DECISION
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Jobcenter Werra-Meißner, represented by the managing director,
Fuldaer Straße 6, 37269 Eschwege
Defendant,
The 2nd Chamber of the Social Court of Kassel decided on June 16, 2020, through the presiding judge, Judge xxx of the Social Court:
The defendant must reimburse the plaintiff for the necessary extrajudicial costs.
REASONS
The defendant must reimburse the plaintiff for the necessary extrajudicial costs.
Pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG), the court must, upon application, decide by order whether and to what extent the parties are to reimburse each other's costs if the court proceedings end other than by judgment. The Social Court must decide, taking into account the previous state of the facts and the legal arguments as well as the prospects of success, at its equitable discretion, whether the defendant is to bear the plaintiff's extrajudicial costs. The court must base its decision on the state of the facts and the legal arguments at the time of the event that rendered the case moot.
The Social Court Act does not automatically link the decision on costs to the outcome of the proceedings. Rather, the court must consider all circumstances of the individual case. In the event of a settlement, the decisive factors are both the prospects of success of the application and the principle of avoiding unnecessary litigation (the "polluter pays" principle). In cases of uncertainty, a division of costs is possible. This also applies if the legal dispute raises complex legal questions that make the outcome of the proceedings appear uncertain. Furthermore, the reasons for filing the lawsuit and for its settlement must be examined.
In the case of a withdrawal of the action, the decision regarding costs may also depend on whether the plaintiff voluntarily waived further litigation, which would support ordering the plaintiff to bear the costs. Just as under Section 91a of the German Code of Civil Procedure (ZPO), once the main issue has been resolved, the court may no longer investigate the matter to the point of being ready for a decision on the merits, i.e., it may not conduct any further inquiries. New submissions that are undisputed and do not require further investigation must be considered.
If the benefit provider fails to adequately fulfill its duty to investigate ex officio during the administrative proceedings, and facts are established in court proceedings based on the court's investigations which, had they already been properly examined by the benefit provider and could have been examined by the provider, would have led to a different decision than the one being challenged, the benefit provider must bear the costs of the litigation based on the principle of causation, regardless of the extent to which the benefit recipient prevails. The same applies conversely if the benefit recipient has not adequately fulfilled their duty to cooperate in the administrative proceedings (Hessian State Social Court, decision of February 7, 2003, file no.: L 12 B 93/02 RJ with further references to case law).
Furthermore, for the decision on costs, it is essential whether the factual and legal situation changes after the decision has been issued or after the action has been brought and the party concerned takes this into account immediately; if so, he may not have to bear any costs.
In the case of an action for failure to act (§ 88 SGG), if the action is filed after the expiry of the waiting period, the defendant is generally required to reimburse the plaintiff's extrajudicial costs, because the plaintiff could reasonably expect a decision before the deadline. However, reimbursement by the defendant is not possible if the defendant had a sufficient reason for inaction and communicated this reason to the plaintiff or was aware of it (B. Schmidt in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 12th edition 2017, § 193 para. 13c).
If a decision is issued after the waiting period has expired, an action for failure to act becomes admissible due to the expiration of the waiting period (B. Schmidt in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 12th edition 2017, § 88 para. 10a). As explained above, the reimbursement of costs under § 193 SGG also depends on the prospects of success of the application as well as the principle of avoiding unnecessary litigation ("polluter pays principle"). Costs are generally reimbursed if a decision is issued only after the waiting period has expired. The circumstances of the individual case must be taken into account (Hessian State Social Court, decision of December 27, 2005, file no.: L 9 B 176/05 SO). Within the framework of the general circumstances to be considered in an action for failure to act, the following must be taken into account: the interest of the party seeking legal redress in the issuance of the administrative act or decision on the objection that was not issued within the prescribed time limit, the attainment of legal certainty, and, in particular, the subject matter of the dispute itself, such as the expectation of higher benefits or the revocation of reduced benefits, as well as special temporal and factual circumstances. There is no obligation to inquire about the status of the facts or the proceedings before filing an action for failure to act (LSG NRW decision of February 7, 2013, file no.: L 9 AL 367/12 B; LSG Baden-Württemberg, decision of September 14, 2005, file no.: L 10 LW 4563/04 AK-B; Hess. LSG, decision of February 15, 2008, file no.: L 7 B 184/07 AS). Neither can such an obligation be inferred from the wording of the law, nor is it required in light of the distribution of interests stipulated by Section 88. After the waiting period has expired, the applicant's/objector's interest in a timely decision outweighs the other party's interest and justifies – without further requirements – the legal enforcement of the right to a decision. The burden of proof for the existence of reasons for exceeding the standard processing time now lies – regardless of any inquiry by the affected party – with the authority (see BeckOGK/Jaritz, as of September 1, 2019, SGG § 88 para. 44). In cases where there are no special circumstances that would suggest a longer investigation by the authority or any other delay in processing, there is no reason to require the plaintiff, beyond the statutory requirements of § 88 SGG, to inquire with the authority about the status of the proceedings (Baden-Württemberg State Social Court, decision of September 14, 2005 – L 10 LW 4563/04 AK-B – juris para. 32 f.).
In the present case, the plaintiff filed a request for review of several sanction notices on February 3, 2019. On August 12, 2019, the plaintiff filed an action for failure to act, which he declared settled on September 13, 2019, after the notices had been issued. A decision on costs by the defendant is appropriate. In drafting Section 88 of the Social Court Act (SGG), the legislator did not stipulate any further requirements – such as a prior inquiry with the authority before filing an action for failure to act. Only in the presence of special circumstances of the individual case can the authority be excluded from bearing costs or only partially considerable. If, for example, an action for failure to act is filed very late, e.g., years later, the court must examine whether the right to appeal has been forfeited under the aspect of abuse of rights. Abuse of rights exists if the lawsuit could have been filed earlier and the plaintiff, through their conduct towards the authority, created a legitimate expectation (North Rhine-Westphalia Higher Social Court, decision of May 9, 2011 – L 7 AS 218/11 B). Even a timely lawsuit after the expiry of the deadline under Section 88 Paragraph 1 of the Social Court Act (SGG) does not necessarily lead to the allocation of costs if there are indications that the authority is not inactive, or if the affected party is aware of circumstances that would necessitate an inquiry with the authority, or circumstances that suggest a decision by the authority will be issued promptly – despite the expiry of the deadline under Section 88 SGG. The affected party's silence after submitting an application or lodging an objection is generally not contradictory or contrary to good faith, but rather logical. There is generally no legal obligation or duty for a citizen to remind the authority at regular intervals of a pending decision or to declare that they continue to have an interest in a decision (BeckOGK/Jaritz, 1 September 2019, SGG § 88 para. 40). No special circumstances are apparent that would have required the plaintiff to make an inquiry. The plaintiff also had no reason to expect further timely investigations or the issuance of the decision by the authority. The case scenarios decided by the 1st and 7th Chambers of the Kassel Social Court are not entirely comparable to the present case, since in one decision the "overlap" of the notification of the administrative act and the filing of the lawsuit was at issue, and in the other decision, investigations were carried out by the authority that obviously did not constitute inaction on the part of the authority for the person concerned. In the overall assessment, the defendant must reimburse the plaintiff for the necessary extrajudicial costs.
The appeal against this decision is excluded (§ 172 para. 3 no. 3 SGG).
