DECISION
In the litigation
xxx,
plaintiff,
Legal representative:
Attorney Sven Adam
Lange Geismarstraße 55, 37073 Göttingen
against
Jobcenter Werra-Meißner represented by the managing director at
Fuldaer Straße 6, 37269 Eschwege
defendant,
The 2nd Chamber of the Kassel Social Court decided on June 16, 2020 through the chairwoman, judge at the Social Court xxx:
The defendant must reimburse the plaintiff for the necessary out-of-court costs.
REASONS
The defendant must reimburse the plaintiff for the necessary out-of-court costs.
According to Section 193 Paragraph 1 Sentence 3 SGG, the court must, upon application, decide whether and to what extent the parties involved have to reimburse each other for costs if the legal proceedings end other than with a judgment. The social court must decide, taking into account the current status of the case and the dispute as well as the prospects of success, at its reasonable discretion whether the defendant has to bear the plaintiff's out-of-court costs. The status of the matter and the dispute at the time of the relevant event must be taken into account.
The Social Court Act does not automatically tie the cost decision to the outcome of the proceedings. Rather, the court must take into account all the circumstances of the individual case. In the case of other processing, the decisive factors for the decision are both the chances of success of the application and the idea of avoiding unnecessary processes (“initiator principle”). If there is uncertainty, division may be considered. This is also the case if the legal dispute raises difficult legal questions that make the outcome of the proceedings appear open. The reasons for filing the lawsuit and its settlement must also be examined.
In the event of a withdrawal, the decision on costs may also depend on whether the plaintiff voluntarily decided not to continue the legal dispute, which suggests that the plaintiff should bear the costs. Just as under Section 91a ZPO, once the main matter has been settled, the court is no longer allowed to clarify the matter until it is ready to make a decision on the main matter, i.e. no longer carry out any investigations. New allegations that are undisputed and do not require further investigation must be taken into account.
If the service provider does not adequately fulfill his official obligation to investigate in the course of the administrative procedure and in the legal proceedings, facts are established based on the court's investigations which, if they had already been properly checked by the service provider and could have been checked by the service provider, would result in something other than the contested decision, the service provider must be ordered to bear the costs of the legal dispute based on the incentive principle, regardless of the extent to which the beneficiary wins. The same applies in the opposite case if the beneficiary has not sufficiently fulfilled his obligation to cooperate in the administrative procedure (Hess. LSG, decision of February 7, 2003, Ref.: L 12 B 93/02 RJ with further references from case law).
What is also important for the decision on costs is whether the factual and legal situation changes after the decision has been issued or after the lawsuit has been filed and if the party concerned takes this into account immediately, he or she may not have to bear any costs.
When settling an action for failure to act (Section 88 SGG), if the action is brought after the expiry of the blocking period, the defendant usually has to reimburse the plaintiff's out-of-court costs because the plaintiff could expect a decision before the deadline expired. However, reimbursement of costs by the defendant cannot be considered if the defendant had a sufficient reason for the inaction and communicated this reason to the plaintiff or it was known to him (B. Schmidt in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 12th edition 2017, § 193 Rn. 13c).
If a decision is issued after the expiry of the blocking period, the action for failure to act becomes admissible due to the expiry of the blocking period (B. Schmidt in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 12th edition 2017, § 88 Rn. 10a). The reimbursement of costs according to Section 193 SGG also depends - as explained above - on the chances of success of the application and the idea of avoiding unnecessary processes (“initiator principle”). As a rule, costs will be reimbursed if a decision was only issued after the blocking period has expired. The circumstances of the individual case must be taken into account (Hess. LSG, decision of December 27, 2005, Ref.: L 9 B 176/05 SO). Within the framework of the general circumstances to be taken into account in an action for failure to act, the interests of those seeking legal action in the issuance of the administrative act or objection decision that was not issued within the deadline, the obtaining of legal certainty and in particular the subject matter of the dispute in the matter itself, such as: B. the expectation of higher or the cancellation of reduced benefits as well as special temporal and actual circumstances. There is no obligation to inquire about the status of the facts or the procedural status before filing an action for failure to act (LSG NRW decision of February 7, 2013, Ref.: L 9 AL 367/12 B; LSG Baden-Württemberg, decision of September 14, 2005, Ref.: L 10 LW 4563/04 AK-B; Hess. LSG, decision of February 15, 2008, Ref.: L 7 B 184/07 AS). Neither can a corresponding obligation be inferred from the wording, nor is this necessary taking into account the distribution of interests specified in Section 88. After the waiting period has expired, the applicant/objector's interest in a timely decision outweighs this and justifies - without any further requirements - asserting the claim to the decision in court. The burden of presenting and proving that there are reasons for exceeding the standard processing time now lies with the authority - regardless of a request from the person concerned (see BeckOGK/Jaritz, as of September 1, 2019, SGG § 88 Rn. 44). In cases in which there are no special circumstances that suggest that the plaintiff will have to investigate for a longer period of time by the authorities or otherwise delay processing, there is no reason to require the plaintiff to contact the authorities beyond the legal requirements of Section 88 SGG to inquire about the status of the proceedings (Baden-Württemberg State Social Court, decision of September 14, 2005 - L 10 LW 4563/04 AK-B - juris Rn. 32 f.).
In this case, on February 3, 2019, the plaintiff submitted a review request regarding several sanction notices. On August 12, 2019, the plaintiff filed an action for failure to act, which he declared settled on September 13, 2019, after the notices were issued. A decision on costs by the defendant is appropriate. When standardizing Section 88 SGG, the legislature did not provide for any further requirements - such as a prior inquiry to the authority before filing an action for failure to act. Only if special circumstances arise in the individual case can the authority not bear the costs or only part of them can be considered. For example, if an action for failure to act is filed very late, e.g. B. if it was only raised years later, the court must examine whether forfeiture has occurred from the perspective of abuse of rights. Abuse of law occurs if the lawsuit could have been brought earlier and the plaintiff has created a trust in the authority through his behavior (LSG North Rhine-Westphalia, decision of May 9, 2011 - L 7 AS 218/11 B). Even a timely lawsuit after the expiry of the deadline set out in Section 88 Paragraph 1 SGG does not necessarily lead to costs being borne if there are indications that the authority is not inactive or the person concerned is aware of circumstances that make it necessary to ask the authority or circumstances , which suggest that a decision by the authority will be made promptly - despite the expiry of the deadline under Section 88 SGG. The silence of the person concerned after the application or objection has been made is fundamentally not contradictory or unfaithful, but rather consistent. There is basically no legal obligation and no obligation for the citizen to remind the authority at regular intervals of an outstanding decision or to declare that there is still interest in a decision (BeckOGK/Jaritz, September 1, 2019, SGG § 88 Rn. 40). There are no apparent special circumstances that would have required the plaintiff to inquire. The plaintiff also did not have to expect further timely investigations or a decision being issued by the authorities. The cases decided by the 1st and 7th chambers of the Kassel Social Court are not fully comparable with the facts at hand, since one decision dealt with the “overlapping” of the announcement of the administrative act and the filing of a lawsuit, and the other decision involved investigations by the authority carried out, which obviously did not represent any inaction on the part of the authorities for those affected. As part of the overall consideration, the defendant must reimburse the plaintiff for the necessary out-of-court costs.
Complaints against this decision are excluded (Section 172 Paragraph 3 No. 3 SGG).
