DECISION
In the legal dispute
xxx,
Plaintiff,
Legal representative: Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Gießen Regional Council,
Department VII / Division 73,
represented by the Regional President,
Lilienthalstraße 2, 35394 Gießen,
Defendant,
The 30th Chamber of the Social Court of Frankfurt am Main decided on March 13, 2023, through its presiding judge, Judge xxx:
The defendant must reimburse the plaintiff for the 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 are terminated other than by judgment. In the present case, the proceedings were terminated by the plaintiff's accepted admission of liability on January 26, 2023, and a corresponding application for costs was filed.
The decision on costs is made at the court's discretion, taking into account the current state of the case and the legal arguments (legal principle of Section 91a of the German Code of Civil Procedure (ZPO) and Section 161 Paragraph 2 of the German Administrative Court Procedure Act (VwGO)). For the decision, which is to be made at the court's discretion based on a summary review of the facts and legal arguments at the time of the case's conclusion pursuant to Section 193 Paragraph 1 of the German Social Court Procedure Act (SGG), the likely outcome of the proceedings is of primary importance (Federal Social Court (BSG) decision of January 9, 1997 – 4 RA 116/95, BeckRS 1997, 30766267, beck-online). In principle, the costs of the proceedings are to be borne by the losing party.
However, the prospects of success and the actual outcome of the proceedings are not the sole criteria for the decision on costs. Rather, the court must, in addition to the outcome of the litigation, reasonably consider all circumstances of the individual case. One possible aspect in this regard is the so-called causation principle. The basis for applying the so-called "causation principle" as a discretionary consideration is the idea that the costs of the court proceedings should be imposed on the party who gave rise to the litigation (see HLSG, Decision of January 30, 1996, Case No. L 4 B 24/95, juris para. 8; Decision of May 13, 1996, Case No. L 5 B 64/94, juris para. 23; Leitherer in: Meyer-Ladewig/Keller/Leitherer, SGG, 13th edition 2020, § 193, para. 12b). It is therefore necessary to examine whether the proceedings were avoidable or unnecessary from the outset and, if so, who is responsible. In this respect, it is particularly important whether, during the course of the administrative proceedings, the benefit provider sufficiently fulfilled its duty to investigate ex officio and the benefit recipient fulfilled their duty to cooperate. If, upon the undisputed conclusion of the legal dispute, it remains unclear whether the benefit provider gave cause for the litigation, but the benefit recipient ultimately prevails with their original claim, albeit to a lesser extent, it is generally equitable, in consideration of the principles of success and causation, to apportion costs (see, in particular, HLSG, Decision of February 7, 2003, Case No. L 12 B 93/02 RJ, juris para. 18; Leitherer in: ibid., § 193 para. 12 et seq.).
Taking these principles into account, the court, exercising its discretion, considers it appropriate for the defendant to bear the costs.
The subject of the lawsuit filed on July 19, 2022, was the plaintiff's claim for benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1.
The defendant addressed this point of contention by acknowledging the claim on January 11, 2023. Even after a preliminary review of the legal situation, the lawsuit would likely have been successful in a contested decision.
In its decision of October 19, 2022, in the proceedings with file number 1 BvL 3/21, the Federal Constitutional Court (BVerfG) ruled that Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) as amended by Article 1 Number 3 of the Third Act Amending the Asylum Seekers' Benefits Act of August 13, 2019 (Federal Law Gazette I, page 1290) is incompatible with Article 1 Paragraph 1 of the Basic Law in conjunction with the social welfare principle of Article 20 Paragraph 1 of the Basic Law, insofar as a standard benefit for a single adult is recognized only at the level of standard benefit level 2 (Federal Constitutional Court decision of October 19, 2022 – 1 BvL 3/21, BeckRS 2022, 32661, beck-online). Until a new regulation comes into force, it has ordered that, for those entitled to benefits under Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), Section 28 of the German Social Code, Book XII (SGB XII) in conjunction with the Standard Needs Assessment Act and Sections 28a and 40 of the SGB XII shall apply accordingly, with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or in a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard need in the amount of the respective current standard need level 1 shall be used as the basis for calculating benefits for each single adult person (Federal Constitutional Court, loc. cit.).
Although the Federal Constitutional Court's decision regarding Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) still refers to its transitional provision on special needs level 2 for beneficiaries in collective accommodations pursuant to Section 3a AsylbLG, the Higher Social Court of Hesse (LSG Hessen) stated the following with regard to beneficiaries pursuant to Sections 3 and 3a AsylbLG in its decision of December 20, 2022 – L 4 AY 28/22 B ER/ L 4 AY 29/22 B ER:
"Insofar as the Federal Constitutional Court limited its order to those entitled to benefits under Section 2 Paragraph 1 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) and those entitled to benefits under Sections 3, 3a Paragraph 1 No. 2 Letter b) and Paragraph 2 No. 2 Letter b) of the AsylbLG are not covered by the order, the constitutional issues of the regulations in Section 3a of the AsylbLG are comparable, because there is also no sound evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits. [...] The Senate therefore assumes that the order of the Federal Constitutional Court must also be implemented accordingly in the area of application of basic benefits under Sections 3 and 3a of the AsylbLG."
The adjudicating chamber concurs with this view. In its decision of October 19, 2022, the Federal Constitutional Court stated that it cannot be assumed that single persons in communal accommodations, because they typically share expenses with other residents and thereby achieve savings relevant to their standard needs, actually have a lower standard of living than single persons in their own apartments (Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/21 –, para. 70, juris). There is no reliable evidence to support this, and the legislature cannot base its decision on the blanket assumption that communal accommodations are managed jointly, just as couples do, and therefore the standard of living is lower than that of standard benefit level 1 (Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/21 –, para. 70, juris).
The arguments put forward by the Federal Constitutional Court regarding Section 2 Paragraph 1 Sentence 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) can, in the Chamber's opinion, be readily transferred to Section 3a of the AsylbLG, since it cannot be assumed – without sound justification – that single persons in collective accommodations typically manage their finances together and therefore have low needs.
In this respect, the Chamber sees good reasons to believe that Section 3a Paragraph 1 No. 2b) of the Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 No. 2b) of the Asylum Seekers' Benefits Act (AsylbLG) could also be unconstitutional (see also Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of December 28, 2022), marginal note 44.18: "The decision of the Federal Constitutional Court of October 19, 2022 (- 1 BvL 3/21 -) undoubtedly also establishes the unconstitutionality of Section 3a Paragraph 1 No. 2b) of the Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 No. 2b) of the Asylum Seekers' Benefits Act (AsylbLG)") and that the applicant should be granted benefits at standard benefit level 1.
Therefore, the plaintiff would probably have been successful in a contested decision – possibly after a referral pursuant to Article 100 Paragraph 1 of the Basic Law.
There are no apparent grounds for imposing a portion of the costs on the plaintiff based on causation considerations.
The appeal against this decision is excluded § 172 para. 3 SGG.
