DECISION
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
1. Waldeck-Frankenberg district,
represented by the district council,
Südring 2, 34497 Korbach,
Defendant,
2. Gießen Regional Council,
Initial Reception Center, Department VII,
Lilienthalstraße 2, 35394 Gießen,
Defendant,
The 16th Chamber of the Marburg Social Court decided on September 26, 2023, through its presiding judge, Judge xxx:
The defendant no. 1) shall reimburse the plaintiff's necessary extrajudicial costs.
REASONS
I.
The parties are in dispute over the obligation to reimburse costs after the main issue has been resolved in proceedings for failure to act.
The defendant no. 1 granted the plaintiff benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the months of January to August 2020.
On August 3, 2021, the plaintiff, through his legal representative, submitted an application to defendant no. 1 for a review of the benefits for the period from January 1, 2020 to August 31, 2020.
On February 14, 2022, the plaintiff, through his legal representative, filed an action for failure to act because no decision had been made regarding the aforementioned objection.
The plaintiff's legal representative declared the main issue of the legal dispute settled by letter dated March 21, 2022, and requested that the defendant be ordered to pay the costs of the proceedings.
For further details, please refer to the contents of the court file.
II.
The 16th Chamber of the Marburg Social Court has jurisdiction in this matter because the 9th Chamber is no longer responsible for this area of law and all proceedings have been transferred to the 16th Chamber.
The defendant (1) must bear the plaintiff's necessary extrajudicial costs in the present legal dispute. In the Chamber's opinion, this is equitable.
Pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Courts Act (SGG), the court decides on the reimbursement of costs by order upon application if the proceedings are terminated other than by judgment. Here, the legal dispute has been settled by the declaration of the plaintiff's legal representative, which is to be interpreted as a withdrawal of the action.
The decision regarding the reimbursement of costs is made at the court's discretion (see Federal Social Court [BSG], SozR Nos. 3 and 4 to Section 193 of the Social Court Procedure Act [SGG]), whereby the court is not bound by the parties' motions and the legal principles of Sections 91 et seq. of the Code of Civil Procedure (ZPO) are applied. The court must therefore assess the outcome of the legal dispute as it stands at the time of its conclusion, taking into account the facts and legal arguments presented in the file, exercising its discretion. The decision is thus based on all circumstances of the individual case, considering the facts and legal arguments as presented in the file (see B. Schmidt in: Meyer-Ladewig et al., SGG, 14th ed. 2023, Section 193, marginal notes 12 et seq. with further references; Hessian State Social Court [Hess. LSG], decision of February 7, 2003, file no. L 12 B 93/02 RJ).
Two key assessment criteria are important here: the prospects of success of the lawsuit at the time of its settlement, and the reasons for filing the lawsuit and for its settlement. Therefore, in addition to considering the prospects of success, it is also necessary to consider who gave rise to the legal dispute. Consequently, it can be crucial for the cost decision to be made who bears the responsibility for the fact that a lawsuit, which was avoidable from the outset and therefore unnecessary, had to be brought before the court in the first place (cf. B. Schmidt, loc. cit.).
When applying these two criteria, it must be borne in mind that they are criteria for weighing various factors in a discretionary decision, and both criteria serve as corrections to each other. It may therefore be conceivable that, if the legal situation changes due to a change in the factual circumstances after the action has been filed, and the action now has prospects of success, the defendant should not be ordered to pay extrajudicial costs because the causation aspect outweighs the success aspect in the discretionary balancing of interests. This presupposes that the competent administrative body takes into account a factual or legal change immediately upon becoming aware of it (legal principle of Section 93 of the German Code of Civil Procedure; see, for example, Hessian State Social Court, Decision of May 13, 1996, Case No. L-5/B-64/94, NZS 1997, 48; B. Schmidt, loc. cit., para. 12c with further references).
Taking these principles into account, the defendant (1) must bear the plaintiff's necessary extrajudicial costs in the present legal dispute. In the Chamber's opinion, this is equitable.
The action for failure to act was successful for the plaintiff, as he fully achieved his objective – a decision on the review application.
However, the decisive factor for the allocation of costs in an action for failure to act is the causation aspect. This relates here to the question of whether the preliminary proceedings were culpably delayed. It must be examined whether the plaintiff could reasonably expect a decision before filing the action (legal principle of Section 161 Paragraph 3 of the Code of Administrative Court Procedure). This is the case if the requirements of Section 88 of the Social Court Procedure Act (SGG) were met at that time; that is, if the action was initially admissible and well-founded. For this to be the case, the plaintiff must have submitted an application for an administrative act or filed an objection that was not decided on its merits (B. Schmidt, loc. cit., Section 88, marginal notes 3 et seq.). Furthermore, the waiting period of Section 88 Paragraph 1 or Paragraph 2 of the SGG must generally have expired without result (B. Schmidt, loc. cit., Section 88, marginal notes 5 et seq.). Finally, there must be no sufficient reason why the decision or the decision on the objection has not yet been issued (B. Schmidt, aa O., § 88 Rn. 7a ff.).
These conditions are met in the present case.
On August 3, 2021, the plaintiff, through his legal representative, requested a review of the benefits from defendant no. 1. Until the time the lawsuit was filed on February 14, 2022 – i.e., after more than six months – no decision had been made regarding the objection.
No sufficient reason for the failure to issue a decision to the plaintiff within the statutory time limit is apparent or has been presented. The defendant has neither alleged any particular difficulty of the proceedings nor any particular burden or other reason that could justify the delayed decision in this specific case (regarding the various reasons, see B. Schmidt, loc. cit., § 88, para. 7a et seq.).
In the relationship between the two defendants, the responsibility lies with defendant 1), who is responsible for the prompt forwarding to defendant 2), and it has not been demonstrated in the present case that this actually happened.
A plaintiff's obligation to formally request action from the authority and threaten legal action for failure to act can only be recognized in exceptional cases. There is no general obligation to inquire with the authority, as this is not implied by either the wording or the purpose of Section 88 of the Social Court Act (SGG). Rather, the provision is solely contingent upon the expiration of the waiting period. Once this period has expired, legal action for failure to act can be brought. It is the authority's responsibility to ensure a decision is issued within the statutory time limit (see Federal Constitutional Court, Decision of February 8, 2023, Case No. 1 BvR 311/22, Juris para. 15 et seq.; Hessian State Social Court, Decision of February 15, 2008, Case No. L 7 B 184/07 AS, Juris para. 21).
The appeal against this cost decision is excluded, § 172 para. 3 SGG.
