The International Academy of Comparative Law chose the topic of “Administrative Silence” as the subject for its general report on the occasion of the General Congress held in Asuncion, Paraguay in 2022.
I was assigned the role of General Reporter to present the conclusions of the conference and to edit the present book. The full list of reports is available at the end of this blog piece.
As concluded in most of the national reports, administrative silence refers to a multitude of situations – that can be analysed through different legal approaches – in which the Administration fails to issue a decision that expresses a declaration of will.
The national reports we received contain a variety of cases in which the administration is legally obliged to issue a decision to a request submitted by a citizen within a concrete administrative procedure, but fails to do so or omits to carry out the conduct that was mandatorily required by an express legislative provision.
The book also covers those cases in which the administration omits issuing a certain regulation or individual decision that is necessary to make an individual right operative.
There was consensus on the fact that the omission to decide on what is requested may affect the rights of the individual, since it is unquestionable that citizens have the right to make requests to public bodies when they exercise an administrative function. Correspondingly, public authorities have a duty to issue a response to it; otherwise, legal remedies may be sought by the aggrieved party.
The lack of an express decision acquires a certain legal effect and, in general, it operates as “silence” when there is administrative inactivity after a given period time elapses. However, when faced with a violation of the general principles that govern the issuance of administrative decisions, and taking into account the various reports that were made for this study, it is clear that the several legal systems under examination have found solutions. This, in turn, has helped us to draft the appropriate solutions which we discuss in the book.
It has been observed that the influence of human rights treaties is particularly relevant both in European and Latin American legal systems. This has influenced the enactment of primary and secondary legislation that has provided rules on administrative silence in administrative procedure.
“Administrative silence” is conceptualized similarly in all the submitted “special national reports”, while still maintaining distinctions stemming from the uniqueness of each legal system. Equally, it is interesting to observe that in different languages the concept of “administrative silence” refers to “inactivity” as a common factor. However, it is not just any inaction, but one that produces legal effects that must be considered. At the same time, in some legal systems, the damage suffered by individuals because of such administrative inactivity or inaction may incur the personal liability of public officials, the State’s liability or both.
Notwithstanding this, in some countries, the term is not officially used in the aforementioned way. It exists as a doctrine to explain delays in the procedure or failing to make a resolution or come to a decision within the legal deadline, but without the legal effects to which, as discussed in the book, other systems concede.
Another aspect to consider is that silence can be assimilated to an omission by the administration, which includes both inactivity – when an action is required by law – and failure to issue a decision in due time. The question, therefore, arises as to whether any omission can be assimilated to silence, or whether only the failures of the administration to act produce legal effects.
Therefore, silence can be considered as a sub classification of omission. The notion of a tacit act arises in order to give meaning to non-existent behaviour, which refers to a presumptive mechanism for seeking the will of the public body in order to fill in the gap that its non-existence has produced. This mechanism prevails in most of the legal systems analysed for this project; it does not exhaust the various assumptions that this lack of expression of the decision produces.
Administrative silence is, as a matter of fact, a fiction based on the possibility of obtaining legal remedies to overcome the inactivity due to the simple passage of time, as it is the case with other similar legal fictions.
The effects of silence may be positive or negative. It is interesting to note that the development occurs, in different systems, when silence is equated to acquiescence and thus attributed an affirmative meaning, i.e., that the request is granted even though there is no express ruling.
This solution contrasts with the most common practice of equating administrative silence with a denial of the request or petition. This is especially the case in Latin America, where silence can only be interpreted “positively” when there is an express rule which sets such exception to the general principle. The main reason for this can be attributed to the fact that these jurisdictions inherited the Spanish administrative system. In order to be able to seek judicial remedies, it is mandatory to previously exhaust the available administrative procedures.
This is the case when legal systems require prior appeal to the administration before resorting to external control; that is, there is no possibility of obtaining judicial relief unless the request has previously been subjected to the executive branch and, thus, this control cannot be requested at any time or in any situation. It is generally an impartial and independent court of justice.
In addition to this, ambiguous acts have been dealt with in some country reports as illegal or unreasonable acts. Ambiguous acts are usually placed within silence. This can be equated with an illegitimate act; this happens when there is uncertainty regarding the content of the decision. The response to administrative silence on the part of citizens has been addressed in the legal systems of the countries analysed in this book in various ways.
We found different legal solutions that allow an appeal to the courts to force the administration to issue the administrative act. The aim of this kind of requests is solely to force a response form the administration, without substituting the exercise of the administration’s own discretionary powers. Therefore, in the constitutional context of full separation of powers, judges can only order that a decision be provided by the administration, but they cannot impose any specific content on the administration.
Comparing the national reports shows several similarities starting with the duty of the administration to provide a response to a request from the administered party, which is often treated as a fundamental right.
Likewise, the national reports indicate that the level of observance of legal deadlines to resolve administrative appeals can be analysed from a cultural perspective; specially referring to the institutional quality and conformity to norms and regulations of each of the countries whose systems we comment on. It could be asserted that Latin American reports show the importance of having legal tools to prevent administrative silence from resolving petitions and, by way of the time limit, to provide the citizen with the necessary tools for this purpose.
Although administrative silence is a violation of the regulations that establish the obligation of the administration to rule on requests, which is found in most of the countries under examination, the liability of the non-compliant State and of the civil servant is not always expressly covered, except in some continental systems. It can be seen in the different works that make up this book that the lack of resolution of petitions sometimes stems from problems and deficits particular to each country; this often makes it inconvenient to apply rules designed to overcome local challenges to other countries which may not share them, or have their own set of problems.
In conclusion, common ground has been found with regards to the problem, its definition and a broad approach to possible solutions. Silence is structured in defence of the individual and therefore it is the exclusive and excluding power of the individual to invoke. The administration cannot itself consider the request denied by silence because it would result in a contradictory situation. It is the direct and immediate relationship that arises from the administrative body’s duty to exercise its jurisdiction which provides that it must issue a decision; in other words, to exercise one’s jurisdiction is not only a prerogative but, as we contend, a duty.
The study of administrative silence and the national reports that have been produced have revealed the importance of the subject. A robust democracy and a well-functioning republic require clarity and transparency in the handling of public affairs; citizens must be truly informed about any decision that directly pertains to their rights and there must be channels which allow for communication between the government and those who it serves. The doctrine discussed in this book is one constructed with the goal of promoting the said values by tackling administrative inactivity.
Posted by Pedro Aberastury, Consulting Professor, School of Law, University of Buenos Aires (UBA), Argentina; Former President, Argentine Association of Comparative Law
All attendees to the conference were invited to participate; academics from 21 countries contributed: Argentina, Héctor Pozo Gowland; Brazil, Ricardo Perlingeiro, with the collaboration of Luciana F. Portal Gadelha and Patrícia Fernandes Marques; Canada, Suzanne Comtois; Chile, Jorge A. Femenías S.; Colombia, Libardo Rodríguez Rodríguez; Croatia, Dario Đerđa; France, Armand Despraires; Germany, Hermann Pünder and Jens Gerlach; Hungary, Krisztina Rozsnyai and Gyula Koi; Italy, Roberto Caranta; Mexico, Carla Huerta, with the collaboration of Rogelio Robles; Netherlands, Tom Barkhuysen, with the collaboration of Michiel L. van Emmerik; Peru, Jorge Danós Ordoñez; Poland, Zbigniew Kmieciak, with the collaboration of Joanna Wegner; Portugal, Dulce Lopes; Romania, Cristian Clipa; Spain, Vicenç Aguado i Cudolà; Sweden, Torvald Larsson; Switzerland, Myriam Senn; Turkey, Nilay Arat and Venezuela, Allan R. Brewer-Carías.
Suggested citation: P Aberastury, ‘Administrative Silence (Intersentia 2023)’, BACL Blog, available at https://british-association-comparative-law.org/2024/01/19/administrative-silence-intersentia-2023-by-pedro-aberastury-ed/
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