Administrative Silence in Swedish Law

This chapter examines the legal regulation regarding administrative silence in Swedish administrative law. The main aim is to give an overview of the legal instruments to prevent and challenge administrative silence in Swedish administrative law and to identify any possible gaps or weaknesses in the system. Traditionally, the term ‘administrative silence’ is not used in Swedish administrative law; instead, Swedish administrative regulation, case-law, and literature may refer to the term ‘measures if the processing is delayed’ or ‘delay or passivity in the administration’. However, the fundamental problem as well as the aim of the legal remedies are the same: to prevent and challenge unreasonable delays in the processing of the administration.
General legal mechanisms against administrative silence were introduced in Swedish administrative law for the first time with the 2017 Administrative Procedure Act (2017:900) (förvaltningslagen,‘FL’) that entered into force in 2018. However, before this, Swedish law already contained sector-specific provisions regarding administrative silence, introduced to fulfil the requirements of the European secondary legislator. The general provisions regarding administrative silence under FL are designed to fit the traditional Swedish administrative system. For this reason, the legislator has not developed a model where administrative silence can lead to a negative or positive fictitious decision; instead, the model means that when an administrative authority is delayed decision-making, it may be forced to decide on the matter at hand. This could be compared with the sector-specific provisions, according to which administrative silence may lead to either a negative or a positive fictitious decision.