DECISION
In the legal dispute
xxx,
Plaintiff,
represented by: Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
1. xxx,
2. xxx,
Defendant,
The 11th Chamber of the Social Court of Kassel, through Judge xxx as Chairwoman, decided on September 3, 2014, without oral proceedings:
The defendant no. 1) must reimburse the plaintiff for the necessary extrajudicial costs.
REASONS
I.
After the action for failure to act has been settled, it is disputed who has to bear the plaintiff's extrajudicial costs.
The plaintiff's legal representative filed an objection with defendant 1) by letter dated August 22, 2013, against the amount of benefits granted under the Asylum Seekers' Benefits Act (AsylbLG) for the period from November 2012 to August 2013. After defendant 1) failed to rule on this objection, a lawsuit was filed on December 16, 2013, with the Kassel Social Court against the issuing authority (Werra-Meißner district, defendant 1) and the appeals authority (Kassel Regional Council, defendant 2). Defendant 1) transferred the objection proceedings to defendant 2) on December 22, 2013. According to the latter, the referral report was not received by defendant 2) until January 6, 2014. Defendant 2) ruled on the objection on July 17, 2014. Following the conclusion of the proceedings, defendant 1) agreed to cover half of the plaintiff's extrajudicial costs. The second defendant, citing the devolutive effect that only occurred after the lawsuit was filed, refused to assume any costs and furthermore considered the numerous objections and actions for failure to act filed by the plaintiff's attorney on behalf of other benefit recipients to be sufficient grounds for his decision on the objection, which was only issued on July 17, 2014. The plaintiff's attorney maintains that the defendants should bear half of the costs.
II.
The admissible application for costs is well-founded. However, the obligation to bear the costs lies solely with defendant no. 1. Pursuant to Section 193 Paragraph 1 of the Social Courts Act (SGG), the court must decide by judgment whether and to what extent the parties must reimburse each other's costs. The court must decide by order upon application if the proceedings are terminated otherwise (as in the present case by the declaration of settlement of the action for failure to act after the issuance of the decision on the objection) (Section 193 Sentence 3 SGG). The SGG contains no express provision regarding the conditions under which costs are to be reimbursed. Therefore, the legal principles of Sections 91 et seq. of the Code of Civil Procedure (ZPO) must be considered (see Meyer-Ladewig et al., SGG with commentary, 10th edition, Section 193, marginal note 13 et seq.). When a legal dispute is settled by a declaration of settlement, the court must apply the legal principle of Section 91a of the German Code of Civil Procedure (ZPO), according to which the question of costs must be decided at its equitable discretion, taking into account the previous state of the facts and the dispute.
In the present case, it is within the court's discretion to order the first defendant to bear the costs of the action for failure to act pursuant to Section 88 Paragraph 2 of the Social Court Act (SGG). This is because the first defendant failed to decide on the plaintiff's objection filed on August 22, 2013, within the three-month period stipulated in Section 88 Paragraph 2 of the SGG. The action is therefore correctly directed against the first defendant as the issuing authority and the second defendant as the competent appeals authority. However, only if the issuing authority fails to remedy the objection is it necessary to forward the objection to the appeals authority, in this case the second defendant. The corresponding devolutive effect pursuant to Section 85 Paragraph 2 Sentence 1 of the SGG had not yet occurred when the action was filed on December 16, 2013. The three-month period had, however, fully expired when the first defendant transferred the objection proceedings to the second defendant on December 22, 2013. The subsequent timeframe within which the appeals authority makes its decision is irrelevant with regard to the allocation of costs. The sole determining factor is that the first defendant neither granted the objection nor decided on the non-granting of relief within the three-month period and submitted the files to the competent appeals authority (the second defendant). At the time the action for failure to act was filed, the second defendant could therefore not issue the decision on the objection for both factual reasons – he was not yet aware of the objection proceedings – and legal reasons. In the present proceedings, therefore, a discretionary decision pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG) can only be made by ordering the first defendant to reimburse the plaintiff's extrajudicial costs in the proceedings before the Social Court. For he failed to process the plaintiff's objection without any apparent reason, nor did he submit it to the appeals authority. It is irrelevant in this case that, after the action for failure to act was filed, the first defendant, as the issuing authority, forwarded the files to the second defendant, as the competent appeals authority, for a decision on the objection, and that the second defendant only issued a decision on the objection four months after the action was filed, namely on July 17, 2014.
The decision is unappealable pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG).
