In Case 2548-21 before a national administrative court in Sweden 🇸🇪, an applicant sought to bring a case to the national courts against an adverse decision against him, even though the body that made such a decision was an incorporated private body, and not a public body.
In order to be certified as an energy expert (energiexpert) in Sweden, for example, when certain types of new building construction is to take place 🏢🏗️🏠, an energy declaration has to be undertaken by a sufficiently competent independent expert. Such persons are certified by a private body, who makes decisions.
In the case at hand, during a re-certification process, the private body declined the application for re-certification, and the person in question exhausted the internal appeals mechanisms within the private body. They, furthermore, were told decisions could not be appealed outside the body, and there was no explicit manner to affirm that decisions could be appealable to courts.
In a recent decision by the Administrative Court of Växjö (Förvaltningsrätten i Växjö, Sveriges Domstolar) 🇸🇪, the national court confirmed that such decisions are in fact appealable. According to the Växjö court, given that the private body in essence performs tasks under public law as an emanation of the state, there must be a right of judicial review.
What is most curious is the reasoning offered for this judgment. For the court, what is essentially a public administration task must not result in the fundamental rights of individuals being restricted, and therefore, to grant allow for judicial review would be a breach of Article 6 of the ECHR (right to a fair trial). It is apparent that EU law did not prominently feature, despite the emanation of the state doctrine comes under EU law also, and that certification for new buildings has to be done under applicable EU law.
A summary of the judgment of the Administrative Court of Växjö in Case 2548-21 can be accessed at the following link: https://lnkd.in/d2mHMstc (på svanska).
Graham Butler