DECISION
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
City of Kassel,
represented by the Magistrate,
Legal Department,
Town Hall, 34117 Kassel,
Defendant,
The 14th Chamber of the Social Court of Kassel decided on May 5, 2023, through its presiding judge, Judge xxx:
The defendant must reimburse the plaintiff for his costs.
REASONS
I.
The plaintiff originally received benefits according to the standard benefit level 1 for the period from 1 September 2019 to 3 October 2019.
The defendant granted the plaintiff, who lives in communal accommodation, benefits under the Asylum Seekers' Benefits Act (AsylbLG) at the level of standard benefit rate 2 (decision of September 18, 2019). The objection filed against this decision, seeking benefits at the level of standard benefit rate 1, was unsuccessful (objection decision of November 1, 2021).
The plaintiff filed suit on November 7, 2021.
He argued that the application of standard benefit level 2 to the plaintiff was unconstitutional.
The court granted legal aid and ordered the proceedings to be suspended, as an appeal and a referral under Article 100 of the Basic Law concerning the legal question at issue here were pending (decisions of 3 December 2021).
Following the decision of the Federal Constitutional Court under file number 1 BvL 3/21 of 19 October 2022, the defendant acknowledged the claim in the amount of the difference between standard benefit level 1 and standard benefit level 2 and declared its willingness to assume half of the extrajudicial costs (letter dated 10 March 2023).
The plaintiff accepted the acknowledgment to settle the legal dispute.
He now requests, in essence,
a ruling that the defendant must reimburse the plaintiff for his costs.
The defendant argues that full cost reimbursement is inappropriate. The defendant initially applied the law in force at the time. The unconstitutionality of the law cannot be attributed to it. In particular, it is not a "state" institution and could not have influenced the legislative process. Its procedural conduct should be taken into account in its favor, because, after the Federal Constitutional Court's decision, it voluntarily acknowledged the claim in full. Furthermore, the plaintiff received legal aid. It is equitable that the state bear at least a portion of the costs, because it was able to influence the law through the Federal Council.
II.
The decision on costs is based on Section 193 of the Social Court Act (SGG). The legal dispute of the plaintiff, who is privileged to bear costs, was resolved by the accepted admission of liability, unlike by a judgment, and the plaintiff has filed a motion for costs. The decision on costs is at the court's discretion and is primarily based on the prospects of success, unless considerations of causation or other reasons justify a different decision.
1. The claim was successful in its entirety. The defendant acknowledged benefits in the amount of standard benefit level 1 for the entire period in dispute.
2. Considerations of causation do not justify a different decision. The plaintiff regularly has no other option than to file an objection and an action to prevent the finality of the benefit decision (cf. regarding Section 63 of the German Social Code, Book X: Federal Social Court, judgment of September 24, 2020 – B 9 SB 4/19 R, SozR 4-1300 § 63 No. 31, paras. 23-25). The plaintiff cannot, in principle, be held responsible for initiating such a legal remedy. With regard to judicial review proceedings, those affected cannot be referred to a procedure to their benefit, because then benefits for past periods often cannot be obtained. The Federal Constitutional Court has also expressly ruled this way with regard to the provision at issue here (Federal Constitutional Court, judgment of October 19, 2022 – 1 BvL 3/21, Juris para. 98).
3. The fact that the defendant did not instigate the unconstitutional provision and thus this legal dispute is irrelevant. Considerations of causation only become relevant insofar as a cost decision that is otherwise based on success is to be (partially) reversed, i.e., if costs are to be imposed on the defendant in the case of an unsuccessful claim or on a plaintiff who is successful in the case (B. Schmidt in Meyer-Ladewig, 13th ed. 2020, SGG § 193 para. 12b).
4. There has been no change in circumstances in favor of the plaintiff. It is recognized that a cost allocation in favor of the defendant is possible if, for example, new health problems arise during the legal proceedings that now support the claim from the time of their occurrence, and an admission of liability is immediately made from the point in time of the change in circumstances (cf. B. Schmidt in Meyer-Ladewig, 13th ed. 2020, SGG § 193 para. 12d).
5. The change in the legal situation resulting from the decision of the Federal Constitutional Court (BVerfG) does not lead to a cost allocation, unlike in the decision of the Higher Social Court of Munich (LSG München) cited by the defendant (Bavarian LSG of October 27, 2017 – L 5 KR 4/16, Juris para. 5). In that case, the obligation to provide benefits was only recognized from the date of the change in the legal situation, namely the publication of the decision of the Federal Joint Committee (GB-A). Here, however, benefits were recognized retroactively for the entire period in dispute. Only in this specific scenario can an immediate recognition – as in the case of a change in circumstances (new health condition, etc.) – be considered in favor of the defendant authority.
6. In cases involving unconstitutional laws, a cost order must always be issued against the defendant authority. Insofar as the Federal Constitutional Court has considered cost allocations in favor of plaintiffs, this only applied to situations in which benefits could not be awarded retroactively in a constitutionally compliant amount, but the unconstitutionality of the regulations was nevertheless to be taken into account in favor of the affected parties (Federal Constitutional Court, judgment of February 9, 2010 – 1 BvL 1/09, BVerfGE 125, 175, Juris para. 219; Federal Constitutional Court, judgment of July 18, 2012 – 1 BvL 10/10, BVerfGE 132, 134, para. 113). However, if a plaintiff is successful for the entire period in dispute, the authority must all the more be obligated to bear the full amount of the costs according to this standard. It is irrelevant that the defendant is not responsible for the unconstitutional law, because the plaintiff is also not responsible for the law. Therefore, either side can make this argument, rendering it unproductive.
7. The defendant's arguments regarding legal aid do not alter the outcome. Granted legal aid is never an argument for a cost decision, whether by the court or by the parties in a settlement. This follows from Section 123 of the German Code of Civil Procedure (ZPO) in conjunction with Section 73a of the German Social Court Act (SGG). Rather, a cost decision based on the reasoning considered by the defendant would be abusive, and an appointed lawyer who, on this basis, agrees to an undisputed cost arrangement at the expense of the public treasury would be liable for reimbursement (cf. regarding claims for reimbursement: Higher Regional Court of Saxony-Anhalt, judgment of June 27, 2013 – 10 W 25/13 (KfB), Juris).
The appeal against this decision is excluded pursuant to Section 172 Paragraph 3 of the Social Courts Act (SGG).
