Implicit administrative acts. Part one

Abstract

Based on the comparative legal method, the article analyzes the use of the construction of implicit (fictitious) decisions in Russian and several European legal orders, when the inaction of the public administration is equated with the adoption of an administrative act. In the first part of article the author provides a brief overview of the evolution of the legal regulation of the silence of public administration in France, the Netherlands and Germany, and considers the influence of the Directive 2006/123/EC of the European Parliament and of the Council of December 12, 2006 on services in the internal market (Services Directive) on the development of the institution of implicit decisions in the EU countries. The paper analyses the conceptual basis and the main arguments pro et contra of two models of implicit administrative acts — a negative decision (based on the principle of “silence is a sign of refusal”) and a positive decision (based on the principle of “silence is a sign of consent”). Despite political slogans and formal proclamation in legislation, in fact, a mixed model is implemented in European national legal systems, combining both principles. The functional meaning of implicit administrative acts has undergone a significant evolution. The initial purpose of this construction was to provide the possibility of appealing against the inaction of public authorities in those legal acts that allowed judicial review only of administrative acts. In the future, the construction of implicit administrative acts began to be used as a tool for increasing the efficiency of public administration, simplifying and speeding up administrative procedures, and stimulating economic activity.