Understanding Administrative Silence: Legal Concepts and Effects

Administrative Silence: Concept and Scope

Unlike expiration, administrative silence provides an answer on the substance of the matter.

Types of Administrative Silence

• Negative Administrative Silence: The interested party may consider their claim rejected by silence, allowing them to file administrative or judicial appeals as appropriate (Art. 43.3).
• Positive Administrative Silence: The perfection of administrative silence implies the approval of the claim made by the individual.

Cases of Silence

• Article 43.1 establishes that in proceedings initiated at the request of the interested party, if the maximum deadline for notification passes without a resolution, the request is understood to be estimated or rejected by administrative silence, as appropriate.
• Each procedure is subject to a specific form of silence.
• Law 30/1992 established a general rule of positive silence for procedures initiated at the request of an individual.

Cases of Negative Administrative Silence

Negative silence can only be established by force of law, except for general assumptions:

• Challenging acts and provisions: When an appeal is brought against the tacit rejection of an administrative request due to the passage of time, if the competent administrative body does not issue a specific resolution, it is understood to be rejected.
• Liability claims: As per Article 142.7.
• European Community Law: When established by standard or European regulation.

Cases of Positive Administrative Silence

Specific rules governing the Public Administration, including regulations, may explicitly set positive silence, except where the law itself establishes negative silence.

Privacy and Default Rules

In the absence of a specific determination to the contrary (which must be established by law), interested parties can understand their applications as approved, i.e., positive silence.

Improvement and Accreditation of Silence

Articles 43.1 and 43.5 demonstrate that administrative silence is perfected differently depending on whether it is positive or negative:

• Positive Silence: Perfected by the mere expiration of the deadline for resolving and notifying, without requiring any action from the interested party (no certification of the alleged act is needed).
• Negative Silence: Not automatic upon the expiration of the term; it is a possibility provided to the interested party, which they may or may not choose to utilize.