Silence of the administration

Oswald Jansen

1. Introduction

In order to achieve results from a general interest point of view administrative authorities regulate human and market activity. The regulatory system of subjecting these activities to some kind of approval by the administration still has great practical relevance. In its limitless creativity the legislatorhas designed all kinds of approval systems. A permit grants permission for an activity which is generally desirable, whereas an exemption gives permission for an activity which is generally not desirable. All permission systems mentioned abovepresume an application by the citizen or company that needs theallowance to start or continue the desired activities. In otherwords, citizens and companies are depending on the government to act. In most if not all administrative law systems in the European Union the administration has the obligation to act upon application. They have the obligation to administrare. As wewill see the application is not the only creator of this administration’s duty to act. In some cases administrative authorities are required to act ex officio.1

I should mention here that there are situations more or less inbetween acting upon application and ex officio. In an attempt to limit the burden on the administration the procedure to notify the administrative authority was introduced. The way this notification requirement is designed, the legal consequences ofa notification as well as the legal certainty offered by it again depend on the creativity of the legislator involved. Unlike the permit or the exemption upon application the basic feature of the notification system is that the governmental agency is not obliged to act upon application nor to decide as applied for. The administrative authority receiving the 1 See for example Article 44 of the Spanish Ley 30/ 1992 de Régimen Jurídicode las Administraciones Públicas y del Procedimiento Administrativo Común, and Article 13 Código do Procedimento Administrativo (CPA) (Princípio da decisão) (Decreto-Lei n.º 4/2015).

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notification is not allowed to ignore it, but in many cases thesole confirmation of receipt suffices. These kinds of legislative strategies to design more efficient forms of allowance or notification affect the legal certainty of the citizens and companies involved. At the same time many of theseregulatory strategies aim at the reduction of administrative burdens.2

My contribution deals with the legal consequences of unlawful inactivity of the administration. Traditionally this silence ofthe administration is discussed from the point of view of legalprotection and judicial review. The solutions that can be foundin the different administrative law systems reflect the way thedominant legal approach looks at the separation and balance of the powers of courts and the administration. Allready the factthat the French fundamental public law principle (règle fondamentale du droit public) of the privilège du préalable which founded current administrative law systems fostered the fictitious negative decision as a solution to enable the citizen affected by administrative silence to invoke judicial review shows the importance of the differences between approaches to balancing judicial review and the discretionary powers of the administration. As we will see below the powers, possibilities and attitude of administrative courts influence to a great extend the design of the legal system to deal with administrative silence.

As I will discuss in more detail below, legislators tried to improve the legal position of the applicant who is waiting for the administration to act upon his application by introducing decision making by default. In many EU Member States the publiclaw regulation of building activity offers a traditional example of such a fictitious positive decision.3 More recently

2 The Services Directive I will discuss below gives a good example of this regulatory strategy.3 Systems of fictitious decision making can also be found outside Europe, for example Chile, Mexico and Peru. See Oswald Jansen (ed.), Comparative Inventory of Silencio Positivo, Institute of Constitutional an Administrative Law, Utrecht School of Law, September 2008.

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the Services Directive introduced the obligation to introduce such a decision in national regulation. Regulatory systems withdecision making by default exist in more areas though.

As I will argue below the aim is here to improve the legal position of the applicant by using the requirements following from the principle of legal certainty. After all from the view point of legal certainty the applicants’ legal position is better than in a situation where it is necessary to take legal action in order to obtain a court decision stating the obvious fact that the administrative authority did not take a decision in time. Compared with a real positive decision the legal situation of an applicant with a fictitious positive decision is worse though. In all regulatory strategies the point of departure remains that administrative authorities should act inconformity with their obligation to decide explicitly.

In the following paragraph I will analyse the obligation of theadministrative authority to act. As we will see, there are manyobligations to act and the obligation to decide upon an application within a certain time-limit is just one of them. I will also briefly discuss the obligations to act deriving from fundamental rights (ECHR as well as the CFR) and the European administrative law obligations. In paragraph 3 I will analyse the consequences and legal effects of administrative silence aswell as the legal instruments to force the administrative authorities to decide in time. This except for the judicial instruments, as I will discuss them in paragraph 4 on legal protection.

2. The obligation to act

2.1 introduction

The obligation of public administration to act has many different legal sources. Probably the most regular one would bethe administrative law obligation of administrative authoritiesto decide upon an application within a certain time-limit. Thisobligation exists in many if not all national administrative

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law systems in the European Union.4 It also exists in European Administrative law as an obligation of both the EU administrative authorities and national administrative authorities implementing EU law. Next to these general obligations numerous specific obligations to act exist.

As I will elaborate below in this paragraph this obligation hasbases in constitutional law as well. First of all there is the general principle of EU law as well as the fundamental right togood administration (Article 41 CFR), which entails every person’s right to have his or her affairs handled within a reasonable time by the institutions, bodies, offices and agencies of the Union. As I will explain in some more detail below there is a clear link with article 6 ECHR,5 and thereforewith Article 47, second paragraph, CFR as well, which makes clear that everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law.6 One should realize that despiteits wording this fundamental right is also applicable in the pre-trial phase of administrative proceedings. Secondly, there are positive obligations of the state and its administrative authorities to act in order to render a certain fundamental right more effective, for example everyone’s fundamental right to respect for his private and family life and his home (Article 8 ECHR; 7 CFR).

2.2 Council of Europe

4 See M. Fromont, Droit administratif des États européens, PUF, Paris 2006, p. 222-223. See also the following examples of PhDtheses on this subject : Ingrid Opdebeek, Rechtsbescherming tegen het stilzitten van het bestuur, Die Keure 1992 (Belgium); Vicenç Aguado i Cudolà, Silencio administrativo einactividad: límites y técnicas alternativas, Marcial Pons 2001 (Spain). 5 See for example recently Emilie Chevalier, Bonne administration et Union européenne, Bruylant, Bruxelles 2014, p. 228 and 229. 6 See on this CJ 10 July 2014 Case C-295/12 P Telefónica SA v. Commission; Gascogne Sack Deutschland v Commission EU:C:2013:768, paragraphs 86 to 90; Kendrion v Commission EU:C:2013:771, paragraphs 91 to 95; and Groupe Gascogne v Commission EU:C:2013:770, paragraphs 80 to 84.

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In 1996 the Council of Europe published the handbook The Administration and you,7 which contains principles of administrative law the Council of Europe has developed in the previous years.8

On time-limits the Council of Europe pronounced the following principles:

‘47. If a procedure requires the taking of a formal administrative act at the end of it, the administrative authority (or authorities) involved must complete the different stages of the procedure and take the act within a reasonable time. This principle applies no matter whether the procedure was initiated by the administrative authority itself or by a private person.47.1. Comment: Prompt expedition of any procedure for thedetermination of private persons’ rights and obligations is an intrinsic element of justice. The promptitude requirement in respect of procedures, which is also to be found in Article 6, paragraph 1 of the European Conventionon Human Rights, is imposed further by the objective of certainty of the law. In fact, before an act terminating an administrative procedure is taken – and up to the expiry of any time-limits after which failure to act can be considered as equivalent to action – the procedure remains pending and hence the legal situation undefined. Only the administrative act terminating the procedure opens the possibility of taking action against the procedure orthe final administrative act (whereas any action taken before that moment can only aim at obliging the administrative authorities to take an administrative act).48. A failure to act (silence or inaction) must, under national law :

7 Council of Europe, The administration and you. Principles of administrative law concerning the relations between administrative authorities and private persons. A handbook, 1996 (French edition: L’administration et les personnes privées : Un manuel ISBN 92-871-2770-0) ISBN 92-871-3124-48 See for example Recommendation R (80) 2 of the committee of ministers concerning the exercise of discretionary powers by administrative authorities and Resolution (77) 31 on the protection of the individual in relation to the acts of administrative authorities.

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(i) either be considered, after a specified period of time, as equivalent to an act (positive or negative decision);(ii) or be subject to possible control by an administrative or judicial authority competent for that purpose (control for omission).’

I should also point at the Recommendation CM/Rec(2007)7 of the Committee of Ministersto member states on good administration which provides for the recommendation that Public authorities shall act and perform their duties within a reasonable time (article 7). Article 13, second paragraph of these recommendations reads as follows

‘Decisions in response to requests to public authorities shall be taken within a reasonable time which can be defined by law. Remedies for cases where no such decision has been taken should be foreseen.’9

As we have seen above the obligation of administrative authorities to decide within a reasonable time-limit which is part of the right to good administration is closely related to everyone’s right to have to a fair and public hearing within a reasonable time by an independent and impartial tribunal previously established by law right enshrined in Article 6, first paragraph, ECHR. The complementarity of these two rights can also been seen in the case law of the ECtHR according to which this right also applies to the pre-trial stage from the moment there is a criminal charge or when a litigation on civilrights and obligations10 is supposed to have started. In the 9 Recommendation Rec(2004)20 of the Committee of Ministers to member states on judicial review of administrative acts provides for the recommendation that refusals and omissions to act should be subject to judicial review like any other administrative act. 10 Normally the moment a quo begins to run from the moment the action was instituted before the competent court (see ECtHR 23 April 1987 Poiss v. Austria § 50; ECtHr 29 March 1989 Bock v. Germany, § 35), unless an application to an administrative authority is a prerequisite for bringing court proceedings, in which case the period may include the mandatory preliminary administrative procedure (ECtHR 28 June 1978 König v. Germany, § 98; ECtHR 31 March 1992 X. v. France, § 31; ECtHR 7 June 2001 Kress v. France, § 90). In some circumstances, the reasonable time may begin to run even before the issue of the writ commencing proceedings before the court to which the claimant

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case of Imbroscia v. Switzerland11 the court summarized its case law as follows:

`Certainly the primary purpose of Article 6 (art. 6) as far as criminal matters are concerned is to ensure a fair trial by a "tribunal" competent to determine "any criminalcharge", but it does not follow that the Article (art. 6) has no application to pre-trial proceedings. The "reasonable time" mentioned in paragraph 1 (art. 6-1), forinstance, begins to run from the moment a "charge" comes into being, within the autonomous, substantive meaning to be given to that term (…);12 the Court has occasionally even found that a reasonable time has been exceeded in a case that ended with a discharge (…)13 or at the investigation stage (…).14 Other requirements of Article 6(art. 6) - especially of paragraph 3 (art. 6-3) - may alsobe relevant before a case is sent for trial if and in so far as the fairness of the trial is likely to be seriouslyprejudiced by an initial failure to comply with them (…).’15

submits the dispute (ECtHR 21 February 1975 Golder v. the United Kingdom, § 32; ECtHR 23 April 1987 Erkner and Hofauer v. Austria, § 64; ECtHR 19 April 2007 Vilho Eskelinen and Others v. Finland, § 65). However, as practical guide on Article 6 ECHR of the ECtHR states (p. 51): ‘this is exceptional and has been accepted where, for example, certain preliminary steps were a necessary preamble to the proceedings (ECtHR 26 September 2006 Blake v. the United Kingdom,§ 40).’ 11 ECtHR 24 November 1993 Imbroscia v. Switzerland.12 The ECtHR refers here to the Wemhoff v. Germany judgment of 27 June 1968,Series A no. 7, pp. 26-27, para. 19, and the Messina v. Italy judgment of 26 February 1993, Series A no. 257-H, p. 103, para. 25.13 The ECtHR refers to the Maj v. Italy judgment of 19 February 1991, SeriesA no. 196-D, p. 43, paras. 13-15.14 The ECtHR refers here to the Viezzer v. Italy judgment of 19 February 1991, Series A no. 196-B, p. 21, paras. 15-17.15 The ECtHR feres to the following judgments: Engel and Others v. the Netherlands, 8 June 1976, Series A no. 22, pp. 38-39, para. 91; Luedicke, Belkacem and Koç v. Germany, 28 November 1978, Series A no. 29, p. 20, para. 48; Campbell and Fell v. the United Kingdom, 28 June 1984, Series A no. 80, pp. 44-45, paras. 95-99; Can v. Austria, 30 September 1985, Series A no. 96, p. 10, para. 17; Lamy v. Belgium, 30 March 1989, Series A no. 151, p. 18, para. 37; Delta v. France, 19 December 1990, Series A no. 191-A, p. 16, para. 36; Quaranta v. Switzerland, 24 May 1991, Series A no. 205,pp. 16-18, paras. 28 and 36; and S. v. Switzerland, 28 November 1991,

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And finaly, the ECtHR has found obligations for administrativeauthorities to act in order to protect fundamental rights enshrined in Article 2,16 3,17 8,18 1019 and 1120 ECHR.

2.3 OECD

Since 1995 the OECD has developed guidelines and recommendations on the quality of government regulation. On thebasis of the Recommendation of the Council on Improving the Quality of Government Regulation of 9 March 1995, the OECD presented in 1997 the following 7 principles of good regulation:

‘Good regulation should:(i) be needed to serve clearly identified policy goals, and effective in achieving those goals;(ii) have a sound legal basis;(iii) produce benefits that justify costs, considering thedistribution of effects across society; (iv) minimise costs and market distortions; (v) promote innovation through market incentives and goal-based approaches; (vi) be clear, simple, and practical for users; (vii)be consistent with other regulations and policies; and (viii) be compatible as far as possible with competition, trade and investment-facilitating principles at domestic and international levels.’

These principles were refined with the OECD Guiding Principles for Regulatory Quality and Performance of 2005 and the

Series A no. 220, pp. 14-16, paras. 46-51.16 ECtHR 27 September 1995 McCann and Others v. the United Kingdom, § 161, and ECtHR 28 October 1998 Osman v. the United Kingdom, §§ 115-117.17 ECtHR 28 October 1998 Assenov and Others v. Bulgaria, §102.18 ECtHR 7 July 1989 Gaskin v. the United Kingdom, §§ 42-49.19 See for example ECtHR 5 July 2005 Melnychuk v. Ukraine, ECtHR 14 September 2010 Dink v. Turkey, § 137, and ECtHR 16 maart 2000 Özgür Gündem v. Turkey, §§ 42-43. See on this the research report Positive obligations on Member States under Article 10 to protect journalists and prevent impunity, published by the ECtHR in December 2011. 20 ECtHR 21 juni 1988 Plattform “Ärzte für das Leben” v. Austria, § 32.

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Recommendation of the Council of the OECD on Regulatory Policy and Governance of 2012. One of the elements of this policy is the reduction of administrative and regulatory burdens from thepoint of view of the citizens and companies affected, and the policy not to unduly delay business decisions. This policy gavean important boast to pay attention to silence of the administration. In 2008 the OECD started in partnership with the European Commission a project called Better Regulation in Europe, which produced reports on 15 EU Member States. Next to this project SIGMA, which is another OECD/EU joint project focused on the regulatory policy and reform issues of EU candidate and potential candidate countries. Also other countries outside theEU and OECD are following or inspired by the OECD recommendations and guidelines.

2.4 EU Law

2.4.1 Introduction

As far as silence of the administration is involved EU law plays a few roles. First of all, it imposes on its administrative authorities (institutions, bodies, offices and agencies) the obligation to deal with the affairs of every person within a reasonable time, one of the elements of the right to good administration (paragraph 2.4.2). Secondly, it provides for judicial review and legal protection against the failure to act by the Court of Justice (Article 263 and 265 TFEU)(paragraph 2.4.3). Thirdly, it requires from Member Statesto review facts and interest upon an application by forbidding national fictitious decisions, and to provide for judicial review and legal protection against administrative silence. Finaly, EU law sometimes provides for obligations to introducedfictitious decisions, such as for example in the Services Directive and the Regulation (EC) 1829/2003 on genetically modified food and feed (paragraph 2.4.4).

2.4.2 The obligation to act within a reasonable time as part of the right to good administration

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The obligation to act within a reasonable time was already recognised a general principle of Community law related to the principle of sound administration before it was part of the Charter.21 An important role in developing the right to good administration was played by the European Ombudsman who developed the European Code of Good Administrative Behaviour.

According to this general principle and fundamental right, and if a time-limit is not set by EU legislation,22 EU administrative authorities are required to adopt a decision within a reasonable time in the interest of legal certainty andto ensure adequate judicial protection.23 Whether the time taken for a procedure is reasonable must be assessed in relation to the individual circumstances of each case, and in particular its context, the conduct of the parties during the procedure, what is at stake for the various undertakings concerned and its complexity.24

The obligation to act within a reasonable time seems also to beused now by the Court to limit time-limits set by the legislator that are not in conformity with the fundamental right of a decision within a reasonable time.25 In its decisionof 4 September 201426 the Court quashed the decision of the General Court stating that the fact that the Member State was obliged to respect certain time limits, while the commission isnot, was contrary to both the principle of cooperation in good faith and the general principle of sound administration.27

If a time-limit is set, failure to comply with that is a failure to comply with the procedural rules relating to the adoption of an act adversely affecting an individual which

21 See Joined Cases T-213/95 and T-18/96 SCK and FNK v Commission [1997] ECR II-1739, paragraph 56, and Case T-127/98 UPS Europe v Commission [1999] ECR II-2633, paragraph 37)22 See Emilie Chevalier, Bonne administration et Union européenne, Bruylant 2014, p. 22923 SCK and FNK v Commission, paragraph 55. 24 Joined Cases T-305/94 to T-307/94, T-313/94 to T-316/94, T-318/94, T-325/94, T-328/94, T-329/94 and T-335/94 Limburgse Vinyl Maatschappij and Others v Commission (‘PVC II’) [1999] ECR II-931, paragraph 12625 See CJ 13 November 2014 C-447/13 P Nencini v. Parliament.26 CJ 4 September 2014 Case c-197/13 P Spain v. Commission27 Referring to Zwartveld and Others, C-2/88 IMM, EU:C:1990:315, paragraph 10.

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constitutes an infringement of essential procedural requirements,28 which is a matter for the Union judicature to raise, even of its own motion.29 The fact that the Commission did not adopt the decision at issue within the period set by the Union legislature constitutes an infringement of essential procedural requirements.

I should mention model rule III-9 the Research Network on EU Administrative Law published in 2014 as part of the Book III ofthe model rules on Single Case Decision-Making. According to this model rule, which is intended to be a rule additional to the general rule which is part of the right to good administration, special EU provisions should determine a time-limit, and if such a time-limit is not provided for this time limit will be three months.

2.4.3 Article 263 and 265 TFEU (le recours en carence)30

Article 265 TFEU provides for a legal action if the European Parliament, the European Council, the Council, the Commission, the European Central Bank or another EU institution, body of agency fails to act.31 The legal action will only be admissibleif this authority has first been called upon to act. If within two months after this call the authority still has not acted, an action may be brought before the Court within the following two months. This action is open to Member States and other institutions of the European Union. Also natural or legal persons can bring an action before the Court if it involves an act other than a recommendation or an opinion to be addressed to this person.

The legal action against this failure to act is limited to the legality of this silence. It also requires an obligation to act28 United Kingdom v Council, 68/86, EU:C:1988:85, paragraphs 48 and 4929 See the judgments in Commission v ICI, C-286/95 P, EU:C:2000:188, paragraph 51, and Commission v Solvay, C-287/95 P and C-288/95 P, EU:C:2000:189, paragraph 5530 See on this for example Safia Cazet, Le recourse en carence en droit de l’Union européenne, Bruylant 2012. 31 See similar provisions in earlier versions: Article 175 EEC Treaty and 232 TEC.

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and a clear description of the complainant of the act the authority should execute. Unlike many national systems EU law does not have the provision that if the required act was executed this act will automatically be subject to the legal action.

2.4.4 The Services Directive (Directive 2006/123/EC)

There are a few areas of EU law in which, on expiry of a time-limit, the fiction that the Commission’s silence constitutes anauthorisation applies.32 Such cases are rare. In some cases theCourt concluded that the Commission no longer had the power to adopt decisions simply on the basis of a failure to comply witha time-limit can be found in connection with the Cohesion Fund33 or the European Union’s climate change policy.34

The Services directive offers a clear and often discussed example of the relation between the policy to limit the administrative and regulatory burdens and the issue of administrative silence. The explanatory statements to the directive refer to the fundamental difficulties companies encounter because of the complexity, length and legal uncertainty of administrative procedures.

‘For this reason, following the example of certain modernising and good administrative practice initiatives undertaken at Community and national level, it is necessary to establish principles of administrative simplification, inter alia through the limitation of the obligation of prior authorisation to cases in which it is essential and the introduction of the principle of tacit authorisation by the competent authorities after a certainperiod of time elapsed.’

Article 13, third paragraph, requires Member States to design the authorisation procedures within the scope of this directive

32 See the opinions of AG Kokott in C-186/04, Housieaux EU:C:2005:70, point 35 and C-596/13 P Commission v. Moravia Gas Storage. 33 Spain v Commission, C-197/13 P, EU:C:2014:2157, paragraph 103, and Spain v Commission, C-429/13 P, EU:C:2014:2310, paragraph 3434 Judgment in Commission v Latvia, C-267/11 P, EU:C:2013:624, paragraphs 46 and 58.

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in a manner which provides applicants a guarantee that their application will be processed as quickly as possible and, in any event, within a reasonable period which is fixed and made public in advance. This time limit can be extended once in caseof complexity. Article 13, fourth paragraph, provides for an obligation for Member States to create a system of fictitious approval:

‘Failing a response within the time period set or extendedin accordance with paragraph 3, authorisation shall be deemed to have been granted. Different arrangements may neverthelessbe put in place, where justified by overriding reasons relating to the public interest, including a legitimate interest of third parties.’

As we will see in paragraph 3.3 on fictitious positive decisions the way Member States have interpreted this paragraphof Article 13 of the Services Directive differently. In Germanythe approach is that a fictitious approval (Genehmigungsfiktion) is exceptional, and should be provided for by specific acts,35 whereas in the Netherlands a fictitious approval is the rule, save for exceptions in specific legislation.36 Quite recently France has introduced a general rule similar to the Dutch rule.37 In Spain Article 6 of the implementing act, the Ley 17/2009 sobre el libre acceso a las actividades de servicios y su ejercicio refers to the existing rules in the Ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las AdministracionesPúblicas y Procedimiento Administrativo Común on the silencio administrativo positivo and the silencio administrativo negativo stating that

35 See § 42a Verwaltungsverfahrensgesetz.36 Article 28 Act on Services (Dienstenwet).37 See on this issue also Kars de Graaf and Nicole Hoogstra, ‘Silence is Golden? Tacit authorisations in the Netherlands, Germany and France,’ Review of European Administrative Law 2013-2, p. 7-34, and article 21 of the Loi n° 2000-321 du 12 avril 2000 relative aux droits des citoyens dans leurs relations avec les administrations which was changed by the Loi n° 2013-1005 du 12 novembre 2013 habilitant le Gouvernement à simplifier les relations entre l'administration et les citoyens.

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positive silence is the rule, negative silence the exception.38,39 2.4.5 The effectiveness of EU Law

In a few cases the Court of Justice reviewed national systems of administrative silence. In its decision of 26 June 200340 related to the freedom of access to information on the environment the Court held that ‘the fiction by which the failure of the authorities to reply is deemed to constitute an implied refusal cannot, as such, be considered incompatible with the requirements of Directive 90/313 on the sole ground that a tacit refusal by definition does not include any reasons. Moreover, as Community law currently stands, the wording of that directive does not provide sufficient justification for the alleged necessity that the refusal be accompanied by the reasons for it. (…)On the other hand, in the case of an implied refusal of a request for information relating to the environment, the reasons for that refusal must be notified within two months of the submission of the initial request, since that notification must, in that situation, be regarded as a response for the purposes of Article 3(4) of the directive. Consequently, it must be concluded that the Commission's fifth complaint is wellfounded only in so far as it alleges that the French Republic has failed to provide, in the case of an implied refusal of a request for information relating to the environment, that the public authorities are required to provide the reasons for thatrefusal automatically and at the latest within two months of 38 ‘En todo caso, deberán respetar las disposiciones recogidas en la Ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y Procedimiento Administrativo Común, así como garantizar la aplicación general del silencio administrativo positivo y que los supuestosde silencio administrativo negativo constituyan excepciones previstas en una norma con rango de ley justificadas por razones imperiosas de interés general.’39 See more elaborate on the implementation of the Services Directive U. Stelkens, W. Weisz and M. Mirschberger, The implementation of the EU Services Directive.Transposition, Problems and Strategies, The Hague: T.M.C. Asser Press 2012.40 Case C-233/00 Commission v France [2003] ECLI:EU:C:2003:371. The opinion ispublished under ECLI:EU:C:2003:12

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the submission of the initial request. The remainder of the complaint must, on the other hand, be dismissed.’

In 2005 the Court published three decisions Pierre Housieaux,41 Glaxosmithcline42 and Merck, Sharp & Dohne.43 In this case law the Courtdoes not seem to accept national systems of fictitious decisionmaking if EU legislation requires Member States to review factsand interests and give reasons before a certain time-limit. Member States remain obliged to decide upon application with anexplicit decision.

2.5 National Administrative law systems

The administrative law systems of many EU Member States providefor an obligation to act within a reasonable time (for example Belgium44 and Germany45). In most cases this obligation is focused upon individual decision upon application. Italy provides for a more general obligation of the administration toact,46 as well as Spain (obligación de resolver).47

As we will see the Dutch General administrative law act devotesa relatively big number of provisions on the issue of silence of the administration. Article 4:13 and 4:14 GALA provide for

41 ECJ 21 april 2005 case C-186/04 Pierre Housieaux ECLI:EU:C:2005:248. The opinion is published under ECLI:EU:C:2005:7042 ECJ 20 januari 2005 zaak C-296/03 Glaxosmithcline ECLI:EU:C:2005:4243 ECJ 20 januari 2005 zaak C-296/03 Merck, Sharp & Dohme44 See Ingrid Opdebeek, Country Analysis – Belgium, in: Oswald Jansen (ed.),Silence of the Administration in the EU (forthcoming).45 See Hans Christian Röhl, Country Analysis – Germany, in: Oswald Jansen (ed.), Silence of the Administration in the EU (forthcoming).46 M. Fromont, p. 222. See on this for example Guido Corso, Administrative Procedures: Twenty Years on, Italian Journal Public Law (IJPL) 2010, p. 282-283, 286-287 and Vera Pariso, Public authorities silence, administrative procedure and judicial review: a short general overview, Foro amm. TAR 2011, 12, 4188. 47 See Article 42 Ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común: ‘LaAdministración está obligada a dictar resolución expresa en todos los procedimientos y a notificarla cualquiera que sea su forma de iniciación.’ See M. Fromont, p. 223 and Vicenc Aguado I Cudolà, Country Analysis – Spain, in: Oswald Jansen (ed.), Silence of the Administration in the EU (forthcoming).

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general provisions on the obligation to decide within a reasonable time-limit:

4:13 1. An individual decision must be given within the time limit prescribed by law or, in the absence of such time limit, within a reasonable period after an application is received. 2. The reasonable period referred to in paragraph 1 shall in any event be deemed to have expired if the administrative authority has not given a decision or sent a communication as referred to in article 4:14.3 within eight weeks of receiving the application.

4:14 1. If an administrative authority is unable to give an individual decision within the time limit prescribed bylaw, it shall inform the applicant of this and state a period, which shall be as short as possible, within which the applicant can expect the decision to be given. 2. Paragraph 1 does not apply if the administrative authority will no longer be competent to take the decisionafter the expiry of the time limit laid down by law. 3. If in the absence of a statutory time limit the administrative authority is unable to give an individual decision within eight weeks, it shall inform the applicantof this and state a reasonable period within which the applicant can expect a decision to be taken.

Dutch legislation has many provisions providing for an explicittime-limit. The legislator has given Article 4:13 GALA a limited harmonizing effect on Dutch administrative law by giving this provision the character of a safety net provision.48 I should stress that the time-limit is not relatedto complete applications, but to all applications. The fact that an application does not contain all necessary documents mag lead to the decision of the administrative authority to request more information, which suspends the time-limit.

48 See on this Oswald Jansen, Country Analysis – the Netherlands, in: OswaldJansen (ed.), Administrative Sanctions in the European Union, Intersentia 2013, p. 355.

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Under the influence of more and stricter rules on silence of the administration the number of possibilities to suspend the time-limit have increased, as we can see in Article 4L15 GALA, which reads as follows:

4:15 1. The time limit for giving an individual decision shall be suspended as of the day following the day on which an administrative authority: a. invites the applicant to supplement the application pursuant to article 4:5 until the day on which the application is supplemented or the time limit allowed for this purpose expires without having been used. b. informs the applicant that it has requested a foreign authority to provide information which is reasonably needed for the decision on the application, until the day on which this information is received or further delay is no longer reasonable. 2. The time limit for giving an individual decision shall furthermore be suspended: a. during a period of postponement to which the applicant has agreed in writing, b. as long as the delay is attributable to the applicant, c. as long as the administrative authority is prevented from giving an individual decision due to force majeure. 3. In the event of force majeure the administrative authority shall inform the applicant as soon as possible of the fact that the time limit has been suspended, and also within which period the applicant can expect the decision to be given. 4. If the suspension ends, then in the cases referred to in subparagraph 1.b, or subparagraphs 2.b and 2.c, the administrative authority shall communicate this to the applicant as soon as possible, stating the time limit within which the decision must be given.

As a general rule the obligation of an administrative authorityunder Dutch administrative law to decide upon an application continues after it has failed to respect the time limit. This is illustrated by the rule that appeal does not affect this obligation according to Article 6:20, first paragraph, GALA, which reads as follows:

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If an appeal is directed against a failure to take a timely decision, the administrative authority shall still be required to take the decision, unless the interested party no longer has an interest in it as a result of the decision on the appeal.

Next to these explicit provisions on the obligation to act uponapplication, and the obligations stemming from international and EU obligations to act, Dutch administrative law has some unwritten legal obligations to act. The most import one would be the duty to enforce the law (handhavingsplicht). Other obligations would be on the basis of the principle of legitimate expectations (vertrouwensbeginsel) or the principle of due care (zorgvuldigheidsbeginsel).

3. The legal effects of administrative silence

In this paragraph I will focus on the legal consequences of an administrative authority unlawfully not acting. In many administrative law systems administrative silence means that some kind of fictitious situation comes into existence. This could be the legal fiction of an ‘omission’ or a ‘fictitious decision.’ This decision could be a fictitious negative decision (negative silence)(paragraph 3.1) or a fictitious positive decision (positive silence)(paragraph 3.2). The last one seems to be getting more and more popular in national administrative law systems. In most cases the administrative authority continues to be obliged to take a real decision, in some other cases the power to decide expires (prescription). Ifthe interested party involved suffers damaged because of the decision that fails to occur in many legal systems the governmental body can be held liable for these damages. I should mention here that according to case law of the ECtHR Member States should provide for possibilities (‘effective remedies’) for interested parties to claim damages (Article 6 and 13 ECHR).49 The EU Court follows this approach under article 47 CFR. In so far as I know the legal systems within

49 ECtHR 26 October 2000 Kudla v. Poland.

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the European Union only Dutch law has created the obligation ofadministrative authorities to pay periodic penalty payments to the applicant as a legal consequence of administrative silence.

3.1 The fictitious negative decision

The most traditional legal effect of administrative silence in many European administrative law systems is the fictitious refusal, the negative silence. Sometimes this refusal is indeeda negative decision on an application albeit fictitious (France,50 Spain). In other cases it is just an omission to act(Germany,51 Greece,52 the Netherlands). Its purpose is to provide for legal protection against inaction without adverselyaffecting the interests of third parties and the general interest. The French Loi n° 2013-1005 du 12 novembre 2013 habilitant le Gouvernement à simplifier les relations entre l'administration et les citoyens changed the previous system ofnegative silence as a rule into positive silence as a rule. This system is provided for in article 21 of the Loi n° 2000-321 du 12 avril 2000 relative aux droits des citoyens dans leurs relations avec les administrations. It now looks similar to the Spanish system in article 43 of the Ley 30/1992, de 26 de noviembre, de Régimen Jurídico de las Administraciones Públicas y del Procedimiento Administrativo Común. The Dutch system resembles the former French system as the niet tijdige beslissing (artikel 6:2 (b) GALA) is the rule, and the positive silence the exception by special legislation or statutes (Article 4:20a GALA). Similar to the former French system theseexceptions are numerous.

3.2 The periodic penalty payments

50 Chryssoula Moukiou, Country Analysis – France, in: Oswald Jansen (ed.), Silence of the Administration in the EU (forthcoming); Rozen Nogellou, in:Oswald Jansen (ed.), Comparative Inventory of Silencio Positivo, Institute of Constitutional an Administrative Law, Utrecht School of Law, september 2008.51 Hans Christian Röhl, Country Analysis – Germany, in: Oswald Jansen (ed.),Silence of the Administration in the EU (forthcoming).52 Chryssoula Moukiou, Country Analysis – Greece, , in: Oswald Jansen (ed.),Silence of the Administration in the EU (forthcoming).

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If I am not mistaken, Dutch administrative law is the only European system with the possibility to impose periodic penaltypayments to force administrative authorities to take a decisionwhen they exceeded the time limit. These provisions were added to the General Administrative Law Act with the Act on periodic penalty payments and direct appeal in case of failure to take atimely decision (Wet Dwangsom en beroep bij niet tijdig beslissen) on 1 October 2009.53 It is part of a relatively big number of provisions (22) in the Dutch General Administrative Law Act dealing with administrative silence.54 The starting point of this regulation is the failure to take a timely decision (niet tijdige beslissing). Unlike the fictitious negative decision (fictitious refusal: fictieve weigering) or the fictitious positive decision (positieve fictieve beschikking bij niet tijdig beslissen or Lex Silencio Positivo (LSP)) the legal fiction of the niet tijdige beslissing is withoutsubstance.55 According to Article 6:2 this niet tijdige beslissing is not an order (besluit) (article 1:3 GALA), but it is equated witha decision ‘for the purposes of the provisions of law on objections and appeals.’ This is how the Dutch legislator has created the possibility of legal action and legal protection byadministrative courts.

According to article 4:17 GALA the administrative authority which fails to give a timely individual decision on an application forfeits periodic penalty payments to the applicantfor each days it continues in default, up to a maximum of 42 days. The penalty is € 20 per day for the first fourteen days, € 30 per day for the next fourteen days and € 40 per day for all subsequent days. The first day in respect of which the penalty is payable is the day two weeks after the day on which the time limit for giving the individual decision expires and

53 Staatsblad 2009, 383.54 Article 4:13 – 4:20f, 6:2 (a), 6:12, 6:20, 7:1, first paragraph (e), 8:55b-8 :55f GALA (22 Articles). 55 I should add that at first case law interpreting the niet tijdige beslissing continued with the approach of case law interpreting the fictieve weigering of the former Wet Arob. This changed with the decision of the Administrative Law Division of the Council of State of 3 December 1998, ECLI:NL:RVS:1998:ZF3644.

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the administrative authority receives written notice of defaultfrom the applicant. This written notice of default (ingebrekestelling) is also an important requirement for access to an administrative procedure at the courts (Article 6:12, secondparagraph, GALA). The penalty is not suspended by an appeal (article 4:17, fifth paragraph, GALA) which is in line with Article 6:20, first paragraph, GALA which makes clear that the obligation of the administrative authority to take a decision upon application continues to exist after its passing the time limit to decide.56

This regulation of periodic penalty payments is completed with provisions on the obligation to determine the total amount of periodic penalty payments with an order by the administrative authority (article 4:19 GALA)57 and with provisions on the possibilities of the administrative courts (8:55c GALA) to determine these periodic penalty payments next to their power to impose periodic penalty payments to enforce their order to the administrative authority to take a decision (Article 8:55d GALA).

3.3 The fictitious positive decision58

56 Article 4:17, sixth paragraph provides for three exceptions to the obligation to pay periodic penalty payments which I consider to have no legal effect as they are systematically wrong. They are : a. a notice of default was given to the administrative authority at an unreasonably late date, b. the applicant is not an interested party, and c. the application is manifestly inadmissible or manifestly unfounded. The clearest example toillustrate my opinion that these exceptions have no legal effect is that the whole set of provisions is applicable on application of interested parties. This means that they do not apply when the applicant is not an interested party. Therefore the exception under b. had no added legal valueat all. See in more detail: Oswald Jansen, ‘Niet tijdig beslissen. Een ingewikkelde juridische regeling voor een praktisch probleem” Juncto, 2(21),p. 60-63. 57 Article 4:20 GALA provides for the possibility of administrative authorities to claim back penalty payments that are unduly paid to the applicant.58 See on this for example Kars de Graaf and Nicole Hoogstra, ‘Silence is Golden? Tacit Authorizations in The Netherlands, Germany and France’, Review of European Administrative Law 2013-2, p. 7-34, and Oswald Jansen (ed.), Comparative Inventory of Silencio Positivo, Institute of Constitutional andAdministrative Law, Utrecht School of Law, September 2008.

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In a letter to the Dutch parliament of 18 December 200759 the State Secretary of Economic Affairs presented the opinion of the Dutch government explaining its view on Lex Silencio Positivo (LSP), a system of administrative decision making by default. It is considered to be one of the possible means to stimulate timely service by administrative authorities. At that moment the Services Directive (EC directive 2006/123) played a role inthe background, especially article 13, fourth paragraph. In an opinion that the government had asked for in order to prepare its own opinion on this subject, the Dutch Council of State (Raad van State) pointed out a number of problems and disadvantages of this system of fictitious decision making. TheDutch government also recognised these, but was of the opinion that they can be dealt with in many cases. This resulted into ageneral regulation on silencio positivo which was added to the DutchGeneral Administrative Law Act with the act implementing the Services Directive, the act on Services (Dienstenwet),60 which was enacted 28 December 2009. In order to implement Article 13, fourth paragraph, of the Services Directive article 28 of the the Dutch Act on Services (Dienstenwet) provides for the general rule of positive silence, save for exceptions provided for in special legislation.61 The general regulation of fictitious positive decision making (positieve fictieve beschikking bij niet tijdig beslissen) in Article 4:20a -4:20f GALA applies. Next to the ambit of the regulation on positive silence of the Dienstenwet many other provisions were introduced as a result from an active policy of Dutch government62 and local authorities.59 Parliamentary Documents (Kamerstukken) II 2007-2008, 29 515, nr. 22460 Staatsblad 2009, 503. Also see Staatsblad 2009, 505 and Parliamentary Documents (kamerstukken) nr. 31 579.61 These exceptions were introduced into national legislation with the Act on the Exceptions from the Act on Services’ regulation of positive silence (the official Dutch title of this act is the Wet van 7 april 2011 tot wijziging van de Algemene wet bestuursrecht, de Dienstenwet en enige anderewetten ter vastlegging van uitzonderingen op de toepasselijkheid van de positieve fictieve beschikking bij niet tijdig beslissen ingevolge de Dienstenwet. This act was enacted on 1 January 2012 and can be found in Staatsblad, 201. Also many other local authorities have introduced exceptions into their own legislation. 62 For example with the Verzamelwet van rechtswege verleende vergunning (Staatsblad 2011, 575) which added provisions in 20 Acts outside the ambit

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Articles 4:20a-4:20f GALA provide for a regulation on the positive fictitious decision (positieve fictieve beschikking bij niet tijdig beslissen) with the character of facultative law. This means thatthese provisions only apply when a special act or statute so stipulates. This has been done in many cases, such as Article 28 Act on Services (Dienstenwet). According to this general regulation the fiction after failing to respect the time-limit is not only that the decision applied for is given, but also that this is an order (article 1:3 GALA). The administrative decision enters into force three days after the time-limit has passed. The administrative authority is obliged to officially notify within two weeks that this decision was given fictitiously. If it does not comply with this duty the regulation on periodic penalty payments applies on this duty tonotify.63 In article 4:20e and 4:20f GALA some provisions are added about the possibility to add conditions to fictitious decisions or to withdraw them in order to avoid serious consequences affecting the general interest. The administrativeauthority should do so within six weeks.

Legal action in Dutch administrative law should be taken within6 weeks after notification of the administrative decision (Article 6:7 GALA). An interested party who has justifiable reasons to be later than that could still be admissible according to article 6:11 GALA which reads as follows:

A notice of objection or appeal filed after the end of thetime limit shall not be declared inadmissible on this ground if the person filing the notice cannot reasonably be held to have been in default.

There are many objections to think of against the legal instrument of the fictitious positive decision, and in Dutch doctrine they have been made as well as in other European of the Dienstenwet. See on the policy of the Dutch Government and the results also the 2010 OECD report on Better Regulation, p. 96-97.63 I should clarify that according to Article 4:20a, second paragraph, GALA the provisions on periodic penalty payments do not apply if the provisions on the fictitious positive decision are declared applicable by the legislator.

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countries. Obviously, these fictitious decisions are not a result of the preparation due, of the weighing of interests required and they do not give reasons. Nor have they been notified in the right way, etc. These objections distract us from the real issue at hand. The administrative authority has failed to respect the time-limit set by the legislator, and thecitizen or the company who has put effort and money in an application cannot proceed because of that. The fictitious positive decision improves his legal position vis-a-vis the failing administrative authority. The legal position of the applicant is brought more in the direction of a real positive decision because of the limitations to withdraw a decision of the principle of legal certainty.64 The administrative authority should remain obliged to bring the applicant in the same position as the holder of a real administrative decision, or use the same powers it has to withdraw wrong decisions on this fictitious one and accept liability.

In some national legal systems of fictitious decision making bydefault use lists or descriptions of decisions that should not be taken fictitiously. In Italy the rule of fictitious positivedecisions cannot be applied for the acts and proceedings concerning cultural heritage, environment, national defence, public security, immigration, public health, and all the cases in which European Law requires a formal act. In France the fictitious positive decision will not apply if it would be against public order, International law, the protection of liberties or other constitutional rights of if it involves a financial demand (except for social security). In Portugal it is not possible to create a fictitious positive decision of permission or authorization of town and country planning operations if this would mean breach of orders or prohibitions intended to safeguard environment protection, historical and cultural heritage protection and regional and town and country planning standards and natural, ecological or agricultural reserve protection, nor is it possible to create a fictitious positive decision if the damage caused to third parties

64 Bernardo Diniz de Ayala and Ricardo Guimaraes, Country Analysis - Portugal, in: Oswald Jansen (ed.), Silence of the Administration in the EU (forthcoming)

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protection and public interest safeguards outweighs the social damage of delay caused by failure to decide.

4. Legal protection

The national legal systems of legal protection and of administrative silence are in many cases communicating vessels.Many systems follow the French example of the requirement of some kind of an administrative decision to have legal action against administrative authorities. The German system of legal protection entails the action for the issuance of an administrative act (Verpflichtungsklage), which is called the suit for inaction (Untätigkeitsklage), in these kind of cases. The administrative judge can order the administrative authority to act, and therefore the German legal system does not need a fictitious decision or situation to offer legal protection to the interested party.65 The legal systems in England and Wales as well as Ireland have a similar possibility of mandamus, although their system do not have a general obligation of the administrative authority to decide upon an application.66 In Finland the most important remedy against failure to act is offered by the Ombudsman, judicial remedies are not available.67 In Luxemburg as well as Italy a special official or commissioner can be appointed by the court to replace the administrative authority that failed to take the decision required, which is a remarkable solution to solve the issue of separation of the judicial powers from the administrative power.Following the French example Dutch law requires an administrative decision (order) to take action against administrative silence. To make this possible the untimely decision (niet tijdige beslissing) is equated to an administrative 65 Hans-Christian Röhl, Country Analysis - Germany, in: Oswald Jansen (ed.),Silence of the Administration in the EU (forthcoming) 66 See Fromont, p. 225 and Gordon Anthony, Country Analysis – England and Wales and John O’Dowd, Country Analysis – Ireland, in: Oswald Jansen (ed.),Silence of the Administration in the EU (forthcoming).67 See Outi Suviranta, Country Analysis - Finland, in: Oswald Jansen (ed.), Silence of the Administration in the EU (forthcoming).

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decision for the purposes of the GALA provisions on legal protection (Article 6:2 (b) GALA). Dutch procedural law provides for a fast track administrative procedure in two ways.First of all, the rule that an objection must be lodged and decided upon before appeal to an administrative court does not apply (article 7:1, first paragraph (e) GALA). Secondly, a special fast procedure applies to the appeal of a untimely decision. In this procedure it is possible to have a judgment without a hearing in less than ten weeks after the time limit has passed.68 If the district court finds the appeal well-founded, the judgment may also determine the sum of the periodic penalty payments forfeited (article 8:55c GALA) and the order to the administrative authority to notify a decision within two weeks after the date of dispatch of the judgment with a further obligation to pay periodic penalty payments (article 8:55d GALA).69 In short, this fast track procedure gives citizens and companies the possibility to have a decisiontaken by an administrative authority within 12 weeks after the time-limit has passed.

As administrative authorities remain obliged to decide after the time-limit has passed (article 6:20, first paragraph, GALA)and they normally do not want a judge to decide that they fail to respect time-limits, they will notify a decision shortly after the interested party has taken action. If they notify thedecision after the time-limit has passed, and within two weeks after a notice of default was sent by the interested party, the68 According to article 6:12, second paragraph, GALA a failure to take a timely decision is open to appeal as soons as two weeks have passed since the interested party sent the administrative authority a written notice of default. According to article 8:55b, first paragraph, GALA the district court shall give judgment within eight weeks after the notice of appeal is received and the notice of appeal is complete, unless the court considers it necessary to hold hearing.69 The district courts have published judicial policy rules on determining these periodic penalty payments. According to these judicial policy rules the starting point is € 100 per day with a maximum of € 15 000. If the the interests involved are small, the amounts will be half (€ 50 per day; maximum of € 7500. If a strong incentive is needed because of unwillingnessof the administrative authority involved or big interests involved the amounts will be € 250 per day and the maximum € 37 500.

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administrative authority will not have to pay periodic penalty payments, and the interested party will not lodge an appeal. Ifthe decision is notified more than two weeks after the interested party sent a notice of default and had filed his notice of appeal, the appeal against the failure to take a timely decision will also be directed against the subsequent decision, unless the latter fully satisfies the appeal (article6:20, third paragraph, GALA).70

I have the impression that the effectiveness of a legal action against a failure to act is depending a lot on the powers courts have to force the administrative authority to act, and the speediness of the procedure to have a court’s decisions. Citizens and companies do not seem to have had an effective remedy if after a relatively long procedure against a failure to act the only decision the court can take is that the appeal is well founded. The powers national system give to courts to do more than this strongly depend on the national approach of the balance of powers between courts and the administration. I think that lawyers from administrative law systems such as the ones in Luxemburg and Italy would not easily consider powers ofcourts to force the administration to act comparable with the powers in the Dutch system I just described or the German system suitable for their own systems.

In many cases citizens and companies would not prefer to initiate court proceedings to solve the kinds of problems I am discussing in this contribution. A system of fictitious negative decisions presupposes possibly lengthy court proceedings they do not prefer. Therefore, administrative law scholarship should probably find other solutions to tackle the problem of failing to act within time-limits.

Fictitious positive decisionsAs far as fictitious positive decisions are involved, they follow the judicial path of regular administrative decisions. 70 According to Article 6:20, second paragraph, GALA an administrative authority shall without delay communicate this decision to the administrative court.

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Some specific provisions are needed though. The applicant has afictitious decision which gives less certainty than a real decision and more than just a fictitious negative decision. Hisinterest would be to get a better legal position, for example by getting a real decision with the same legal effect or the next best thing, which is a written notification. Third partieswould like to know of this decision in time to be able to appeal and to request for law enforcement of the activity fictitiously granted. The administrative authority involved could find that general interests involved are harmed. The authority would like to be able to withdraw an administrative decision. What legal protection or guarantees should be offeredhere?

As far as third parties are involved many administrative law systems would have a provision comparable with the following one in article 6:11 GALA:

‘A notice of objection or appeal filed after the end of the time limit shall not be declared inadmissible on this ground if the person filing the notice cannot reasonably be held to have been in default.’

This means that a third party will be admissible if he was informed on the decision only after the appeals’ time limit andpromptly lodged an appeal. This means this third party has the same legal position as in case this decision would be a real, possibly completely wrong decision which was not notified to him (which is not always required).

The applicant applied for a real decision but got a fictitious one. In real life in many cases this has to be explained to himby a lawyer as the only thing the applicant knows is that the administrative authority takes a long time to decide or is in fact too late. As far as his legal certainty is involved, he does not have a real decision but the administrative authority has to explicitly recognise his rights when it considers the

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withdrawal of the fictitious decision.71 Sometimes the legal procedural position of the applicant is made worse by the legislator in case of a fictitious positive decision compared with a real one. In Dutch administrative law objection or appeal does not suspend the operation of the decision challenged (article 6:16 GALA). This rule applies to real building permits, but if fictitious permits are involved the WABO (the act on building and environment) makes an exception to this rule. And of course, the number of successful grounds of appealagainst a fictitious positive decision are numerous which makesthe legal position of the applicant vulnerable.

5. Dutch evaluation of legal instrument to speed up administrative decision making

I should point briefly at a recent evaluation of the effectivity of three legal instruments in Dutch GALA aimed at speeding up administrative decisionmaking.72 These instruments are the periodic penalty payments, the possibility of direct appeal and the positive fictitious administrative decision I described above. The evaluative research involved all decisionsfor which these instruments may be deployed, and the full diversity of administrative authorities and actors involved (like the centra state, provinces, municipalities, regional water boards, administrative courts and judges. Lawyers, citizens and companies).

According tot his report the existence of the acceleration-instruments contributes to the awareness within the administration. Attention for the timeliness of decision-makinghas increased as a result of it. This increase of attention corresponds to the increase of attention as far as the quality 71 In order to make a system of fictitious positive decision making more effective and to respect to legitimate rights of applicants the withdrawal of fictitious positive decisions should be subject to the same rules as real positive decisions. 72 B.J. Schueler et al., Evaluatie van een drietal versnellingsinstrumenten uit de Awb, ’s-Gravenhage: WODC 2013. This report with english summary can be found at: https://www.wodc.nl/onderzoeksdatabase/evaluatie-van-de-werking-van-de-lex-silencio-positivo.aspx?cp=44&cs=6796. The english summary at https://www.wodc.nl/images/2172-summary_tcm44-520752.pdf.

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of service of the administration in general (apart from the three acceleration-instruments) is concerned.

According to the researchers the preventive effect of the ‘astreinte’-instrument has been the result mainly of the fact that those ‘astreintes’ identify and quantify in a clear way the exceedance of time limits for decision-making. The preventive effect of the instrument ‘appeal in case of not deciding in time’ turns out to be very limited, mainly because citizens and companies only rarely choose to use this instrument and, if they do, the administrative authority will be able to take the decision belatedly. As far as licences under to which the lex silencio positivo applies is concerned it turns out that only very few positive fictitious decisions have been ‘issued’. This is a bit different as far as non-services licences are concerned. Environmental licences have been issued ‘automatically’ more often, which might be explained by the numerous applications for such a licence. According to the research if the lex silencio positivo applies the preventive effect is quite strong. This can beexplained by the fact that administrative authorities (and officials) do not want to beresponsible for the damaging effects that a fictitious licence might have on the interests ofthird parties and the general interest as such. The effectiveness of this acceleration-instrumentin individual cases turns out to be problematic though. An applicant who has obtained afictitious licence might legally assume to be in the possessionof a licence, but this licence issurrounded with many more uncertainties compared to a genuine licence. Also this applicantlacks the two other instruments, the ‘astreinte’ and the appealin case of not deciding in time.The increased attention for timeliness can be attributed only in part to the accelerationinstruments that were part of this research.

6. Some considerations and conclusions

In this contribution I gave a short overview of the legal sources of the obligation of the administrative authority to

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act. The theme of administrative silence has been subject of studies in national administrative law scholarship for a long time. The approach started with a focus on legal protection, but by now more and more non judicial legal techniques have been introduced to force public administration to act in time. Also arguments and approaches with a more economic and socio-legal character have gained much more influence at the discussion of this issue. The classic image of a judge or ombudsman providing the sole possibility to force public administration to act does no longer cover the reality of the administrative decision making process. Non judicial solutions such as fictitious decision making are chosen more often, also because of international influences and/or obligations (EU directives, OECD reports). The objections by legal scholarship against decision making by default seem to be similar in all EUMembers ships involved. Nevertheless, we see an increase of this legal instrument. I think this is caused by the fact that the same legal scholarship was debating the issue of administrative silence for a very long time without offering effective solutions in time. This could also have been caused by a lack of communication between the administrative law scholarship and the scholarship on the field of economy, administrative sciences etc.

Still there are many differences between the way administrativelaw systems within Europe deal with administrative silence. These differences have a strong relationship with the national approach of the division of the judicial and administrative powers, and with the way the national system of legal protection is organized.

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