Represented by xxx
Plaintiff,
Lawyer Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
defendant,
The Social Court of Hildesheim – 54th Chamber – decided on February 9, 2011:
The defendant shall reimburse the plaintiff for half of her necessary extrajudicial costs.
Reasons:
Pursuant to Section 193 Paragraph 1 of the Social Courts Act (SGG), the Chamber must decide by resolution, upon application, whether and to what extent the parties must reimburse each other's costs if the proceedings are terminated differently than by judgment, as in this case by withdrawal of the action.
The decision on 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, SGG Commentary, 9th edition 2008, § 193 para. 13 with further references). Further 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 2005, paras. 610 and 613 with further references). In line with this, the Federal Constitutional Court (Second Chamber of the First Senate) stated the following in its decision not to accept the case on October 1, 2009 (Case No.: 1 BA 1969/09, NZS 2010, p. 384 ff. = juris, in particular para. 17):
“(aa) The decision to be made pursuant to Section 193 Paragraph 1 of the Social Court Act (SGG) as to whether and to what extent the parties must reimburse each other for extrajudicial costs lies within the court’s discretion, in the absence of specific regulations concerning the content of the decision to be made; the provisions of Sections 91 et seq. of the Code of Civil Procedure (ZPO) do not apply directly (see Federal Social Court (BSG), decision of May 24, 1991 – 7 RAr 2/91 –, juris, para. 3 et seq.; Leitherer, in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, Section 193 para. 12; Knittel, in: Hennig, SGG, Section 193 para. 22)<August 2009> ; Groß, in: Lüdtke, Handkommentar-SGG, 3rd ed. 2009, § 193 para. 20). The social courts often orient themselves towards the basic principles of §§ 91 ff. ZPO and §§ 154 ff. VwGO (cf. Knittel, in: Hennig, SGG, § 193 para. 23).<August 2009> ; Groß, in: Lüdtke, Handkommentar-SGG, 3rd ed. 2009, § 193 para. 20). There is broad agreement that, in the event of settlement of the legal dispute, e.g., by mutual agreement, as has occurred here, the decision on costs pursuant to § 193 para. 1 sentence 3 SGG must be made at the court's discretion, taking into account the previous state of the case and the legal arguments, in accordance with the legal principles of § 91a ZPO and § 161 para. 2 VwGO. The decisive factor should be primarily the presumed prospects of success of the action (cf. BSG, decision of May 16, 2007 – B 7b AS 40/06 R juris, para. 5; Leitherer, in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 193 para. 13 with further references; Groß, in: Lüdtke, Handkommentar-SGG, 3rd ed. 2009, § 193 para. 23 with further references). Furthermore, according to prevailing opinion, the court must also consider all other circumstances of the individual case and, in particular, examine the reasons for bringing the action and for its settlement (Leitherer, in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 193 para. 12b, 13 with further references; Groß, in: Lüdtke, Handkommentar-SGG, 3rd ed. 2009, § 193 para. 22; Straßfeld, in: Jansen, SGG, 3rd ed. 2009, § 193 para. 8; see also LSG Baden-Württemberg, decision of January 13, 1998 – L 13 Ar 3633/97 aK-B-, juris, para. 4: "also consider other circumstances relevant to a fair distribution of costs."). These other considerations are usually summarized under the terms "causation principle" or "causation principle" (see BSG, decision of 16 May 2007 – B 7b AS 40/06 R juris, para. 5; Leitherer, in: Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 193 para. 12b with further references; Groß, in: Lüdtke, Handkommentar-SGG, 3rd ed. 2009, § 193 para. 20, 22 f.; Straßfeld, in: Jansen, SGG, 3rd ed. 2009, § 193 para. 8). The authority may be obligated to cover the plaintiff's extrajudicial costs even if the action would have been without prospect of success, for example, because it gave rise to the action through an incorrect justification in the contested decision or through other incorrect handling of the case (see BSGE 88, 274 <288>; BSG, decision of May 16, 2007, B 7b AS 40/06 R, juris, para. 8). Conversely, the plaintiff may have to bear his own costs even if he prevailed or would have prevailed in the main proceedings (see BSG, decision of May 24, 1991 – 7 RAr 2/91 –, juris, para. 4). In this respect, it may also be decisive whether the plaintiff caused unnecessary costs (see Leitherer, Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed. 2008, § 193 para. 12b). It is also argued that, in individual cases, the defendant authority may be precluded from bearing the costs of a plaintiff who was otherwise successful, if it was possible and reasonable for the plaintiff to avoid court proceedings to enforce their claim (see Straßfeld, in: Jansen, SGG, 3rd ed. 2009, § 193 para. 9), in particular by refraining from filing an otherwise admissible legal remedy at an early stage (see, e.g., LSG North Rhine-Westphalia, decision of February 15, 2008 – L 19 B 98/07 AS –, juris, paras. 14, 16; decision of April 14, 2008 – L 7 B 311/07 AS –, juris, para. 10)
Taking these principles into account, the exercise of the discretion granted to the adjudicating chamber pursuant to Section 193 Paragraph 1 of the Social Court Act (SGG) leads in the present case to the result that the defendant must reimburse the minor plaintiff, to whom the chamber had already granted legal aid without payment of installments by decision of January 18, 2010, for half of her necessary extrajudicial costs. In this regard, the Chamber, based on the principle of success, takes into account, firstly, that the action, which sought a one-time grant of €70.84 for the purchase of school supplies for the 2008/2009 school year and was based on Section 73 of the German Social Code, Book XII (SGB XII) and on the unconstitutionality of the social assistance stipulated by law pursuant to Section 28 in conjunction with Section 20 of the German Social Code, Book II (SGB II), which did not adequately consider the needs of school-age recipients of assistance, would ultimately have been unsuccessful because the Federal Constitutional Court, in its decision of February 9, 2010 – 1 BvL 1/09 et al. – (BVerfGE 125, 175 et seq.), declared the provisions of the SGB II incompatible with the Basic Law, but continued to apply until the entry into force of a new regulation by the legislature, which was not to be retroactive and was to be enacted by December 31, 2010, and secondly, through the judgment of the Federal Social Court of On October 28, 2009 — B 14 AS 44/08 R — (SozR 4-4200 § 7 No. 15) during the course of the legal proceedings, the Federal Social Court (BSG) ruled that § 73 SGB XII is not a valid basis for granting further benefits to cover needs arising from school attendance for children of compulsory school age.
On the other hand, the court finds it unfair, based on the principle of causation, to impose the extrajudicial costs of the proceedings solely on the plaintiff. The plaintiff correctly points out that the Federal Constitutional Court, in its judgment of February 9, 2010 (loc. cit., para. 219), emphasized that the unconstitutionality of the provisions of the German Social Code, Book II (SGB II) and their successor regulations submitted to it must be appropriately considered in cost decisions in favor of the plaintiff, insofar as the statutory provisions—here, Section 193 Paragraph 1 of the German Social Courts Act (SGG)—allow for this. The extent to which the unconstitutionality of Sections 20 and 28 of the SGB II necessitates a specific percentage allocation of the extrajudicial costs of pending or formerly pending social court proceedings is not apparent from the Federal Constitutional Court's reasoning; the court also has discretion in this respect. Therefore, there is nothing to object to in principle when the 38th Chamber of the adjudicating court, in its decision of 14 April 2010 – S 38 AS 2113/09 – which was referenced by the defendant, declared only one quarter of the plaintiff's extrajudicial costs reimbursable, because it gave greater weight to the principle of success in exercising its discretion.
Nevertheless, the adjudicating chamber does not follow the apportionment made by the 38th Chamber and considers a more extensive—specifically, half—cost-bearing obligation on the part of the defendant to bear the costs to be objectively justified in the end. In doing so, the adjudicating chamber acknowledges, firstly, the fact that, for example, the 3rd Chamber of the 1st Senate of the Federal Constitutional Court, in exercising its discretion, granted the unsuccessful complainants in case 1 BvR 395/09, in its decision of March 24, 2010, pursuant to Section 34a Paragraph 3 of the Federal Constitutional Court Act, full reimbursement of their necessary expenses for the constitutional complaint proceedings in that case (cited according to juris, para. 8), even though it clarifies that, even if the complainants in that case had their constitutional complaint been successful, they would not have been able to claim higher basic income support benefits by having the challenged administrative decisions overturned (cited according to juris, para. 6 at the end). Furthermore, the administrative decisions issued by the defendant, which are challenged in the present legal proceedings and have now become legally binding due to the withdrawal of the action, and which he based primarily on the full coverage of needs through the payment of social assistance pursuant to Section 28 in conjunction with Section 20 of the German Social Code, Book II (SGB II), are tainted by the same stigma of incompatibility with the Basic Law as the statutory provisions themselves. The defendant cannot, therefore, completely evade his responsibility for the costs of the present legal dispute on the grounds that, as part of the executive branch, he had no influence on the content of Sections 20 and 28 of the SGB II and was obligated to enforce them. Based on this, the adjudicating chamber agrees in principle with the commentary by Leitherer (in Meyer-Ladewig/Keller/Leitherer, Commentary on the Social Court Act, 9th edition 2008, § 193 para. 13a with further references) cited by the plaintiff, according to which the person who invokes unconstitutional norms bears the costs of proceedings, without deriving from this, in cases of the Federal Constitutional Court merely declaring decisive statutory norms incompatible, combined with the mandate to the legislature to enact new regulations without retroactive effect, a claim for full reimbursement of costs by the citizen.
Therefore, in weighing the principles of success and causation, the Chamber's decision in the operative part of the judgment to divide the plaintiff's extrajudicial costs equally is justified in the present case.
This decision is final and cannot be appealed, § 172 para. 3 no. 3 SGG.
