1.1 So close, but yet so far away…
The legal systems in the Nordic countries
Comparing environmental decision-making in different countries is not an easy task. Even in legal systems that we regard as relatively close, there are basic differences “under the surface” which may have an effect on the understanding between the systems. One such difference relates to constitutional traditions. Among the Nordic countries, constitutionalists talk about the “western” tradition in Denmark, Norway and Iceland, and the “eastern” tradition in Sweden and Finland. This division goes back to the Kalmar Union between the aristocracies in the Nordic area. After the breakup in 1523, two national states emerged; Denmark and Sweden, more or less constantly in political and armed conflict with each other for more than 200 years. Norway was united with Denmark until the peace treaties after the Napoleonic wars in 1814, according to which the country was forced into a union with Sweden. Norway broke from this union in 1905. Iceland on its part, became independent from Denmark in two steps, in 1918 and 1944 respectively. Finland was part of Sweden until 1809 when the country became a Grand Duchy under the Russian Czar, winning independence after the Russian revolution in 1917. As this development took place in an era when the basis for the modern national states in the Nordic countries were founded, it is reflected in two distinct constitutional traditions. Denmark, Norway and Iceland belong to the western tradition, whereas Sweden and Finland belong to the eastern. Today, this division may seem obsolete, but it still has an impact on issues such as the relationship between the Government and the administration, the independence of the municipalities, and the role of the courts. For example, Sweden and Finland have both general courts and administrative courts, while Denmark, Norway and Iceland only have general courts. Since the environmental appeal procedure in an administrative court is “reformatory” – meaning that the court decides on the merits of the case anew – the concept of “decision-maker” differs between the countries having such courts and those countries where ordinary judicial review (legality control) is performed by the general courts.
There are obviously other differences between the Nordic countries that play a certain role when it comes to environmental legislation and decision-making. The basic structure of our industry and commerce varies, which affected the focus area of early environmental legislation from the 1970s. Denmark with its heavy dependence on ground water and dense population was one of the pioneers concerning liability for contaminated land, whereas Sweden was one of the first in Europe that introduced a modern permit regime for controlling discharges from industrial activities. Similar examples from Norway, Finland and Iceland can be found as well. Even so, today’s environmental law is very similar in our countries, not least as a result of international agreements and EU law. Denmark has been a member of the Union since 1973, Sweden and Finland joined in 1995. Norway and Iceland are not members, but bound to most of EU environmental regulation by the European Economic Agreement (EEA). Thus, those two countries have agreed to abide by most of the EU laws on the environment, such as the Industrial Emissions Directive (2010/75, IED), the Waste Framework Directive (2008/98), the Water Framework Directive (2000/60, WFD), as well as both the EIA Directive (2011/92) and the SEA Directive (2001/42). Concerning EU regulation relevant for this study, only the two “nature directives” – that is the Birds Directive (2009/147) and the Habitats Directive (92/43) – are exempted from the EEA agreements with Norway and Iceland. Thus, formally, all the Nordic countries are bound by much the same overarching regulation.
However, there is a major difference between being a member to the Union and being connected to it only through the EEA. For most part, this difference concerns the enforcement of law. It is true that the EFTA Surveillance Authority (ESA) has the same role as the EU Commission and that the EFTA court closely follows the case law of the Court of Justice of the European Union (CJEU), but the influence of the EFTA institutions in Norway and Iceland is more indirect. Through the doctrine of direct effect, regulations and provisions in directives which are unconditional and sufficiently precise take precedence over conflicting national legislation in the EU member states. The national courts in Denmark, Sweden and Finland are therefore obliged to apply such pieces of EU law directly, setting aside the national regulation on the issue in question. This is not the situation in Iceland and Norway as the EEA does not create supranational powers for its institutions. According to the EEA Agreement, legislative power is not delegated to the international institutions, which means that EU law needs to be implemented into national law. Thus, EU law does not have priority over other Norwegian or Icelandic legislation. Surely, the courts in those two countries must give considerable weight to EU regulations when interpreting national law, but not so much as to set aside clear national legislation. Moreover, judgements from the EFTA court are not legally binding; they are regarded as recommendations only in individual cases. Thus, the supreme courts in Norway and Iceland have the final say in cases concerning EU law, and there is even an example where the Norwegian Høyesterett departed from a judgement of the EFTA court. As for the legal value of judgements from the CJEU, it may be important whether they have been delivered before or after the EEA agreement was signed, although they usually are taken into account. Another important difference between the EU system and the EEA agreement is that the ESA cannot sue Iceland or Norway for fines for breach of the EU legislation covered by the EEA agreement.
European Union membership also has an effect on how international agreements are implemented and understood within the national legal systems. All the Nordic countries have a “dualistic” approach to the overarching instruments, which basically means that the international agreement must be implemented in national black letter law to become binding. For the members of the EU, however, things are not that simple when it comes to agreements that are signed both by the member state and the Union, which is the case concerning most conventions on the field of environmental law. This can be illustrated by the Convention on the Conservation of European Wildlife and Natural Habitats, the so-called Bern Convention. This Convention is signed by all European countries. In the EU, it is implemented through the 1979 Birds directive (2009/147) and the 1992 Habitats Directive (92/43). For members to the Union, this implies that the CJEU’s case law under those two directives is directly relevant for the understanding of the international agreement. And what is more, sufficiently precise and unconditional provisions in that Convention – such as the strict protection of certain animal species – have direct effect in those countries. The wolverine is for example protected under Bern, but was “forgotten” when Sweden and Finland negotiated with the EU for accession. As this species did not exist in any of the member states at that time, it was not listed under the Habitats Directive. Irrespective of this, it enjoys the same protection as strictly protected species under that Directive, as it listed under Bern. This stands in sharp contrast with the EEA agreements with Norway and Iceland, where, as already noted, the Birds Directive and the Habitats Directive were not included. Even so, both countries are signatories to Bern. But Bern is not equipped with a Commission with enforcement competence, only a Standing Committee with more of a diplomatic role to play. Thus, the understanding of the obligations of Bern is exclusively a matter for the supreme courts of Norway and Iceland to interpret. This is especially so as the jurisprudence of the CJEU in cases under the two nature directives of EU law is not regarded as “state practise” according to international law in Norway. At the end of the day, the obligations under Bern for EU member states are for the CJEU to decide, whereas for Norway and Iceland it is purely a matter for the national courts to decide according to the implementation legislation.
A final difference that is worth mentioning, even though it may be of less relevance for this study, is the position of the Sami people. The Sami – residing in Norway, Sweden and Finland – are the only indigenous peoples on the European continent. They enjoy international protection for their living, culture and land-use rights in those countries. Norway has signed and ratified the Indigenous and Tribal Peoples Convention of 1989, the so-called ILO Convention 169, whereas Sweden and Finland have declined to do so as of yet. Even so, the protection of Sami land-use rights has gained attention from the national courts in recent years. In 2020, the Högsta Domstolen declared that although the ILO 169 has not been ratified by Sweden, it shall be used as an international standard for the protection of Sami rights. The year after in Norway, the permits for the two biggest wind farms in Europe were declared void as the decision-making procedure had not respected the cultural rights of the Sami people in the area according to Article 27 of the International Covenant on Civil and Political Rights (ICCPR). Following the same line of reasoning, the Sami interests in Norway, Sweden and Finland will need to be taken into account in environmental decision-making on different development projects, perhaps most notably concerning mines, forestry and wind farms.
Having listed all the differences between the systems in the Nordic countries concerning legislation and administration in environmental matters, one must not forget the similarities as well. In all our countries, environmental law basically belongs to the public law area when it comes to the design of regulations, decision-making and enforcement, as well as the method for interpreting legal obligations. We are also signatories to all the international instruments concerning the common environment, such as the 1974 Convention on the Protection of the Marine Environment of the Baltic Sea Area, the so-called HELCOM. The 1974 Nordic Convention on the Protection of the Environment contains procedural rules on the permitting of activities having transboundary effects, something that sometimes is relevant for the situations discussed in this study. And finally, in order to give the full picture, the societies in our countries are rather similar and there is a mutual understanding between the environmental administrations among the neighbours.