A notable problem in this regard is that decisions of administrative courts under Article 49 FL are not generally appealable. Thus, no administrative courts of appeal, nor the Supreme Administrative Court, are in a position to establish sufficient precedent on the case-law concerning the general delay action procedure. Though, see, HFD 2023 ref. 49. Förvaltningsrättslig tidskrift 2026, https://doi.org/10.53292/ba5659bf.7b2a7d93
Hänvisas från p. 7 (s. 423)
1.The general delay action procedure should be retained, and no carve-outs for particular public authorities or categories of decision should be introduced. It has an important function in establishing a procedural baseline, marking the point at which administrative inaction becomes formally challengeable, and in creating structured incentives for public authorities to address their processing times. The mere existence of the general delay action procedure has some deterrent value, even where, for now, there is no means of enforcement thereafter. This is because the general delay action procedure, despite its flaws, signals to public authorities that their delays are subject to some scrutiny. Thus, to remove it, or to limit its application, would diminish even that minimal signal. The argument advanced here is, therefore, not that Article 12 FL is superfluous, but that it is necessary but also insufficient, and that it must be complemented with a further procedure.s. 421
2.The case for supplementing the general delay action procedure with a failure to act procedure rests on a straightforward principle that obligations imposed by law, including decisions of administrative courts, given in fulfilment of those obligations, must carry legal consequences, if they are to have any meaning. A national legal system that creates duties, provides some means for their enforcement, but then permits such enforcement to be defied without consequence has, at that point, ceased to enforce the underlying obligation. The general delay action procedure as currently designed produces, at its maximum, a judicial order to decide. Where that order is complied with, the legal system functions as intended. Where it is not, the legal system offers nothing further. The failure to act procedure is the missing element that would close this gap, transforming a judicial order of an administrative court from a statement of expectation, into an instruction with enforceable consequences.s. 421
3.A failure to act procedure in administrative law in Sweden could operate in the following way. Upon a decision of an administrative court under Article 49 FL directing a public authority to decide a case, a defined period would begin to run. If the public authority fails to render a decision within that period, sixty days, which is a figure that strikes a reasonable balance between allowing adequate time for compliance and preventing indefinite further delay, a person would become entitled to bring a failure to act application directly before the administrative court. The sixty-day period would not be a further reprieve for the public authority, but would rather operate as a reasonable outer limit, set to accommodate legitimate administrative constraints, beyond which continued inaction becomes legally untenable. The period could be adjusted by the administrative court in its original Article 49 FL order in exceptional cases where the complexity of the decision warrants a longer period, provided that the administrative court states reasons for any extension.s. 421
4.Upon receiving a failure to act application, the administrative court would have a range of powers designed, proportionate to the gravity and persistence of the non-compliance. At minimum, the administrative courts would be empowered to impose a binding deadline for the decision to be made by the public authority, with a specific calendar date, rather than the open-ended direction to decide ‘as soon as possible’ (att snarast) that Article 49 FL currently provides. The indeterminacy of ‘as soon as possible’ is itself part of the problem, in that it allows public authorities to characterise continued inaction as a form of compliance, on the basis that they are, in their own assessment, working towards a decision. A binding deadline, in a failure to act procedure, removes that ambiguity.s. 422
5.Beyond the imposition of a deadline, administrative courts would have the power to award financial compensation to the person for demonstrable harm, economic and/or non-economic, caused by the failure of a public authority to decide a case following a court order. The financial compensation mechanism would serve two functions. It would, first, be a genuine remedy for the person, who may have suffered material harm as a result of the continued delay that cannot be undone by a decision arriving late. It would, second, be an incentive for public authorities to prioritise compliance, since noncompliance would carry a direct budgetary consequence, payable from the budget of the public authority responsible for the delay. The quantum of compensation would need to be attuned carefully, in that it should be sufficient to be meaningful, without creating a perverse incentive for persons to allow delays to continue in order to accumulate a larger award. A modest daily rate accruing from the expiry of the sixty-day period would be one approach. Alternatively, compensation could be assessed on the basis of demonstrable loss, with a procedural presumption of harm after a certain threshold of continued non-compliance by a public authority.s. 422
6.The relationship between financial compensation under a proposed failure to act procedure and existing avenues of damages under the Damages Act (Skadeståndslagen) would require clarification upon the introduction of a failure to act procedure. The existing routes are not, in practice, effective remedies for delay-induced harm. The threshold for establishing causation and fault under the Damages Act is high. A failure to act procedure’s compensation mechanism would operate as a more accessible and more targeted instrument, specifically designed for the situation where a public authority has defied an order of the administrative court, rather than requiring the person to establish the full conditions for liability. The two tracks could coe xist, with the failure to act procedure providing a lower-threshold route that operates automatically upon non-compliance, leaving the other existing route available for more serious cases involving demonstrable material loss.s. 423
7.The design of the failure to act procedure raises the question of which court of law should hear the application. The most coherent approach would be to vest jurisdiction in the same administrative court that issued the original Article 49 FL order, on the basis that it is already familiar with the case and the history of non-compliance. This would avoid the duplication and delay associated with commencing proceedings before a different court of law, and would allow the administrative court to develop expertise in assessing failure to act applications over time. The application process would be straightforward, a written application by the person, with a copy of the original Article 49 FL order and evidence that the specified period has elapsed without a decision, would be sufficient to establish the threshold for the administrative court to adjudicate. The public authority would be given a short period to respond, after which the administrative court would proceed to judgment.s. 423
8.It is important to address foreseeable objections to this proposal. The most significant is the concern about resource implications for public authorities. If public authorities are already not deciding cases within existing time-limits, the argument runs, imposing financial compensation to persons for noncompliance will not produce more decisions, but would simply add a further burden to public authorities. This objection has some practical force, but it ultimately mistakes the nature of the problem. The failure to act procedure is not designed to conjure administrative capacity out of thin air. It is designed to ensure that, where capacity exists, it is directed toward compliance with judicial decisions of administrative courts. The failure to act procedure would create an incentive to make a different choice.s. 423
9.A related objection is that empowering administrative courts to impose financial penalties on public authorities amounts to an undue interference by the administrative courts on public authorities. However, a failure to act procedure would not give courts the power to decide cases on their substance, to set administrative priorities, or to direct the internal organisation of public authorities. It would merely give the administrative courts the power to enforce their own judicial decisions, a power needed as part of their judicial function. The principle that judicial decisions of administrative courts must be enforceable is far from a novel one.s. 424
10.The introduction of a failure to act procedure in national law in Sweden need not be dramatic in scope. It would merely require an amendment to the current FL introducing a new provision, complementing the existing Article 12 FL and Article 49 FL, that provides for enforceable consequences when public authorities remain passive after an administrative court has directed them to act. The procedural architecture is, thus, already in place. A failure to act procedure, added into the FL by the Swedish legislature, would extend the status quo, and in doing so, would transform the general delay action procedure from a procedural aspiration into a genuine instrument of legal protection for persons in their dealings with public authorities who do not make decisions in a timely manner.s. 424