decision
In the litigation
1. xxx
2. xxx
plaintiff,
Legal representative:
for 1-2: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
xxx
defendant,
The Hildesheim Social Court - 23rd Chamber - decided on August 8, 2011 through the chairwoman, judge at the Social Court xxx:
The defendant must reimburse the plaintiffs for the necessary out-of-court costs.
reasons
Now that the main matter has been settled, the only issue that remains in dispute between those involved is the question of who will bear the costs.
In accordance with Section 193 Paragraph 1 of the Social Court Act (SGG), the court must, upon application, decide by order whether and to what extent the parties involved have to reimburse each other for costs if the proceedings - as here - are ended other than through a judgment. This basic cost decision is at the dutiful discretion of the court, taking into account the current state of affairs and the dispute, in particular the prospects of success (Leitherer, in Meyer-Ladewig/Keller/Leitherer, SGG, 9th ed., § 193, para. 13 with further references ). Further criteria for the cost decision are, above all, the outcome of the process, the circumstances that led to the filing of the lawsuit, and the circumstances that led to the settlement of the legal dispute (see Niesel, The Social Court Process, 4th ed., Rn. 610, 613 mwN).
The exercise of the discretion granted to the court results in the defendant having to reimburse the plaintiffs for their necessary extrajudicial costs.
The admissible action for failure to act in accordance with Section 88 SGG ended due to a declaration of settlement, received here on October 11, 2010, after the defendant issued the decision of October 6, 2010.
There is no sufficient reason within the meaning of Section 88 Paragraph 1 Sentence 1 SGG. This does not arise from the fact that the administrative processes were not available to the defendant due to the processing of file inspections and urgent proceedings. As far as can be seen, urgent proceedings by the plaintiffs regarding the case number S 55 AS 370/10 ER have been pending at the Hildesheim Social Court since March 2, 2010; By order of March 29, 2010, the administrative procedures were probably already sent back to the defendant. As can also be seen from a letter from the defendant to the city of Osterode am Harz dated April 7, 2010, the administrative procedures were available to the defendant again (BI. 270 administrative files). To the extent that the administrative procedures were then sent for legal proceedings and were therefore not available to the defendant, either copies of the file would have had to be made or the court would have - as is often practiced by authorities - for the purpose of processing further applications from the plaintiffs at short notice The administrative files can be requested to be returned. In any case, this cannot adequately justify the fact that the request for review dated January 21, 2010 was only decided on October 6, 2010. The fact that - as the defendant argues - it is not a solution to produce duplicate files that are several hundred pages long does not apply in this case in particular. Because when the administrative procedures were available to the defendant again in April 2010, it was already known that these plaintiffs still had several requests for review in accordance with Section 44 SGB X open. Regardless of the question of whether the defendant is required to produce duplicate files for each procedure, it would have been incumbent upon him in this procedure.
The fact that a large number of applications and objections from the plaintiffs had to be processed is also not a sufficient reason. This is not the case simply because on October 6, 2010 the defendant was obviously in a position to issue additional notices in addition to the one at issue here (parallel proceedings S 36 AS 1480/10 and S 37 AS 1481/10).
For these reasons, there is no abuse of law. The mere fact that an action for failure to act was filed immediately after the expiry of the deadline can hardly constitute an abuse of law based on the wording of the law. This would only come close if the defendant announced an imminent decision to the plaintiffs shortly before the lawsuit was filed and the plaintiffs did not wait for this, which - as far as can be seen - was not the case here.
This decision is incontestable in accordance with Section 172 Paragraph 3 No. 3 SGG.
