Our clients have often faced the question of whether to appeal unjustified inaction by an administrative body. Contrary to what one might expect, the answer is not always “yes,” even if we are convinced of the legitimacy of the claim. Below, we explain the reasons for this, along with the legislator’s proposed measures to protect citizens’ interests.
1. What We Are Appealing in Cases of Inaction by an Administrative Body
Let’s take a building permit as an example. When we apply for one, we are effectively requesting the issuance of an individual administrative act. Both the issued act and an explicit refusal to issue it are subject to appeal.
But what do we do if the administrative body remains silent and there is no act to appeal? In such cases, we appeal the so-called “implied refusal” of the authority. If our claim is justified, the court will oblige the authority to rule on the matter and issue the requested administrative act.
2. Problems with Appealing an Implied Refusal
However, appealing an implied refusal is not always a sufficient legal remedy—even when we believe the claim is well-founded.
One reason is the length of the court process. Even when the court acts quickly, there are cases—especially in the construction and investment sectors—where the applicant is bound by strict deadlines. For example, an investor may find themselves in a situation where the authority delays its decision for weeks or even months, while the investor is contractually obligated to deliver properties to dozens of buyers within a fixed timeframe. In this case, appealing the implied refusal may not achieve the desired outcome. Even if the court rules in the applicant’s favor, the investor may still be unable to meet the agreed deadlines.
Another issue is the potential recurrence of inaction. Even after being ordered by the court to act following a successful appeal of an implied refusal, the authority may still fail to respond. What recourse does the affected party have then? The only option is to appeal the second instance of inaction—again as an implied refusal. This creates a vicious cycle: while there are formal protections in place, there is no effective enforcement mechanism, since implementation depends on the very authority that is failing to act.
3. Proposed Changes
To address the above issues, one of the key changes proposed in the legislative amendment is the expansion of the scope of “implied consent.” Currently applicable only in explicitly defined legal cases, the proposal suggests that silent consent of an administrative body should also apply when an administrative body repeatedly fails to act—even after a court has annulled a previous implied refusal and ordered the administrative body to make a decision.
Additionally, the proposal includes increased penalties for officials who fail to issue the required administrative act. The current fine ranges from BGN 200 to 2,000. The proposed change would increase this to BGN 2,000–8,000 in cases of repeated inaction.
Another proposed amendment involves extending the appeal period for implied refusals:
- From 1 month to 2 months after the deadline by which the authority was supposed to act;
- From 2 months to 6 months if the affected parties were not notified about the initiation of the administrative process.
4. Risks of the Proposed Changes
During the legislative review process, the Ministry of Justice was asked to provide a statement. Their response includes several valid concerns and recommendations for refining the proposed bill.
An implied refusal can be overturned for various reasons. However, not every annulment means that the applicant has fulfilled all legal requirements or submitted the necessary documents. In other words, there may still be grounds for an explicit refusal of the act—even if these fall outside the scope of the court’s review when overturning an implied refusal. In such cases, equating inaction with implied consent would be dangerous. Extreme, yet realistic, examples include licensing of a nuclear power plant or a financial institution. Such scenarios must not be left to the “discretion” of silent consent.
The Ministry of Justice also raised another concern. The bill stipulates that applicants may seek compensation for damages only in cases where a document was requested. The rationale is that in such cases, implied consent does not apply. The bill assumes that in all other cases, implied consent offers adequate protection of citizens’ and organizations’ interests. However, the Ministry points out that this contradicts Article 7 of the Constitution of the Republic of Bulgaria, as it limits the state’s liability for damages. Harm can undoubtedly occur even under the implied consent rule, particularly since the appeal process itself takes time.
It appears the bill requires substantial revisions and rethinking before it can be adopted. Many of the proposed changes raise serious concerns, yet the draft has already passed its first reading. The team at Ilieva, Voutcheva & Co. Law Firm is closely monitoring these developments.
The news above is for information purposes only. It is not (binding) legal advice. For a thorough understanding of the subjects covered and prior acting on any issue discussed we kindly recommend Readers consult Ilieva, Voutcheva & Co. Law Firm attorneys at law.
