DECISION
In the litigation
xxx,
plaintiff,
Legal representative:
Attorney Sven Adam
Lange Geismarstraße 55, 37073 Göttingen
against
Job center city of Kassel, represented by the managing director Christian Nübling
Lewinskistraße 4, 34127 Kassel
defendant,
The 4th chamber of the Kassel Social Court decided on January 5, 2021 through the chairwoman, judge at the Social Court xxx:
The defendant must reimburse the plaintiff for the necessary out-of-court costs.
REASONS
The parties involved are still arguing about whether the defendant has to reimburse the plaintiff for the out-of-court costs of an action for failure to act that has been settled in the main proceedings.
With the action for failure to act filed with the Kassel Social Court on December 28, 2019, the plaintiff requested the defendant's decision on his objection to the decision of April 30, 2019, which he filed on May 8, 2019.
By decision dated April 30, 2019, the plaintiff was granted benefits under SGB II for the period from October 1, 2018 to March 31, 2019. The plaintiff personally appealed against this in a letter dated May 8, 2019, because he had not received the child benefit credited to him. In a letter dated September 17, 2019, the authorized representative reported on the ongoing objection proceedings.
With an amendment notice dated February 6, 2020 and a remedial notice dated April 7, 2020, the defendant responded to the plaintiff's objection.
The plaintiff's representative then declared the legal dispute settled in the main matter on April 15, 2020 and requested that
the defendant be ordered to pay the out-of-court costs of the legal dispute.
The defendant does not comment on the payment of costs because the authorization of the authorized representative has not yet been proven and refers to Section 73 Paragraph 2 SGG.
The plaintiff's admissible request for costs is justified. It is reasonable that the defendant must bear the plaintiff's 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. This requirement is met in the present case because the plaintiff - after the defendant complied with the objection request - unilaterally declared the legal dispute to be settled in the main matter, which the court sees as a withdrawal within the meaning of Section 102 Paragraph 1 SGG and which means that the legal dispute has been settled is (Section 102 Paragraph 1 Sentence 2 SGG).
The court decides on the costs in this respect at its reasonable discretion, taking into account the current facts and status of the dispute. The decisive factor for the decision is in particular the prospects of success of the lawsuit, and the reasons for filing the lawsuit and its settlement must also be taken into account (cf. Leitherer in Meyer-Ladewig/Keller/Leitherer, SGG, 13th edition 2020, § 193 Rn 13 with further references) . The prospects of success of the action for failure to act are assessed in accordance with Section 88 Paragraphs 1 and 2 SGG. The court must then suspend the proceedings if there is “sufficient reason” for the fact that the requested administrative act was not approved within the statutory blocking period of six months; if there is no sufficient reason, the defendant would be sentenced to the decision; According to Section 88 Paragraph 2 SGG, the above applies if no decision has been made on an objection, with the proviso that a reasonable period of three months is considered.
First of all, it should be noted that the three-month blocking period had already been exceeded when the action for failure to act was filed and the action was therefore admissible. The Chamber is also convinced that there is no “sufficient reason” for the defendant to issue the objection notice late.
The action for failure to act brought by the plaintiff's representative is admissible. In particular, the court has no concerns that speak against proper authorization. According to Section 73 Paragraph 6 Sentence 5 SGG, the court must take the lack of power of attorney into account ex officio if a lawyer does not act as the authorized representative. This means that the court is generally not obliged to review the issue of power of attorney ex officio. The court may examine the power of attorney, but only if there are serious doubts that must be comprehensibly justified (cf. BSG, decision of March 17, 2016 - B 4 AS 684/15 B -). Such doubts were not apparent to the chamber and were not raised by the defendant. The mere general reference to “Section 73 Para. 2 SGG”, which contains extensive, detailed regulations on the power of representation by authorized representatives, which is cited by the – knowledgeable – defendant and which is neither factually nor legally substantiated, is clearly not sufficient for this.
The defendant only decided on the plaintiff's objection request after three months and had no “sufficient reason” for this.
It is not clear to the court why the objection could not be processed within the three-month period specified in Section 88 (2) SGG. The objection decision from the family fund, according to which the plaintiff was not entitled to child benefit during the disputed period, had been available to the defendant since mid-May 2019. The files do not reveal an objective reason why a remedial decision was only made in February 2020. The defendant also did not submit anything further in this regard.
Therefore, reimbursement of costs by the defendant appears to be appropriate based on its reasonable discretion.
Complaints against this decision are excluded (Section 172 Paragraph 3 No. 3 SGG).
