DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
Eichsfeld District,
represented by the District Administrator,
Friedensplatz 8, 37308 Heilbad Heiligenstadt
– Respondent –
The 15th Chamber of the Social Court of Nordhausen, through its presiding judge, Judge xxx, decided without oral proceedings on October 23, 2018:
The respondent shall bear the applicant's necessary extrajudicial costs.
REASONS
Pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG), the court decides by order, upon application, whether and to what extent the parties must reimburse each other's costs if the proceedings – as in this case – are concluded by order other than by judgment or, in the case of preliminary legal protection, by order. The court must decide this matter at its equitable discretion, taking into account all the circumstances of the individual case. Within the framework of this equitable decision, which must be made considering the previous state of the facts and the legal arguments, both the prospects of success of the legal protection claim and the reasons for filing the action or application must be taken into account (Thuringian Higher Social Court, Order of February 15, 2008 – L 9 B 133/07 AS with further references). Apart from the reference to Section 100 of the Code of Civil Procedure (ZPO) in Section 194 Sentence 1 of the Social Court Act (SGG), the provisions of the Code of Civil Procedure do not apply to the cost decision to be made. This is because the special cost regulation of the SGG, adapted to the peculiarities of social court proceedings, excludes a corresponding application of these provisions under § 202 SGG (BSG SozR 3-1500 § 193 No. 2 sentence 3).
However, in exercising discretion, the general principles of costs contained in Sections 91 et seq. of the Code of Civil Procedure may nevertheless be taken into account in order to provide a sufficiently reliable standard of review for the exercise of discretion. It generally follows that it is appropriate to base the decision on the actual (external) outcome of the proceedings, i.e., to impose the costs of the proceedings on the party who (materially) brought about the event rendering the case moot (acknowledgment of the asserted claim by the defendant, voluntary waiver of the legal proceedings by the plaintiff (cf. Zeihe, Sozialgerichtsgesetz [Social Courts Act], Commentary, § 193, marginal note 7a; Meyer-Ladewig, Sozialgerichtsgesetz [Social Courts Act], Commentary, 9th edition 2008, § 193, marginal notes 12 et seq.)). However, this generally does not apply if the defendant's conduct did not give rise to the proceedings and immediately acknowledged the asserted claim due to a subsequent change in the factual or legal situation (legal principles of §§ 93 of the Code of Civil Procedure [ZPO], 156 of the Code of Administrative Court Procedure [VwGO]), so that the obligation to bear the costs nevertheless remains with the applicant. Thus, if a change in the The factual and legal situation at the time of the resolution is essentially determined by how the case would likely have been decided without this change. It is also equitable to consider the prospects of success before the event rendering the case moot (Meyer-Ladewig, loc. cit., para. 12 a with further references).
According to these principles, the respondent must bear the applicant's necessary extrajudicial costs in full. The application would likely have been successful at the time of its resolution, which was brought about by the respondent through remedial action.
Legal remedies
The decision is unappealable pursuant to Section 172 Paragraph 3 of the Social Court Act (SGG).
