Administrative silence is a principle and concept that is of particular interest to taxpayers when they submit a letter or application to a public administration body in order to mitigate the endless waits involved in administrative procedures. Administrative silence is intended to be a tool for the taxpayer’s legal certainty, whether this silence is positive or negative, and is based on the Administration’s obligation to expressly resolve any procedure, regardless of how it was initiated.
Positive administrative silence
As its name suggests, positive administrative silence has a positive effect for taxpayers simply with the passage of time. This means that if taxpayers do not receive a response within the legally established time limit, their application can be considered accepted by the public administration.
The most common examples are affidavits regarding the habitability of a dwelling. The architect submits a declaration of responsibility stating that the dwelling meets the habitability requirements set by the relevant department of the municipality in which the dwelling is located, and this submission almost automatically becomes a habitability permit.
Positive silence provides legal certainty to the taxpayer in the sense that they know that the Public Administration cannot, in principle, reject their application after the legally established deadline. We say “in principle” because in administrative law there are numerous exceptions to exceptions. In the aforementioned example of the affidavit, there is a possibility that the public administration may review the requirements, after which it may deny the habitability of a dwelling. More on this will be explained in another specific article on the affidavit.
Negative administrative silence
On the other hand, there is negative administrative silence, which is the most commonly applied type of administrative silence. This type of administrative silence means that the taxpayer’s application can automatically be considered rejected once the legally established deadline has passed.
Although this sounds very negative for the taxpayer, it is not always the case. The expiry of the deadline for negative administrative silence does not mean that the application has actually been rejected. The Administration may – after the deadline – approve the application.
Negative administrative silence exists to avoid endless waiting in administrative procedures in the sense that, once the deadline has passed, it is possible – although not mandatory – to appeal the tacit rejection to the next body in order to speed up the administrative procedure.
Negative silence is therefore not as negative as it may seem at first glance. It is a mechanism to protect the taxpayer from endless waiting until a public administration body deigns to respond to the taxpayer.
Administrative silence applies to any procedure that confers rights on the taxpayer (e.g. application for a building permit), and procedures for challenging acts and provisions, or rather, appeals lodged.
Deadlines for administrative silence
The deadlines established for both positive and negative administrative silence depend on each case. There are cases in which the law has regulated a specific deadline for this, in which case that deadline must be met. For example, the Economic-Administrative Courts usually have a period of one year to respond to a claim filed before them.
For general cases in which the specific law has not established a specific time limit for administrative silence, the regulations established in Law 39/2015, of 1 October, on the Common Administrative Procedure of Public Administrations must be complied with. This law establishes the following time limits:
– General maximum: 6 months, except in the case of a law or European Union regulation.
– Appeal: 3 months
– Optional appeal for reversal: 1 month
– Appeal for review: 3 months
– Economic-administrative claim: 1 year
Is there administrative silence in my case?
In practice, one of the most common mistakes is to assume that administrative silence has already occurred when the time limit has not yet begun to run correctly, has been interrupted, or to assume that there is positive administrative silence instead of negative administrative silence. This can have consequences for the future of your case and you may lose opportunities to appeal your rights before the Administration once you receive notification that the matter has been settled.
If you have submitted an application, appeal or complaint and have not yet received a response, we can help you analyse whether administrative silence has already occurred, what type of silence applies in your case and what is the best strategy to protect your rights before the Administration.
A timely review can make the difference between moving forward and obtaining your rights or being stuck for years. If you would like us to analyse your case, please do not hesitate to contact us using the contact form.
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