SILENCE ON THE PART OF PUBLIC AUTHORITIES IS NOW DEEMED TO SIGNAL ACCEPTANCE….SUBJECT TO THOUSANDS OF EXCEPTIONS
Marine Péchenard, Lawyer
At the outset, it was a fine idea – if the public authority does not respond to a request from a citizen, its silence is tantamount to approval.
In the end, we have a pile of exceptions that can be classified into four families, and it is up to the citizen to check whether his or her request falls under one of these exceptions…
THE PRINCIPLE: SILENCE OF THE PUBLIC AUTHORITY FOR MORE THAN TWO MONTHS FROM THE DATE OF A REQUEST IS DEEMED TO SIGNAL ACCEPTANCE (SILENCE MEANS APPROVAL)
The Silence Means Approval principle, which supersedes the former rule whereby silence by the authority over two months meant that the request was rejected, is now set down in Article L231-1 of the Code of relations between users and the administration.
This new rule applies, as from 12 November 2014, to requests sent to the State authorities and public institutions, and from 12 November 2015 to requests sent to regional and local government authorities, social security organisations, and public service organisations.
The new mechanism ensures that the authorities actually review the requests they receive and obliges them to expedite the process. This system has the advantage of obliging the authorities to answer requests at all time, as their failure to do so would indicate approval. The Silence Means Approval principle, a flagship measure for the “simplification shock” decided by the public authorities, created a genuine “right to a decision” in the citizens’ favour.
The much-criticised slowness of the authorities was thwarted. Now, any delay on the part of the authorities no longer prejudiced the requesters.
THE EXCEPTIONS TO THE PRINCIPLE MAKE THE REFORM UNCLEAR
Things are however not that simple as there are several exceptions that jeopardise the scope of this newly-established rule.
To begin with, Article L231-4 of the Code of relations between users and the administration states five exceptions, notably in the case of a request that does not call for an individual decision, that is of a financial nature, or that implies public policy.
Also, about sixty decrees, the latest being on 19 May 2016, set out multiple exemptions to the principle, making the reform all the more illegible and jeopardising legal certainty.
At present, the citizens can find themselves in four different scenarios, namely:
• Silence by the authority means approval at the end of two months;
• Silence by the authority means approval with another deadline;
• Silence by the authority means refusal at the end of two months;
• Silence by the authority means refusal with another deadline.
The differences in the time taken to investigate may be justified by the urgency, complexity or the very nature of the request. In certain cases however, this disparity is completely unfathomable…
For example, silence by the authority would mean approval with a deadline other than two months in the case of entry in the list of court administrators (12 months), work authorisation for a high-rise building (4 months), change of ownership of a drawing or model (6 months), approval of termination by mutual consent (15 days) or the statement of abandonment of brand (18 months).
In other cases, silence by the authority over two months means refusal of the request as in: access to named information on persons registered with the RCS trade and companies registry, seafront concession, registration in the list of job-seekers, authorisation to occupy or use the public sea or waterway area on a temporary basis, extension of the temporary exception to the non-working Sunday, or authorisation for eel fishing!
Lastly, silence by the authority over a period other than two months may be tantamount to the refusal of the request, notably in the case of: re-enrolment in the list of court administrators after withdrawal (8 months), requests of revocation of the loss of rights relating to a patent, registration requests and statements on the renewal of a brand and on the registration of a model or drawing (6 months), decisions to build on or demolish a registered site (1 year) or the marketing authorisation for GMOs (345 days!)
COMPLEX FOR BOTH CITIZENS AND AUTHORITIES
To conclude, this reform that is commendable in principle is actually exceedingly complex for the authorities and the citizens alike.
Going beyond the practical difficulties regarding the clarity of the general rule, several disputes are likely to crop up due to the risk of an increasing number of illicit decisions taken involuntarily by the authorities.
Before putting a request to the authorities, the company must identify which category it falls under and search for the answer among the thousand possible situations. The company may refer to the ” Legifrance” (1) and “Service-public” (2) sites that have published (in French) summary tables and that include a search engine in an attempt to summarise the cases where the “Silence Means Approval” rule applies to situations in which the former principle continues to endure.
The different deadlines for the investigation phase are also given.