1.1 Introduction
Traditionally, administrative law and policy were concerned with ways of controlling and sanctioning administrative action, and less preoccupied with the administrative inaction—nonetheless, administrative silence as much relevant as the administrative act. It is an issue that lies at the intersection of legal and managerial aspects of governance and public administration. Moreover, it is a concept that is both reflecting and testing the principles of legal certainty, legality, and good administration and raises issues of rational organization and governance, as well as ethics in public administration.
Administrative silence occurs when administrative authority does not reply to an application in the legally prescribed time or does not take action when such action is legally prescribed. The legal fiction attached by the law to this situation may be negative (rejection) or positive (approval); over time, also various combinations thereof have been developed in individual legal regimes. Today, no legal system is exclusively working with just one of the legal assumptions.1 Moreover, traditional national systems are lately redefined to offer more exceptions or mechanisms regulated beside a general rule, so that sometimes the number of exceptions overrides the basic principle.2
Public administration inactivity, or in other words the excessive length of administrative proceedings, is not a new phenomenon; however, it appears to be of limited interest for comparative law, and it occurred particularly as attempts to develop a European convergence in administrative procedural law in a pro-business paradigm.3 In this context, there were initiatives at the EU level that attributed administrative silence as a positive legal fiction—namely Directive 2006/123/EC on services in the internal market (Service Directive).4 It should be also noted that Article 41 on right to good administration of the EU Charter on Fundamental Rights generally requires that every person has a right to have his or her affairs dealt within a reasonable time.5
The tension between silence as rejection (negative) and silence as approval (positive) is to be found not only at the level of the EU procedural law, but also at the level of the national administrative law of the Member States. In this chapter, we critically synthesize the main aspects discussed in the following chapters that deal with this topic in national setting, trying to find a red line or identify common trends among the studied jurisdictions.
In comparative law, the administrative silence has been a field of constant changes as national legislators experiment the most efficient way to tackle the issue, and then search for refinement of their legal regimes based on legal traditions, comparative law, and EU law insights. The issue of administrative silence has been paid little attention in comparative law until now, so we hope that this chapter offers a sneak peek into the legal and practical problems raised by this legal institution and the interest of the reader to go into the more detailed analysis of the administrative silence provided by the national chapters was already sparked.
First, the concept of administrative silence is briefly discussed in this section. Subsequently, an outline is given of the national legal and administrative background as far as relevant for analyzing the administrative silence. The main trends regarding the regulation of timeliness and the length of time limits and calculation are described (Sect. 1.2). This is followed by an in-depth analysis of the response to administrative silence: the negative and the positive legal fiction (Sect. 1.3). The chapter ends with an overall assessment explaining the lessons to be learned on the basis of the comparative law study (Sect. 1.4).
1.2 The National Legal Systems as Background for the Treatment of Timeliness of the Administrative Procedure
1.2.1 The Context for Understanding Timeliness of Administrative Procedure
In most countries, administrative silence has been regulated since (deep in) the mid-twentieth century, and in some countries, the development of administrative silence goes back further in time. France, Spain, Portugal, Italy, Netherlands, Slovenia, Serbia, and Croatia (among others) have quite extensive regulations on time limits, prolongation of time limits, and legal actions when time limits are exceeded. From a comparative perspective, it is interesting to note that the topic of administrative silence has received relatively little attention in Germany. Traditionally, in German administrative law and administrative science, the emphasis has been on tying and controlling the administration (arising from the rule of law) and not on fighting its inactivity. Originally, neither positive nor negative silence existed within the legal framework. The German Federal Administrative Procedure Act and the Code of Administrative Court Procedure were not influenced by French law or any other foreign legal system. Positive silence, implemented in 2009 in the Federal Administrative Procedure Act, is a product established by EU law. In addition, in Romania, one of the newest Member States of the EU, the regulation of administrative silence is scarce. An explanation for this is that during the communist regime (until 1989) it was practically impossible to challenge inaction of the public administration, as the state overlapped with the Communist Party. However, since the beginning of this century, the administrative silence has been evolving in the legal system from positive silence (influenced by EU law) shifting to silent rejection.
1.2.2 The Legal Framework of Administrative Timeliness
In most of the studied jurisdictions, the constitution does not provide explicitly for provisions related to timeliness of administrative decisions. General administrative deadlines are not provided in the constitution, nor specific provisions on legal protection against untimely decision-making by government. Most of the time, administrative timeliness is regulated in a general administrative law act or administrative procedure act, usually in combination with sector-specific laws.
In some countries, principles relating to administrative timeliness are laid down in the constitution. For example, the Spanish Constitution contains the principle of effectiveness, which is understood to include the obligation to resolve administrative procedures within a reasonable time. The Portuguese Constitution, in addition to codifying principles that can be associated with administrative timeliness (effective and non-bureaucratic administration), also contains a specific provision to ensure legal protection against administrative inaction. This constitutional guarantee is considered meaningful since in French-inspired administrative justice systems, forms of injunction in matters related to administrative acts were traditionally not in place, or were difficult to obtain, because of the understanding of the principle of the separation of powers. Some constitutions demand decision-making within a reasonable time (also) in administrative matters (Croatia, Slovenia). Although there is no explicit provision in the Portuguese Constitution for timely decision-making in administrative procedures, in case law a constitutional right to timely decision-making is derived from Article 6(1) of the European Convention on Human Rights and/or Article 41 of the Charter of Fundamental Rights of the European Union.
Administrative timeliness is regulated mainly through a general administrative procedure act in combination with sector-specific legislation. However, the interplay between the general act and special laws differs. In some countries, the general act provides a general provision on time limits, which only applies when the time limit is not specified in the specific legislation. The general provision functions as a “safety net” (Netherlands, Spain, and Portugal). In other countries, in principle, the general rule in the administrative procedure act applies, which can be deviated from in special legislation (France, Slovenia, Croatia, Serbian, and Poland). In Croatia, it has been a deliberate choice to move away from the principle of subsidiarity in order to ensure consistency in the implementation of general administrative law. Another approach is that there is specific time limit regulated by the general law, while specifying time limits in special laws (as in Germany, France, and Italy). Overlooking the whole, sector-specific regulation of issues of the administrative procedure seems to be widespread.
1.2.3 The Length of Administrative Deadlines
From a comparative perspective, it is noticeable that there is a dizzying variation in deadlines. Nevertheless, there are some red lines to be drawn. In general, complicated procedures can take longer time. Relatively simple cases, or cases in which an individual has a special interest, should be faster. In Poland, this distincti...