The laws concerning higher education
On this page you can read about certain features of the Administrative Procedure Act which are of importance for you as an employee at Lund University. As it is not possible for the Legal Division to describe in brief the entire content of the act or its application, here are a few selected parts that are relevant to the activities of the University.
In case of uncertainty as to how to interpret the Administrative Procedure Act, please contact the Legal Division. We also offer in-house education in the subject area – please contact us with your request.
Important parts of the Administrative Procedure Act
-Click the links below to read more about the most important new features of the Administrative Procedure Act. All the links will open in the same window.
- Basic principles
- Application of the Administrative Procedure Act
- Access for involved parties
- Conflicts of interest
- Fast processing requirements
- Obligation to use an interpreter and to translate documents
- Opening of a case
- Duty to investigate
- Decisions by public authorities
Here you will find a link to the Administrative Procedure Act (2017:900) (opens in the same window) (in Swedish) on the Swedish Parliament's website.
On the website of the Government Offices of Sweden you can also read The government bill 2016/17:180, A Modern and Legally Secure Administration – the New Administrative Procedure Act, which you can reach by clicking here (opens in the same window) (in Swedish), if you, for instance, is seeking an explanation so to why a rule is phrased the way it is.
In the Administrative Procedure Act certain general and basic principles of administrative law (legality, objectivity and proportionality) are established.
The first, the principle of legality, means that a public authority is only allowed to take such actions as is mandated by law.
The principle of objectivity means that a public authority shall be impartial and objective, id est that the public authority must not let itself be influenced by a desire to further or give a party a disadvantage.
When speaking about proportionality a public authority is not allowed to use measures more intervening than what is neccessary, id est there needs to be a balance between objectives and means.
As a main rule, the rules of the Administrative Procedure Act shall be applied to all cases processed by a public authority. However, there are exceptions made regarding some of the rules for specific types of cases in the Administrative Procedure Act as well as in special legislation (for the University, this mainly refers to the Higher Education Act and Higher Education Ordinance). The Administrative Procedure Act prescribes a lowest limit basis for processing of cases by public authorities. Stricter rules may be found in other legislation. Other legislation takes precedence over the Administrative Procedure Act.
The rule regarding access for involved parties entails that a party has the right to access all material brought into a case, regardless of the type of case. (With certain exceptions when it comes to classified material). One example is matters of grading where the examinator receives material from a supervisor at an internship. As a general basis the student does not need to be informed about the material or be given the opportunity to comment on the material, since matters of grading are excempt from the obligation to communicate in the Administrative Procedure Act (se further information under the heading Communication). If the student however so requests, he or she is entitled to take part of the material. This is so due to the principle of access for involved parties.
It is important that the public has trust in its administrative authorities and the Administrative Procedure Act makes it clear that authorities are to be objective and impartial in their operations. Therefore, the rules state that a person with a conflict of interest must not take part in the processing of a matter in a way that could influence the decision made by the administrative authority, nor can the person be present when the matter is determined. Any circumstance that could lead to the questioning of an administrative officer’s impartiality constitutes a conflict of interest. Several examples of these kinds of circumstances are laid out in the Act. These are when an administrative officer or someone close to them is a party in a matter or can be assumed to be affected by the decision to a not insignificant extent; when an administrative officer or someone close to them is a representative or counsel for a party in the matter or someone else who can be assumed to be affected by the decision to a not insignificant extent; when an administrative officer has already participated in the final processing of the matter at another authority and has, as a result of this, already taken a position on the questions to be examined by the authority as a superior instance. There can be other circumstances that can lead to the questioning of an administrative officer’s impartiality. Examples include when an administrative officer is an obvious friend or foe of a party to the matter, or when the administrative officer is engaged in the matter in such a way that suspicion may arise as to their lack of impartiality. The term administrative officer in these situations includes decision-makers or others who participate in the processing of a matter in a manner that can impact the decision of the authority. Judgement is made on a case-by-case basis. Any person aware of a circumstance that can be assumed to constitute a conflict of interest must immediately notify the authority of this. The disqualified person can then excuse themselves from the processing of the matter, or be replaced by someone else if necessary. Otherwise, the authority is to take a decision on the matter of impartiality as soon as possible. Such a decision can be taken by the body that decides on the matter where the conflict of interest has arisen, or by a function at the same level or higher.
Pursuant to the Administrative Procedure Act, cases are to be processed as efficiently, quickly and inexpensively/cost-effectively as possible without compromising legal certainty. A feature of the act is that an individual who initiates a case may request that the public authority decides on the case if this has not been done in the first instance within six months. Such a request must be made in writing. The public authority will then have four weeks from the date of the request to either decide on the case or to reject the case through a special decision. Such a rejection may subsequently be appealed by the party to the higher court or other public authority which may handle an appeal by the decision-making authority in the specific case (for decisions made by the university this is most often The Higher Education Appeals Board).
According to the Administrative Procedure Act there is an obligation to use an interpreter and to translate documents when the public authority is in contact with someone who does not speak Swedish, so that he or she may claim their right. What this entails specifically in different types of matters, for example in employment matters or matters regarding credit transfers, is not established at the present so any further guidance will hopefully come from future decisions. The same obligation, to use an interpreter and to translate documents, applies if the public authority is in contact with someone with a disability that severely limits their ability to see, hear or speak.
In the Administrative Procedure Act there are explicit provisions on how to open a case. Under the act, an individual may open a case at a public authority through an application, report or other request. The request shall contain information about the person’s identity and contact details. Furthermore, the request is to state what the matter concerns, what the individual wants the public authority to do and, as a main rule, the circumstances underlying the individual’s request. If the request is incomplete or unclear, the public authority shall primarily offer assistance in correcting the request to the individual. However, if the deficiencies in the request are unresolved, to an extent that it prevents the public authority from processing the matter, the public authority may impose a requirement for the individual to correct any deficiencies. In such cases, the public authority must state that if the deficiency is not corrected, the individual’s request may not be considered at all.
The Administrative Procedure Act explicitly regulates the public authority’s duty to investigative. The rule is designed so that the requirements for the extent of any necessary investigative measures vary, depending on the nature of the case concerned. The act also includes the rule that if an individual opens a case, they are required to actively participate in and contribute to the investigation. Furthermore, pursuant to the act, if a public authority finds that there are deficiencies in terms of what was submitted into the case, the public authority shall, through questions and remarks, urge the party to rectify any uncertainty.
According to the Administrative Procedure Act, a public authority shall, before making a decision on a matter, inform the party of all material relevant to the decision, unless this is clearly unnecessary. The public authority shall also give the party an opportunity to comment on the material within a certain time frame. There are however in some specific cases exceptions to the obligation to communicate material. For example, if the case concerns employment of a person. The same applies for cases of admissions and grading. The exception to the obligation to communicate regarding the latter two types of cases you will find in the Higher Education Ordinance.
Justification of decisions
Under the Administrative Procedure Act, a public authority is obliged to justify its decisions. The obligation to state the reasons for a decision applies to all decisions which are believed to affect someone’s situation in a more than insignificant way. The decision shall state the legal provisions on which it is based. The public authority shall also account for the circumstances that have been decisive for the outcome of the case, in a way that is understandable to the individual. A justification is however not required when clearly unnecessary, id est when an objective assessment would find it unnecessary, such as a decision completely in the party’s favour.
There are some exceptions to the justification obligation. If the decision concerns employment, for example, an exception can be made. The same applies when it comes to decisions concerning admission and grading. Such exceptions you will find in the Higher Education Ordinance.
Notification of decisions
When a public authority announces a decision in a case, the party of said case shall be informed of the full content of the decision (unless it is clearly unnecessary). This should be done as soon as possible.
Correction and change of decisions
Decisions taken by public authorities sometimes need to be changed. This may be necessary in the case of a mistake or oversight, or if new circumstances have emerged which means that the decision would have been different if the circumstances had been known from the outset. There may also be circumstances following the decision which make it seem inappropriate or incorrect.
A decision can always be corrected before it is expedited or otherwise made available to a third party. However, after the decision has been expedited or made available, decisions may only be corrected or changed under special circumstances.
Correction refers to adjustments that do not constitute a change of substance. Decisions that contain obvious typing or calculating errors or other similar oversights can be corrected. Corrections should be made if the error is of practical significance for a party of the case.
Change refers to other types of amendments. Changes can be made if the public authority finds that a decision is incorrect due to new circumstances or any other reason. If the decision is favourable to a party (benefitting the individual in some way, for example a grading decision), it may be changed to the detriment of the party only:
• if the decision states that it may be revoked under certain conditions, (for example a course can only be cancelled if the admittance decision states that this is a possibility if the course does not have a certain number of applicants),
• if, for imperative safety reasons, the decision needs to be changed immediately (for example due to consideration to human and animal life and health, property), or
• if the error is due to the party having provided false or misleading information.
Changes shall be made if the public authority finds that a decision is obviously incorrect in a significant way due to the emergence of new circumstances or for some other reason, and the decision can be amended quickly and easily without resulting in a disadvantage to any individual party.
In other cases, decisions which can be appealed may be changed by a higher authority following an appeal.
As a rule, public authorities are to inform the party of a case before a correction or change of a decision is made. As with the provisions concerning notification of decisions, the party concerned shall be informed of a corrected or amended decision.
In the Administrative Procedure Act there is a general rule regarding the types of decisions which may be appealed. A decision may be appealed if the decision is likely to affect someone’s situation in a more than insignificant way. The provision allows for a relatively broad interpretation and does not provide any examples of which decisions it may refer to. This means that decisions on advice, instructions, recommendations and similar occurrences can also be appealed if the decision has, or is expected to have, a real impact on someone’s situation. However, the impact must be of a somewhat qualified nature.
Please note that even if we, as a public authority, change the decision which has been appealed completely in accordance with the appeal, we are still obligated to send the appeal together with the changed decision to the superior body.
For questions about the laws concerning higher education, contact:
johanna [dot] alhem [at] legal [dot] lu [dot] se (johanna[dot]alhem[at]legal[dot]lu[dot]se)
+46 46 222 09 85
hanna [dot] stam [at] legal [dot] lu [dot] se (hanna[dot]stam[at]legal[dot]lu[dot]se)
+46 46 222 71 41
sofia [dot] rosspher [at] legal [dot] lu [dot] se
+46 46 222 08 90
sanna [dot] hakansson [at] legal [dot] lu [dot] se (sanna[dot]weber[at]legal[dot]lu[dot]se)
+46 46 222 08 10
Malin Lavesson (on parental leave)
malin [dot] lavesson [at] legal [dot] lu [dot] se