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 decided on September 3, 2014, through Judge xxx as Chairwoman of the Social Court:
The defendant no. 1 and the defendant no. 2 shall each bear half of the plaintiff's necessary extrajudicial costs.
REASONS
I.
The point of contention is whether and, if so, to what extent the defendants are required to bear the plaintiff's extrajudicial costs.
The plaintiff's legal representative filed an objection on October 14, 2013, against the amount of benefits paid under the Asylum Seekers' Benefits Act (AsylbLG) for the period from September 2013 to October 2013. After the first defendant failed to make a decision on the objection, the plaintiff filed an action for failure to act with the Kassel Social Court on January 29, 2014, against both the first and second defendants (the appeals authority). The first defendant forwarded the objection to the second defendant for a decision on December 22, 2013. According to the second defendant, the documents were received on January 6, 2014. Following the second defendant's decision on the objection, issued on April 17, 2014, the action for failure to act was declared settled. At the same time, the plaintiff's attorney requested that the defendants each be ordered to bear 50% of the plaintiff's extrajudicial costs. Defendant 1 agreed to cover 50% of the plaintiff's extrajudicial costs, provided that Defendant 2 also agreed to share the costs equally. Defendant 2 did not agree to share the costs equally. While he was aware of the objection when the lawsuit was filed, the numerous objection proceedings and actions for failure to act brought by the plaintiff's attorney on behalf of various benefit recipients represented a considerable additional workload for Defendant 2's agency. He therefore considered the processing time to be sufficiently justified under Section 88 of the Social Court Act (SGG). The three-month processing period stipulated in the law, based on the submission of the objection to the appeals authority on January 6, 2014, and the decision on April 17, 2014, had only been exceeded insignificantly. Given the circumstances described, the decision regarding the objection was made within a reasonable timeframe. Therefore, the second defendant does not consider himself liable for the costs.
II.
The admissible application for costs is justified in the sense of an equal allocation of costs for both defendant 1) and defendant 2). Pursuant to Section 193 Paragraph 1 of the Social Court 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 following a decision on the objection) (Section 193 Paragraph 1 Sentence 3 SGG). The SGG does not contain an 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 the court's discretion, taking into account the previous state of the proceedings and the merits of the case. In the present case, the court is of the opinion that it is equitable to order each defendant to bear half of the plaintiff's extrajudicial costs. The plaintiff correctly filed his action for failure to act against both the issuing authority (Defendant 1) and the appeals authority (Defendant 2), because, according to Section 85 Paragraph 2 Sentence 1 No. 1 of the German Social Courts Act (SGG), the appeal under the Asylum Seekers' Benefits Act (AsylBLG) cannot be decided by the issuing authority, but only by the next higher authority, in this case, Defendant 2. The competent appeals authority, the second defendant, did not decide on the objection filed on October 14, 2013, until April 17, 2014, thus exceeding the three-month period stipulated in Section 88 Paragraph 2 of the Social Court Act (SGG). However, the first defendant had transferred the objection proceedings to the second defendant within the three-month period, namely on December 22, 2013, although the second defendant did not receive the transfer until January 6, 2014. Based on the second defendant's receipt of the objection proceedings on January 6, 2014, the second defendant then took longer than three months to process the objection, finally deciding on it on April 17, 2014. In total, more than six months elapsed between the filing of the objection and the decision on it. From the date the objection proceedings were received by defendant no. 2 on January 6, 2014, until the expiry of the three-month period on January 14, 2014, it would not have been possible for defendant no. 2 to make a proper decision. Considering the timeline, the court therefore deems it equitable to order each defendant to bear half of the plaintiff's extrajudicial costs.
According to § 172 para. 3 no. 3 SGG, this decision is not subject to appeal.
