D. Dragos et al., The Sound of Silence in European Administrative Law (Palgrave Macmillan 2020)

Sound of Silence in European Administrative Law attempts for the first time to engage in a comparative assessment of the different models employed in order to tackle the administrative silence in administrative law.  The comparative work is the first on this theme to tackle both the legal aspects and some empirical evidence of how the legal institution works in practice.

Administrative silence occurs when an 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 may be negative or positive. Negative fiction means that the law considers the silence as tacit rejection of the application and the interested parties have the possibility of a legal challenge in administrative or judicial venues. In the second instance, positive fiction, the presumption is that the silence means approval (the silent consent procedure or tacit agreement). The application is considered approved and the applicant can perform an activity. No legal system is exclusively working with just one of the legal assumptions. Both negative and positive assumptions are used, with different legal consequences.

Traditionally, administrative law and policy was concerned with ways of controlling and sanctioning administrative action, and less preoccupied with the administrative inaction. Nonetheless, administrative silence is 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, good administration and raises issues of rational organisation and governance, as well as ethics in public administration.

Public administration’s 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.  In this context, there were initiatives at the EU level that attributed administrative silence a positive legal fiction – namely Directive 2006/123/EC on services in the internal market (Service Directive). It should be also noted that Art. 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.

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. This book deals 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 to offer a sneak peek into the legal and practical problems raised by this legal institution and spark the interest of the reader to go into the more detailed analysis of the administrative silence provided by the national chapters.

This book offers in-depth insights into the topic through national profiles provided by domestic scholars based on a common outline. The approach is mainly legal, but often enriched by an interdisciplinary perspective (such as public policy, management, and economics). Authors have gathered the most up-to-date case law and available empirical data to be able to assess the administrative silence as a complex dysfunction that needs to be dealt with systematically to enable good administration.

This book is structured as follows: firstly, a comparative overview opens up basic principles, rules and dilemmas that administrative silence is closely connected with. Further, an analysis of EU law is given, followed by country reports from western and southern (seven chapters) and central and eastern Europe (six chapters), respectively. Each chapter is organised in such a way to provide comparisons. Initially, the authors address the background legal tradition and system, and the general and sector-specific legal framework regarding administrative silence in a given country. The concept of administrative silence is discussed against the background  of national law  which is relevant for analysing the administrative culture.

The core research question is whether legal tools meant to deal with administrative silence (the positive or negative model) are effective and what is their effect in practice. Finally, an overall assessment of national regimes is performed in order to identify solutions for future policy making and how to deal with the specific issues of administrative timeliness.

Despite these arguments against the positive silence mechanisms, a trend is discernible throughout Europe: the legal framework for the timeliness of administrative decision-making and for dealing with administrative silence has changed in the last decade. With it, the treatment of silence, which after decades of negative fiction, has moved to allowing positive fiction for some specific procedures or even has been allowed to assume the primary role.

However, the underpinning motives of administrative delays and silence are tightly linked to the general problems of public administration in the jurisdictions studied: insufficient administrative capacity, lack of digitization and faulty record keeping, lack of interest from the central level of government for collecting data and analysing systemic problems, lack of responsibility of civil servants, and lack of civic oversight. As a rule, administrative scholars scarcely discuss administrative silence, empirical data is not collected, while the discussion of timeliness considers procedures to be too long without empirical data (see for instance the German chapter). The review mechanisms alone are also ineffective in solving the timeliness problems, as courts are reluctant to police the administration too much (see for instance the case of Portugal).

In the national chapters the authors present also some empirical findings. It was hard to gather them, and they are not as relevant as the editors would have wished for. However, even the lack of data shows something: that record keeping must be improved and that governments should address the issue of timeliness not based on perceptions but on empirical data.

For a theme that is quite under researched, there are a fair number of common issues and thus the legal tools envisaged purport to common conclusions.

For instance, public authorities do not keep a structured account of timeliness in solving administrative petitions, that deadlines for answering petitions are in principle not exceeded but other tricks are used, such as requesting new documents, which can prolong the procedure indefinitely. Reporting on timeliness does not consider the completeness of the response given to the petitioner and they are not correlated with cases that end up in court. When assigned with litigation on administrative silence, the courts try to be effective and look at the underlying legal issue at hand (the rights or interests aggrieved) and treat administrative silence as a side-line issue. The system of negative silence is still predominant in most jurisdictions, even in those that declaratively adopted the positive silence as a principle. The positive silence, where generalized, has backfired, was criticized by scholars and needed judicial intervention from courts in order to restrain its effects. On the other hand, there are also limited and specialised fields where positive silence works, for instance recognition of qualifications. In other instances, it works only as a sanctioning mechanism for the administration, and it pushes the authorities to respect the deadlines or at least to justify the extension of the deadline. Finally, apart from some declaratory political statements there are no effective down-to-earth strategies aimed at reducing the processing time for citizen’s requests or a coordinated analysis of this phenomenon.

As to the legal remedies, all jurisdictions use administrative appeal, a form of Ombudsman and the courts. Usually, the administrative appeal is a pretty effective method to make the administration pay attention to the deadlines, and it constitutes a good venue for pre-trial confrontation even in countries where it is not mandatory – such as France, where the administrative appeal helps the party to open the gates of judicial review. Another institution that takes care of delays is the Ombudsman, who can investigate both individual transgressions or systemic failures. The administrative and criminal law sanctions are not used in a consistent manner in order to be relevant, they work only as a scarecrow.

The conclusion of the book is that, in order to ensure effective and responsive administration, in other words good administration, administrative silence must be properly addressed by both legal framework and organisational measures. Administrative silence can significantly influence administrative conduct in general, affecting not only individual rights and/or public interest in some cases, but generally the rule of law and trust into government. It has been a field of rather constant changes in pursuing the most efficient way to tackle the issue insofar, since various countries search for refinement of their legal regimes based on legal traditions, comparative insights and EU measures.

So the solution is not in to revert the legal fictions from negative to positive and to expect a miracle, but to deal with delays in an integrated manner, using legal and managerial tools: negative fiction should be accompanied with accountability of civil servants that left the time to pass (as in the case of the Netherlands or Poland, where penalties are imposed), and finally the courts should grant damages for not observing the deadlines, irrespective of how the case was decided on merits. The Ombudsman should be strengthened as an institution that deals with systemic breached of administrative timeliness.

The team of authors contributing to this book is based in most part on the network of researchers established under the umbrella of the Permanent Study Group X “Law and Public Administration” of the European Group of Public Administration.  The editors are convinced that administrative silence should be a theme that requires continuous attention from multi-disciplinary scholars and from practitioners and that further insights into the workings of this institution are needed in order to draw firm conclusions on the effectiveness of tools envisaged to deal with it.

Posted by Professor Dacian Dragos (Babes Bolyai University).