Sweden

• Author: Per Henrik Lindblom
• DOI: 10.1177/0002716208328548
• Published date: 01 March 2009
• Date: 01 March 2009
• Subject Matter: Articles

Various forms of representative group litigation have
existed for decades in the special Labor and Market
Courts, initiated by private organizations such as trade
unions and the Consumer Ombudsman. A “true” class
action, brought in a general court by a member of a
group, or by an organization, or an administrative
agency (e.g. the Consumer Ombudsman)—allowing
claims both for injunctive relief and individual damages
for group members—was introduced in Sweden by the
Group Proceedings Act, which entered into force on
January 1, 2003. This is an opt-in procedure.
Sweden
Keywords: access to justice; class action; private group
action; organization action; public action;
opt in; certification; risk agreement
By
PER HENRIK LINDBLOM
1. The Swedish Civil
Litigation System
Scandinavian private law in a restricted sense
(contracts, torts, etc.) is seen as a variant of civil
law in all Scandinavian countries, but proce-
dural law is different. A few typical features of
civil law procedure are present, but some—not
all—of the characteristics of common law pro-
cedure are discernible. The adversary principle
is upheld in civil cases amenable to out-of-court
settlement. An extremely concentrated trial
built on the requirements of orality, immediacy,
and concentration is the norm; all oral evidence
is taken during “the main hearing” (the trial).
Trial and witness examination (direct, cross, and
redirect) in Swedish courts resemble their
Anglo-American counterparts, but examination
techniques are not as extensively developed. In
contrast, other features of common law, such as
pretrial discovery and group actions, were absent
from Swedish general courts for a very long
time. The general courts handle civil and crimi-
nal cases.
Per Henrik Lindblom is Professor Emeritus in civil and
criminal procedure and former dean of the Faculty of
Law, Uppsala University, Sweden.
DOI: 10.1177/0002716208328548
ANNALS, AAPSS, 622, March 2009
231

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232
THE ANNALS OF THE AMERICAN ACADEMY
In Sweden, the English rule on costs is ordinarily applied. The losing party has
to pay the winning party’s costs, including attorney’s fees. The exception is small
claims cases (maximum value of about €2,000), where the American (no fee) rule
on costs applies: the parties have to abstain from counsel or pay their own attor-
ney’s fees, win or lose. New rules on legal aid and economic possibilities to initi-
ate proceedings were introduced for almost everyone in the 1960s and 1970s (the
“first wave” of the access to justice movement). Public legal aid has been cut back
in recent years and replaced by private litigation insurance—usually limited to a
maximum of about €10,000—to cover the losing party’s costs and the obligation
to pay the costs of the winning party in cases worth more than €2,000. Third-
party payers are permitted to provide funds up front to potential plaintiffs.
2. Current Options for Representative
and Group Litigation
There are no special rules like the English Group Litigation Order (GLO) in
Swedish law on nonrepresentative group litigation. The options for intense case
management and pleadings, scheduling, development of evidence, motion prac-
tice, test cases, handling of preliminary matters, and so on are the same in all
individual civil cases. Test cases offer no special alternatives; the proceedings are
the same as usual, and the judgment has legal force only between the formal par-
ties. Of course, several similar individual cases are sometimes handled at the same
time, by the same judge. The applicable rules on joinder of parties and consolida-
tion of cases in chapter 14 of the Code of Judicial Procedure (CJP) are about the
same as when the Code came into force in 1948. Some rules on joinder and con-
solidation are mandatory. All parties act for themselves only, but sometimes
through joint counsel. Since 1987, the Supreme Court has had the right to permit
joinder and consolidation even between cases pending in two or more district
courts or courts of appeal and decided by one of them (chap. 14 Sect 7 a). This
option is rarely used.
Representative group litigation is currently available in the special courts (pub-
lic actions and organization actions) and the general courts (private class actions,
public actions, organization actions).
3. Public and Organization Actions in the Special Courts
Various forms of representative group litigation have existed (without debate)
for decades in the special courts. However, only public and organization group
actions are permitted. Sweden has two special courts: the Labor Court and the
Market Court. The esteemed Labor Court (Arbetsdomstolen) was established in
1928 and is of great importance. Procedural rules are largely consistent with the
CJP but include what might be called a radical form of organization action.

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SWEDEN
233
A large majority of all workers in Sweden are union members. Unions have pri-
mary standing as plaintiffs—and standing with their members as defendants—in
the Labor Court in individual and collective disputes concerning the interpreta-
tion of collective agreements. Individual members are bound by the judgment
and have a right to intervene in the action. They also have secondary standing: if
the union decides not to take action, the individual member may initiate pro-
ceedings in a general court of first instance, whose rulings may be appealed to
the Labor Court. Public actions in the Labor Court may be initiated by the
Ombudsmen against Discrimination, who have secondary standing in certain
cases. The Labor Court decides about three hundred cases as the first and last
instance and about one hundred appeals from the general courts every year.
The Market Court (Marknadsdomstolen) almost exclusively hears public
actions, along with a few organization actions, but no (private) class actions. The
court has sole jurisdiction in disputes concerning the Marketing Practices Act,
the Consumer Contracts Act, and the Competition Act. The cases brought before
the Market Court are of a purely prospective nature. For instance, a judgment
forbidding certain contract clauses does not affect the validity of preexisting con-
tracts. Claims for damages are not permitted, and individual consumers have no
standing in the Market Court; standing is granted to the Consumer Ombudsman
and the Ombudsman for Free Trade. These government agencies have primary
standing; only if they decide not to go to the Market Court can individual mer-
chants, or organizations of consumers or merchants and labor unions, take action.
Thus, contrary to the situation in the Labor Court, organizations only have sec-
ondary standing. For its first twenty years, about twenty public actions and one
organization action were brought before the court every year. The Market Court
now hears about fifty cases a year, mainly related to the Marketing Practices Act
and brought by the Consumer Ombudsman.
4. Class Actions, Public Actions, and
Organization Actions in the General Courts:
The Swedish Group Proceedings Act
...