WHEN PUBLIC AUTHORITIES DO NOT DECIDE: ON THE NEED FOR A FAILURE TO ACT PROCEDURE IN SWEDISH ADMINISTRATIVE LAW

Abstract

Delays in administrative decision-making remain a persistent structural weakness in Swedish administrative law. Although the Administrative Procedure Act (Förvaltningslagen) (FL) introduced the general delay action procedure (dröjsmålstalan) in Article 12 FL as a mechanism to challenge administrative inaction of public authorities in Sweden in an ongoing case, this article demonstrates that the procedure does not function as a genuine remedy. It enables persons to request a decision after six months, and may lead to a judicial decision of an administra- tive court under Article 49 FL directing a public authority to decide a case. Yet if a public authority remains passive thereafter, the legal system offers no further recourse. The absence of enforceable consequences for non-compliance with judicial decisions of public authorities in Sweden creates a remedial gap that places the burden of delay entirely on indi- vidual persons, while leaving public authorities shielded from account- ability. Through analysis of constitutional principles, statutory duties, sector-specific mechanisms, practice of the Parliamentary Ombudsmen, and the limits of existing mechanisms and remedies, the article shows that administrative law in Sweden provides oversight without enforcement and judicial review without effect. It therefore argues that the general delay action procedure must be supplemented by a new failure to act procedure (underlåtenhetstalan), thereby enabling administrative courts to enforce their own judicial decisions, impose binding deadlines on public authori- ties to act, and, where necessary, award financial compensation to persons. Such a reform, through the introduction of a new failure to act procedure, would restore effectiveness, legal certainty, and the rule of law in admin- istrative decision-making in Sweden.