DECISION
In the legal dispute
xxx,
Plaintiff
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55,
37073 Göttingen
against
City of Göttingen,
Defendant
The 43rd Chamber of the Social Court of Dortmund, without oral proceedings, decided on 16 September 2016 through the presiding judge, Judge xxx of the Social Court:
The defendant shall bear the plaintiff's extrajudicial costs.
REASONS
The defendant is ordered to bear the plaintiff's extrajudicial costs because this appears appropriate when considering the circumstances relevant to the cost decision.
If proceedings, as in this case, are concluded other than by judgment, the court decides on costs by order upon application (§ 193 para. 1 SGG). The decision on costs must be made at the court's discretion, taking into account the previous state of the case and the legal arguments. This involves examining both the prospects of success of the claim and the reasons for filing the action or application and its subsequent resolution. The decisive factor is whether the defendant gave cause for the action or, conversely, whether the claim pursued in the court proceedings initially did not exist and only arose as a result of a significant change in the factual or legal circumstances during the course of the proceedings (see generally: Leitherer in: Meyer-Ladewig/Keller/Leitherer, SGG, 11th edition 2014, § 193, marginal note 12 et seq.).
The defendant caused the filing of the action for failure to act. Pursuant to Section 88, paragraphs 1 and 2 of the Social Court Act (SGG), an action is not admissible before the expiration of three months if an objection has not been decided on its merits within a reasonable period without sufficient cause. The three-month period expired on June 2, 2015, following the filing of the objection on March 2, 2015.
The defendant had no sufficient reason for failing to issue a decision. The burden of proof for a sufficient reason for inaction lies with the defendant social security agency. Only objective obstacles are relevant (North Rhine-Westphalia State Social Court, decision of May 16, 2013, file no.: L 19 AS 535/13 B). Whether an objection procedure is mandatory or the objection is admissible is irrelevant. The plaintiff has a right to a decision (see Leitherer in: Meyer-Ladewig/Keller/Leitherer, SGG, 11th edition 2014, § 88, para. 3). The defendant did not issue an acknowledgment of receipt of the objection. Nor was it communicated that the objection was deemed inadmissible, although even then there is an obligation to issue a decision on the objection. The defendant is not legally permitted to simply remain inactive. Legal considerations regarding the success of the objection are generally irrelevant in an action for failure to act and must be considered in the main proceedings. There is no exception where the success of the objection is relevant. This is not a case of abusive litigation. The right to a fundamental decision exists, except in cases of abusive litigation where a substantive legal claim is clearly precluded from every conceivable perspective and the filing of the action for failure to act merely constitutes an exploitation of a formal legal position without personal benefit and to the detriment of the other party. In such cases, the right to a decision also lapses (see, for further references: Leitherer in: Meyer-Ladewig/Keller/Leitherer, SGG, 11th edition 2014, § 88, marginal note 4a and Heilbronn Social Court, judgment of August 5, 2014, case no. S 11 SO 2377/13). Such a case does not exist here. Taking into account the ruling of the Federal Social Court of September 11, 1980 (Case No.: 5 RJ 108/79), a claim is not excluded under every conceivable aspect. It is legally possible to attribute explanatory value to silence regarding the interest issue in a decision.
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