Decision
In the legal dispute
1. xxx
2. xxx
Plaintiff,
Legal representative:
for 1-2: Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
defendant,
The Social Court of Hildesheim – 37th Chamber –
on January 25, 2011
:
The defendant shall bear the plaintiff's necessary extrajudicial costs.
Reasons:
After the main legal dispute has been settled, the only remaining point of contention between the parties is the question of who bears the costs.
Pursuant to Section 193 Paragraph 1 of the Social Courts Act (SGG), the court must decide by order, upon application, whether and to what extent the parties must reimburse each other's costs if the proceedings – as in this case – are terminated other than by judgment.
This decision regarding costs is at the court's discretion, taking into account the current state of the case and the legal arguments, with particular emphasis on the prospects of success (Leitherer in: Meyer-Ladewig/Keller/Leitherer, Commentary on the Social Court Procedure Act, § 193, para. 13 with further references). Other criteria for the cost decision include, above all, the outcome of the proceedings, the circumstances that led to the filing of the lawsuit, and the circumstances that led to the settlement of the dispute (cf. Niesel, The Social Court Procedure, 4th edition, paras. 610, 613 with further references).
The exercise of the court's discretion leads to the conclusion that the defendant must bear the plaintiffs' necessary extrajudicial costs. The plaintiffs filed an action for failure to act pursuant to Section 88 of the Social Court Act (SGG) on July 27, 2010. If an application for an administrative act has not been decided on its merits within a reasonable period without sufficient cause, the action is not admissible before the expiration of six months from the date of the application. If there is sufficient cause for the requested administrative act not yet being issued, the court suspends the proceedings until the expiration of a period it sets, which may be extended. If the application is granted within this period, the main issue is to be declared settled, Section 88 Paragraph 1 SGG.
The plaintiffs filed an application on January 21, 2010, pursuant to Section 44 of the German Social Code, Book X (SGB X), for a review of the decision issued on September 1, 2008. No decision was reached on this application within six months. By decision dated October 6, 2010 (pp. 20 et seq. of the court file), the defendant then decided on the plaintiffs' application. Thereupon, by letter dated October 7, 2010, the plaintiffs declared the proceedings concluded and requested that the defendant bear the costs.
In response to the court's request to comment on the plaintiffs' application for costs, the defendant, in a written submission dated November 18, 2010, refused to bear the costs and stated that it was an abuse of process to file the action for failure to act six days after the deadline stipulated in Section 88 of the Social Court Act (SGG). The administrative files had been unavailable to the caseworker for several weeks due to the processing of file inspections and expedited proceedings. Furthermore, a large number of applications and appeals from the plaintiffs had to be processed. Creating duplicate files was also not a solution, as it would be difficult to maintain an overview of individual procedural matters and later to meaningfully reconstruct all parts of the file. Section 88 of the SGG has a "summons character"; fee-related motives appeared to be the real reason behind many actions for failure to act.
The court cannot accept these arguments. They find no support in either Section 88 of the Social Court Act (SGG) or in the relevant commentaries (see Leitherer in: Meyer-Ladewig/Keller/Leitherer, Commentary on the SGG, 9th ed., Section 88, para. 7a et seq.; Binder in: Lüdtke, Social Court Act, 3rd ed., Section 88, para. 12 et seq.). In the court's opinion, there was no sufficient reason why the application was not decided upon within the statutory time limit. While "sufficient reasons" within the meaning of Section 88 of the SGG can also be administrative/organizational (e.g., the switch to new software; the relocation of the administration; new responsibilities; or a change in the law resulting in substantial additional work), such reasons can only be recognized as temporary at best (see also Wolff-Dellen in: Breitkreuz/Fichte, Commentary on the SGG, Section 88, para. 11). The practical problems described by the defendant in processing the plaintiffs' SGB II case do not, however, meet these requirements. Rather, the existence of several parallel applications and appeals, as well as simultaneous preliminary injunction proceedings, falls within the realm of the "normal" nature of SGB II "mass administration." The defendant will have to organize its administrative processes in such a way that it is able to comply with the deadlines stipulated in Section 88 of the Social Court Act (SGG) when processing cases. Insofar as the defendant refers to the planned legislative amendments regarding complaints of excessively long court proceedings, it is correct that the courts could also be confronted with comparable problems/phenomena in the future. However, in light of the requirement of effective legal protection under Article 19 Paragraph 4 of the Basic Law (GG), which is expressed in Section 88 of the SGG, this circumstance alone cannot lead to the conclusion that the defendant has "sufficient grounds" for the delayed decision.
In light of all this, the court considers it appropriate, for the aforementioned reasons, to order the defendant to bear the plaintiffs' necessary extrajudicial costs (see Leitherer, loc. cit., § 193, para. 14).
The appeal against the decision on the basic decision on costs is excluded pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG).
