Question:

The agency issued a decision at the inferior level of deciding (e.g. revocation of a consent regarding an extension of trading hours), but the decision did not include, in its operative part, the clause on the stay of the execution of the decision by an appeal. The party filed an appeal over the decision but the administrative agency at the superior level of deciding did not make any decision. In the following seven days the party did not deposit a special application for the issue and service of the decision, therefore the matter was still unresolved. After four months the party deposited another application, requesting another extension of trading hours, however under the provisions of the sectoral legislation, a party whose permit has been revoked does not have the right to request a new one for at least one year. Considering the silence of the administrative agency at the superior level the legal effects of the decision by the administrative agency at the inferior level of deciding are unclear - may the party be issued a permit based on the new application or not? Can the administrative agency at the inferior level start the urgency over the silence of the administrative agency at the superior level, or is that the exclusive right of the party?

Answer:

A decision is a legal act of a body of public administration and has a direct legal effect on the rights and obligations of the party. A decision on an appeal must be, based on Article 256, paragraph 1, of GAPA issued and served to the party as soon as possible, at most within two months after the day the administrative agency received a complete appeal (only in the special case of an adjournment, especially under Article 153 of GAPA, does the time limit not count). This time limit is instructional, meaning it represents an instruction for the administrative agency to perform a specific procedural act within the defined time limit. The administrative agency does not lose its jurisdiction (justification and obligation) if that limit expires. On the contrary, it still may and must perform all obligated acts. The only exception to this is the silence of the administrative agency at the inferior level of deciding when it is precluded, if the party files an appeal according to Article 222, paragraph 4, of GAPA (see Jerovšek and Kovač, Upravni postopek in upravni spor, 2010, str. 129 - 130). Regarding the given matter we can conclude that the agency of appeal is apparently not operating within the time limits defined by GAPA.
An appeal due to the silence of the agency at the inferior level of deciding and the urgency or lawsuit in the administrative dispute over the silence of the administrative agency at the superior level of deciding may only be started by the party, and not, for example, by the agency at the inferior level of deciding. Therefore GAPA, and analogously Administrative Dispute Act (ADA), treats the silence of the administrative agency as part of the basic principle of protecting the rights of the party, specifically the right of the party to file an appeal or a lawsuit, as if the application or appeal had been rejected. As is defined in Article 28, paragraph 2, of ADA, the party may start an administrative dispute if the agency at the superior level does not, within the prescribed time limit, issue a decision regarding the appeal of the party at the inferior level and if it does not issue one within seven days after a new request has been deposited, as the silence of the administrative agency counts as a fiction of rejection. The plaintiff in the administrative dispute is, based on Article 17 of ADA, a person, who has been a party or an accessory participant in the procedure of the issue of an administrative act (and in connection with Article 17 of ADA also the representative of the public benefit, that is the administrative agency, for example the state attorney or a different person, see more in Androjna and Kerševan, Upravno procesno pravo, 2006, str. 683-684), but never the administrative agency (at the inferior level, etc.).
If the inferior agency issued a decision revoking the rights of the party, the party appealed and after the general provisions of GAPA (see Article 236, paragraph 1, of GAPA) the appeal stayed the execution of the decision, then the matter is not finalized until the appeal has been decided upon. Because GAPA (unless otherwise stipulated by sectoral regulation) in its Article 224 binds the executability of the decision to the completeness or finality of the decision, the decision at the inferior level of deciding, which has been challenged by an appeal and is being decided upon by the superior agency, is not (yet) in effect. It is therefore not possible to perform sanctions against the party, which the sectoral regulation specifies at the effective executability of the decision (the revoking of a right or inability of its exercise for a certain period). If such a consequence would be necessary to protect the public benefit then it should be so stated by the inferior agency in the disposition of the decision, defining that, following Article 236, paragraph 2, of GAPA, an appeal does not stay the execution of the decision. In the given example the general provisions are in use, therefore the decision comes into effect at the time of completeness or when the matter is finally resolved, even though the procedure at the superior level of deciding runs over the designated time limit of two months.
A possible new request, equal in its content to the previous one (if it applies to the same time period), which has already been decided on at the inferior level of deciding, and on which the procedure of appeal has not yet been concluded, needs to be rejected based on Article 129, paragraph 1, section 1, of GAPA, as the legal right has already been decided on, or the procedure is still in progress. The party would gain such justification only with the completeness or finality of the decision on revocation; if the sectoral regulation would not specify a different time limit for depositing a new request (i.e. a year after the permit has been revoked).

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