykiatrisk tvångsvård); the Act on Forensic Psychiatry (Sw: lag (1991:1129) om rättspsykiatrisk vård).
- 25.
These missions are generally regulated by the Social Services Act (Sw: Socialtjäntlag (2001:453)) but also by other pieces of legislation, for instance, for children in problematic family or social situation, the Act on Care of certain Young Persons (Sw: Lag (1990:52) med särskilda bestämmelser om vård av unga).
- 26.
The task consists in supplying assistance at home to elderly persons in need of it, see Chapter 5 Section 5 first paragraph in the Social Services Act.
- 27.
This task is subject to provisions in the Social Services Act, named above, but also in other legislation such as the Act on support and service to persons with disabilities (Sw: lag (1993:387) om stöd och service till vissa funktionshindrade).
- 28.
Education Act (Sw: Skollag (2010:800)).
- 29.
This task consists in setting up special housing for elderly persons in need of special care, see Chapter 5 Section 5 second paragraph in the Social Services Act.
- 30.
Chapter 5 Section 3 in the Social Service. The main task within this social service is to contribute to solving conflicts and problems in family and couple relations through therapeutic conversation.
- 31.
To persons living in their own ordinary housing who need support because of handicap or addiction problems.
- 32.
Whether the public authorities or the individuals themselves may evaluate this need is another question.
- 33.
Chapter 14 Article 2 of the Instrument of Government.
- 34.
Chapter 2 Section 5 of the Local Government Act, referring to Chapter 14 Section 4 Instrument of Government.
- 35.
Chapter 1 Article 2 Instrument of Government.
- 36.
A commission of inquiry was set up directly after the adoption of a new Instrument of Government to examine in detail the constitutional status of fundamental freedoms and rights. It was this commission that proposed the introduction of the provision under in Chapter 1 Section 2 of the Instrument of Government, see report of the commission of inquiry on fundamental rights “Medborgerliga fri- och rättigheter—Regeringsformen” SOU 1975:75.
- 37.
For a very detailed account of the political and legal debates underpinning the preparatory works that eventually led to the introduction of the provision in Chapter 1 Section 2 of the Swedish Instrument of Government, see Lind 2009, pp. 52–76.
- 38.
The following modifications were introduced through the latest broad modification of the Instrument of Government, in force since 2010: under para 2 “secure the right to health” was replaced by “promote favourable conditions for good health”, in para 4 a specific duty to promote the opportunity “for the rights of the child to be safeguarded” was introduced, in para 5 the Sami people is specifically named.
- 39.
Lind shows that the preparatory works and proposals discussing this provision only give a summary analysis of its practical significance. See Lind 2009, p. 76.
- 40.
Report of the commission of inquiry on fundamental rights “Medborgerliga fri- och rättigheter—Regeringsformen” SOU 1975:75, p. 163.
- 41.
Ibid.
- 42.
Even socio-democrats, who drove forward the adoption of this constitutional provision, were against binding rules both on positive and negative rights. Their view was that it could freeze political reforms, and that the establishment of a minimum level in the Swedish constitution would not give a correct picture of further developments in that field. See Lind 2009, p. 73.
- 43.
Back in 1978, Petrén went further and held that no law can guarantee a right to good care, employment, housing etc., a statement which may be questioned, in particular in the light of the Swedish Act on support and service to persons with disabilities (Sw: lag (1993:387) om stöd och service till vissa funktionshindrade), which gives disabled persons an opposable right to assistance and support allowing them to a good standard of life. See Petrén 1978, p. 29.
- 44.
Petrén 1978, pp. 30–31.
- 45.
Government Bill on certain modifications to the Instrument of government, Ändringar i regeringsformen—samarbetet i EU m.m., proposition 2001/02:72, pp. 15–16.
- 46.
Such a psychological effect was envisaged in the report of the commission of inquiry on fundamental rights “Medborgerliga fri- och rättigheter—Regeringsformen” SOU 1975:75, p. 13.
- 47.
Report of the commission of inquiry on fundamental freedoms and rights “Medborgerliga fri- och rättigheter—Regeringsformen” SOU 1975:75, pp. 183–184.
- 48.
Government Bill on municipal housing companies, Allmännyttiga kommunala bostadsaktiebolag och reformerade hyressättningsregler, proposition 2009/10:185, pp. 12–13.
- 49.
This is particularly clear from Chapter 3 Section 2 Para 2 in the Swedish Act on Social Services laying down that “the Social board must in the frame of its activity promote the individual’s right to labour, housing and education.”
- 50.
See the report of the commission of inquiry on the reform of the constitution “En reformerad grundlag” SOU 2008:125 del 1, pp. 47–48. Bergström has described the introduction of this provision as a “small revolutionary step”, because it gives constitutional status to the Sweden’s membership in the EU. Bergström 2009, p. 204; see also the Comments from the Swedish Institute for European Political Studies (Sieps) on the report of the commission of inquiry on the reform of the Swedish constitution “En reformerad grundlag” SOU 2008:125, Dnr 16/2009, http://www.sieps.se/sites/default/files/Remissvar_sou2008_125.pdf, accessed 27 February 2015.
- 51.
Wenander 2011, p. 549, and his references to legal scholars’ positions in this debate, under footnote 68.
- 52.
In the government Bill on the Social Services Act, it was recalled that some form of legal regulation giving individuals a right to livelihood support has existed since the 18th century, with the Enlightenment’s idea that the state has welfare duties towards its citizens, this “membership” implying rights but also duties. It also underlined that the notion of “social rights” had been used as a legislative instrument to build up the welfare state, by expressing the need of distributing society’s resources and as an instrument to solve conflicts between the interests of individual and of public authorities. See government Bill on the Social Services Act, Ny socialtjänstlag m.m., proposition 2000/01:80, p. 81. The goal of cohesion is confirmed by the existence of a compensation system equalizing LRAs’ economic resources and allowing them to supply their members with equivalent standards of welfare services.
- 53.
The only general exception from the obligation to apply the procedures provided for by the Swedish procurement rules is for low-value contracts, i.e. contracts with a value of less than 28 % of the threshold values.
- 54.
Section 5 paras 2 and 4 of the Health and Medical Services Act.
- 55.
Chapter 1 Section 1 second paragraph of the Act on Systems of Choice (Sw: lag (2008:962) om valfrihetssystem, LOV) entered into force 1st January 2009. This provision clarifies also that the contracting authority does not need to apply the same system of choice within all services affected. The Act does not only cover social services under LRAs’ competence. The Swedish Public Employment Service may apply the Act when procuring services within its labour-market activities, and since 1 May 2010, establishment of systems of choice is mandatory for some of its activities focusing on recently arrived immigrants. The Swedish Competition Authority has been given the task to supervise the establishment of systems of choice.
- 56.
The national website is www.valfrihetswebben.se.
- 57.
In that sense, these systems are “open”. A provider may be excluded pursuant to Chapter 7 Section 1 of the Act.
- 58.
See the government Bill on the Act on Systems of Choice, Lag om valfrihetssystem, proposition 2008/09:29, p. 80.
- 59.
Ibid.
- 60.
In the field of health care and social services, common boards are generally subject to provisions in the Local Government Act, and may be used to take care of services listed in the Act on common board in the field of health care and social services (Sw: lag (2003:192) om gemensam nämnd inom vård- och omsorgsområdet).
- 61.
See Chapter 2 Section 5 of the Social Services Act and Section 3 para 3 of the Act on Health and Medical Services.
- 62.
See for instance the report of Grant Thornton Sweden AB on the development of the markets for health care and care in Sweden “Den privata vård- och omsorgsmarknaden ur ett finansiellt perspektiv—Hur mår den privata vård- och omsorgsmarknaden i Sverige?” November 2012, accessed 27 February 2015 at http://www.grantthornton.se/Global/Dokument/Publikationer/Rapporter/2012/V%C3%A5rdstudie%202012.pdf, The existence of these markets is not only well-known in Sweden, but in fact has been the main subject of the national elections in September 2014, with a focus on the profits made by some operators (four private companies made together a profit of 590 million kronor for 2013, according to an article of Jan Almgren, “Flera välfärdsjättar återinvesterar vinsterna” Svenska Dagbladet Näringsliv (Stockholm, 9 October 2014).
- 63.
Government Bill on a new Local Government Act, En ny kommunallag, proposition 1990/91:117, pp. 32–33.
- 64.
In fact, if the term “commercial activity” in Chapter 2 Section 7 LGA was understood as covering social services, the point of departure expressed in the government Bill to the Local Government Act of 1991, regarding LRAs’ engagement in business sectors as a matter of exception, would place LRAs’ mandatory competence for social services in the category of “exception”, which from a political and constitutional point of view would probably be problematic. The Swedish legislator would have the tricky task to explain how a competence directly connected to the constitutional mission of public authorities to promote social rights can be allowed “by exception”.
- 65.
This provision was also introduced in the Local Government Act in 1991 but regarded as consolidating case law, see Lindquist 2011, p. 363.
- 66.
Indén 2008, pp. 50–51.
- 67.
This was brought to the Swedish government’s attention by the report put forward by the law firm Öberg and Associés (hereafter the “Öberg report”) on the request of the committee of inquiry on LRAs’ competence, and included in the report of the commission of inquiry on LRAs’ competence “Kommunal kompetens i utveckling” SOU 2007:72, and entitled “Opinion on the relation between Chapter 2 Section 8 LGA and EC state aid rules” (Sw: Utlåtende avseende förhållandet mellan 2 kap. 8 § kommunallagen och EG:s statsstödsregler). The committee proposed not to adapt the provision in Chapter 2 Section 8 § LGA to EU law, based on a view that the Swedish aid prohibition is more restrictive than the state aid rules in EU law, a view that is questionable, but not discussed here.
- 68.
Report of the commission of inquiry on LRAs’ competence “Kommunal kompetens i utveckling” SOU 2007:72, p. 68 and the Öberg report, p. 5.
- 69.
In particular, the private operator had only been charged for equipment, and not for the municipal entity’s goodwill, see the judgment of the Supreme Administrative Court, RÅ 2010 ref. 100 (Stockholm kommun).
- 70.
It is important to underline that while judgments from the Supreme Administrative Court set precedent in Swedish law, judgments from the administrative courts of appeal do not, and are merely “indicative”.
- 71.
Judgment of the Administrative Court of Appeal, Kammarrätten i Stockholm, KR nr 584-08 (Täby kommun).
- 72.
Judgment of the Administrative Court of Appeal, Kammarrätten i Stockholm, KR nr 3801-09 (Sollentuna kommun).
- 73.
A solution might be to stop using the expression “genuine commercial sector”, which nowadays appears to be a source of incoherence.
- 74.
Sw: Lag (2007:1091) om offentlig upphandling.
- 75.
Government Bill on new procurement Acts in the public sector and in the utilities sector, Ny lagstiftning om offentlig upphandling och upphandling inom områdena vatten, energi, transporter och posttjänster, proposition 2006/07:128, p. 147.
References
Bergström CF (2009) Grundlagsutredningen och EU. Europarättslig Tidskrift nr 2/2009
Cyndecka MA (2015) The applicability and application of the market economy investor principle. University of Bergen, Norway
Indén T (2008) Kommunen som konkurrent, Kommunalrättsliga befogenheter och konkurrensrättsliga begränsningar. Skrifter från juridiska institutionen vid Umeå universitet, Iustus Förlag, Uppsala
Lind A (2009) Sociala rättigheter I förändring – en konstitutionell studie. Uppsala universitet
Lindquist U (2011) Kommunala befogenheter. Norstedts Juridik, Stockholm
Petrén G (1978) Vägen till en svensk rättighetskatalog, in Skrifter till minne av Halvar G.F. Sundberg. Institutet for offentlig och internationell rätt, Stockholm
Wenander H (2011) En princip om internationell öppenhet – 1 kap. 10 § regeringsformen och socialförsäkringsrätten. Förvaltningsrättslig Tidskrift, Särtryck ur häfte 3/2011
Author information
Authors and Affiliations
Corresponding author
Rights and permissions
Copyright information
© 2016 T.M.C. Asser Press and the author
About this chapter
Cite this chapter
Wehlander, C. (2016). Social Services Under the Competence of Swedish Local and Regional Authorities: SGEI?. In: Services of General Economic Interest as a Constitutional Concept of EU Law. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-117-3_8
Download citation
DOI: https://doi.org/10.1007/978-94-6265-117-3_8
Published:
Publisher Name: T.M.C. Asser Press, The Hague
Print ISBN: 978-94-6265-116-6
Online ISBN: 978-94-6265-117-3
eBook Packages: Law and CriminologyLaw and Criminology (R0)