Normprövning genom fastställelsetalan - en studie inspirerad av Unibetfallet om civilprocessuella möjligheter till åsidosättande av mot gemenskapsrätten stridande nationell rätt

Sammanfattning: This paper is very much inspired by an ongoing process in the Swedish court system. According to Unibet, an online betting company, the Swedish law on lotteries conflicts with EC law. Therefore, Unibet has brought an action against the Swedish state seeking, firstly, a declaration that it has the right, pursuant to Article 49 EC, to promote its gaming and betting services in Sweden and is not prevented from doing so by the prohibition under Section 38 of the Law on Lotteries, secondly, compensation for the damage suffered as a result of that prohibition on promotion. Among other aspects, this process has high lightened fundamental questions on judicial review. In this paper, I examine how an individual can bring a law suit that includs judicial review of the conformity of national legislation with higher-ranking legal rules. Chapter 11 section 14 of the Swedish Constitution (regeringsformen) is under Swedish law the main section for judicial review. Under this section, a court may, if it considers that a national provision conflicts with a rule of constitutional law or other higher-ranking rule, not apply that provision in a particular case. A requirement is that there has to be a real dispute involving the disputed legislation. The section itself is also directed to the Court, not to individuals. In the Swedish legal system, there also exists other ways to get judicial review. Under the first subparagraph of Section 2 of Chapter 13 of the Code of Judicial Procedure (rättegångsbalken), an action may be brought to determine whether a legal relationship exists between the defendant and the applicant where such a relationship exposes the latter to detriment. Under the second subparagraph of that section, the application may be considered if it relates to whether such a relationship exists. I found out, that it is possible to try the constitutionality of a national provision as long as the application is about whether a legal relationship exists between the parties. One could get a constitutionality test of a provision, but the declaratory judgment should not aim to get one. Instead, the application needs to be aimed at the existence of a legal relationship. But in some cases, to determine the legal relationship between the parties, the Court has to examine whether the national statue is in conflict with the EC law or not. This paper also deals with the question about how rights are understood in the Swedish legal system. My result is that the existence of a specific right is highly connected to whether or not this right is protected by a legal sanction. According to the Swedish legal tradition, a right exists if it has legal protection. The Swedish tradition seems to be totally contrary to the legal tradition in an EC context. In the EC legal system, one seems first to declare that a right is a right by giving it direct effect. Thereafter, if a right has gotten direct effect, the legal system is supposed to protect the right and give it a sanction.