implemented through a source of information whose availability depends solely on the whim of the Swedish legislator.11 It might well be argued that the Commission would take any action to ensure the full efficiency of EU law within member states, and that this case is only an expression of this purely political ambition. I do not believe this to be entirely true. The theoretical connection between legislative history resistance as formulated, for instance, by the American textualist school, and the arguments advanced by the Commission, is obvious. It becomes even more so when one takes into account that the position of the Commission was supported by several Swedish legal scholars. Since at least the 1980s a small but clearly noticeable resistance against legislative history as a source of law has been active within Swedish legal theory, perhaps inspired by American and English law.The goal seems to be to try to minimise or at least reduce the use of legislative history by both the Swedish legislator and judges.The problem for any observer is that such resistance is not always plain. It presents itself in a variety of forms.The first is the prophecy made by legal experts at the time Sweden entered the European Union that an important effect of EU law on Swedish legal culture would be the gradual disappearance of the use of legislative history.12 Some 15years later it is clear that this prophecy has not come true (the frequency of references to legislative history in the case law of the Swedish Supreme Court is as high today as it was in 199513). To the extent that this prophecy has not been realised it must be interpreted not as a description of the reality, but rather as a secret wish.A second form of resistance is the open claim that EU law places a certain pressure on Swedish legal culture re cht swi s s e n scha f t al s j ur i st i sch e dok t r i n 200 11 The promulgation argument lies at the heart of the resistance against legislative history.The term was formulated by E. Baden, Zum Regelungsgehalt von Gesetzgebungsmaterialien, in: Studien zu einer Theorie der Gesetzgebung, (hrsg.) J. Rödig, Berlin 1976, p. 384. 12 “My point of view is that it is clear that the importance of legislative history as a source of law will be reduced [...] As the integration of the Swedish legal system with Europe proceeds ... the role played by legislative history in courts will gradually be reduced to nothing.”, J. Rosén, De svenska lagförarbetenas vara eller inte vara som rättskälla, Svensk Juristtidning 1996, p.259. It translations from Swedish to English are my own. 13 A survey shows that in the year of 1985 legislative history was referred to in 48% of the cases. In 1996 the number was 45% and in 2006 it had increased to 64%. Whoever claims that legislative history is becoming a less important source of law in Sweden therefore has the burden of proof.
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