Sometimes, after we submit an application to an administrative agency, it seems as though nothing is happening. Weeks go by, then months, and there is still no decision. This kind of wait can be very unpleasant, especially when an important life situation or the disbursement of funds depends on the agency’s decision. This applies, for example, to decisions regarding cash social assistance, child allowance, reduced kindergarten fees, school meal subsidies, and other entitlements funded by public resources. An individual may thus find themselves in a situation where they submitted their application on time and meet all legal requirements, yet are forced to wait an unreasonably long time for the competent authority’s decision. Although in practice it may seem that waiting for a decision is something an individual must simply accept, this is not the case. The law sets deadlines by which the administrative authority must, as a rule, make a decision.

Under the General Administrative Procedure Act (ZUP), an authority must issue a decision as soon as possible, no later than one month when deciding in an expedited fact-finding proceeding or when no special fact-finding proceeding is required prior to issuing the decision, or within two months when a special fact-finding proceeding must be conducted prior to issuing the decision. In more complex cases, the deadline may, exceptionally, be extended by up to two additional months. In such a case, however, the authority cannot simply remain silent. It must notify the party of the extension, explain the reason for the extension, and specify the timeframe within which the party can expect a decision.

It is therefore important to know that administrative authorities are also bound by statutory deadlines, and that in the event of their inaction or failure to meet the prescribed deadlines, the party does not have to wait indefinitely for a decision. It is precisely such situations that are governed by the concept of administrative silence. Simply put, this refers to a situation where the competent authority fails to issue and serve a decision on an individual’s request within the prescribed time limit. Such a situation can be very unpleasant for the individual, but the law provides legal remedies in such cases that allow the individual to move the proceedings forward and ensure that the competent authority finally decides on their application. Many individuals are often unaware of these options or do not know when they can use them, whom to contact, or what the deadlines are. This is precisely why it is important that an individual who has been waiting too long for a decision does not limit themselves to making phone calls and making inquiries, but also understands the legal remedies available to them.

If an administrative authority fails to issue and serve a decision within the statutory time limit, an individual may file a complaint based on the authority’s failure to act. This constitutes a special type of complaint. Since there is no decision against which a complaint could be filed, the law provides that the party’s request is deemed to have been rejected. By filing such a complaint, the party can thus ensure that the second-instance authority begins to address their case. It is important that the party not file the complaint too early—it may only be filed after the statutory deadline for issuing a decision (one month or two months) has expired. Once this period has expired, however, the party is not bound by the usual appeal deadline when filing an appeal based on the authority’s failure to act. The appeal may be filed at any time until the first-instance authority issues and serves its decision. An appeal based on the authority’s failure to act is not possible only in cases where the first-instance authority has not yet issued a decision at all. A similar situation may also arise when the first-instance decision has already been issued, but the second-instance authority has set it aside during the appeal proceedings and remanded the case to the first-instance authority for a new decision. Even in such a case, the first-instance authority must issue a new decision within the time limit prescribed by law. If it fails to do so, the party may, due to the authority’s failure to act, again exercise the legal remedies provided by law for cases where the authority fails to decide in a timely manner.

Upon filing an appeal, the case is referred to the second-instance authority for review. The second-instance authority requests an explanation from the first-instance authority as to why the decision was not issued in a timely manner. If the second-instance authority determines that there was a valid reason for the delay or that the delay was caused by the party, it may extend the deadline for the first-instance authority to issue a decision. The extension may last no longer than one month. If the reasons for the delay are not justified, however, the second-instance authority generally may not simply set a new deadline and wait for the first-instance authority to decide. In this case, it must take a highly proactive approach, obtain the case file from the first-instance authority, and then issue the decision itself. Only in exceptional cases may the second-instance authority return the case to the first-instance authority if it determines that the latter will conduct the proceedings more quickly and cost-effectively. It is important to emphasize that the mere fact that an authority is burdened with a large number of cases does not, in and of itself, mean that an individual must wait indefinitely as a result. The same applies to other organizational circumstances on the part of the authority. When assessing whether a delay is justified, it is therefore important to consider what the actual reason for the delay is and whether it can be considered justified. The Administrative Court has also repeatedly addressed the issue of the justification of reasons for delay in its case law¹.

An individual’s legal protection does not end with an appeal filed due to an authority’s failure to respond. The second-instance authority must also decide on the appeal within the time limit prescribed by law. Under the currently applicable regulations, a decision on the appeal must be issued as soon as possible, no later than two months after receipt of the appeal. If the second-instance authority also fails to decide in a timely manner, the party may file a special motion with it requesting that it finally decide on the appeal. If, even after this new request, a decision is not issued within the next seven days, the party may initiate an administrative dispute on the grounds of the authority’s failure to act. In such a case, the law provides that the party may initiate an administrative dispute as if their appeal had been rejected.

All of the above means that an individual who has been left without a response due to an administrative body’s failure to decide has several successive legal options available. The purpose of these options is simple: to prevent the individual from remaining indefinitely without a decision regarding their right or legal interest due to the administrative body’s inaction. A prolonged decision-making process by an administrative body is problematic for an individual not only because they must wait for a decision. Due to the lengthy proceedings, the factual circumstances or regulations relevant to the decision regarding their right may also change in the meantime. This can place the individual in a rather unfavorable position. Let’s imagine that the individual filed an application at a time when they met certain legal requirements, but then the law changed and established stricter requirements. If the authority had decided in a timely manner, the application would have been processed under the previous rules. However, due to the administrative authority’s failure to act, the individual could be treated more strictly or less favorably as a result of the change in legislation. This situation raises an important question: Can an individual, simply because the administrative authority failed to decide in a timely manner, lose the opportunity to exercise a right under the conditions that were in effect when the application was filed? The Constitutional Court of the Republic of Slovenia also addressed this issue in its decision No. Up-304/01-27 dated May 20, 2004. In the case at hand, the administrative authority took an unreasonably long time to decide on the application for Slovenian citizenship. During the decision-making process, the law was amended to impose a stricter requirement regarding proficiency in the Slovenian language. As a result, due to the authority’s protracted decision-making process, the individual would have been subject to stricter rules that were not yet in effect when he filed his application. The Constitutional Court emphasized that the statutory deadlines for decision-making are not intended solely for the organization of the work of administrative authorities. They are also important for the protection of an individual’s rights and legal certainty. If an administrative authority were allowed to take significantly longer to decide than permitted by law, the likelihood would increase that circumstances or regulations might change during the proceedings, thereby placing the individual at a disadvantage. This example clearly illustrates why it is important that an individual not be left waiting indefinitely in the event of silence from the authority. Timely action is not important merely to obtain a decision as soon as possible. It may also be important to prevent the individual from being placed in a less favorable legal position due to the authority’s prolonged decision-making process. When making a decision, it is necessary to take into account the factual and legal situation that existed at the time the party filed their complaint due to the authority’s failure to respond.

If the administrative authority does not decide on your application within the statutory time limit, you do not have to simply wait and hope that a decision will eventually be issued. In the event of the authority’s silence, the law provides you with legal remedies that you can use to ensure that the proceedings continue and that the competent authority actually decides on your application. If you believe that the administrative authority is taking too long to decide on your application and you are unsure whether the deadline for a decision has already passed, what legal remedies are available to you, and how to file them correctly, our law firm can assist you in assessing your case and determining the next steps.

[1] UPRS sodba in sklep II U 134/2016 dated 04.05.2016