Plaintiff,
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55, 37073 Göttingen,
Wiesbaden,
Wiesbadener Straße 70, 65197 Wiesbaden,
Defendant,
The Social Court of Hildesheim – 21st Chamber –
decided on January 26, 2011:
The defendant shall bear the plaintiff's necessary extrajudicial costs.
Reasons:
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 plaintiff filed an action for failure to act pursuant to Section 88 of the Social Court Act (SGG) on August 16, 2010. After the decision on the objection was issued on September 16, 2010, the plaintiff declared the legal dispute settled and requested that the defendant be ordered to pay the plaintiff's necessary extrajudicial costs. The defendant refuses to bear the costs, arguing that there was no failure to act.
If an application for an administrative act has not been decided on its merits within a reasonable period without sufficient cause, an action is not admissible before the expiry 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 shall stay the proceedings until the expiry of a period set by it, which may be extended. If the application is granted within this period, the main issue shall be declared settled. The same applies if no decision has been made on an objection, with the proviso that a period of three months shall be deemed reasonable (Section 88, paragraphs 1 and 2 of the Social Court Act).
The exercise of the discretion granted to the court leads to the result that the defendant must bear the plaintiff's necessary extrajudicial costs.
The plaintiff filed an objection to the decision of April 9, 2010, on May 7, 2010 (received by the defendant on May 11, 2010). There is no sufficient reason why the defendant failed to decide on this objection within three months. While the defendant did initiate further investigations immediately after the objection was filed by contacting [name of the BG Accident Clinic] and obtaining a supplementary expert opinion, this opinion was already available to the defendant on July 9, 2010. According to the administrative file, the defendant then undertook no further investigations. Instead, further processing of the matter only began after the plaintiff filed an action for failure to act on August 16, 2010. While it is true that in medically complex cases and when obtaining medical opinions, compliance with the deadlines stipulated in Section 88 of the Social Court Act (SGG) may be difficult, and that the need for further investigation may constitute a "sufficient reason" for not making a decision within the meaning of Section 88 SGG, such a case does not exist here. Rather, after July 9, 2010, the defendant apparently had no further need for investigation; a decision on the appeal could therefore have been made. The defendant also failed to inform the plaintiff that a decision on his appeal could not yet be made due to the holiday season. This, too, could potentially have been a sufficient reason within the meaning of Section 88 SGG and justified a short period of non-decision on the appeal. However, no such notification was given.
In light of all this, the court considers it appropriate, for the aforementioned reasons, to order the defendant to bear the plaintiff's 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).
