VERDICT
In the legal dispute
xxx,
Plaintiff,
Legal representative:
Attorney Sven Adam
, Lange-Geismar-Straße 55, 37073 Göttingen
against
City of Kassel,
represented by the Magistrate,
Legal Department,
Town Hall, 34117 Kassel,
Defendant,
The 11th Chamber of the Social Court of Kassel, in the oral proceedings of June 3, 2024, with the presiding judge, Judge xxx, and the lay judges Mr. xxx and Mrs. xxx, rendered the following judgment:
The defendant is ordered, with the annulment of the objection decision of 27 November 2023, to reimburse the plaintiff for the necessary expenses for the objection proceedings against the defendant's decision of 16 October 2023, confirming the necessity of engaging a lawyer.
The defendant shall bear the plaintiff's extrajudicial costs.
The appeal is not admitted.
FACTS
The plaintiff seeks reimbursement of the costs of preliminary proceedings conducted in accordance with the provisions of the Tenth Book of the Social Code (SGB X).
The plaintiff, born in Guinea in 199x, holds Guinean citizenship. He first entered the Federal Republic of Germany on January 10, 2019, and subsequently received benefits from the defendant under the Asylum Seekers' Benefits Act (AsylbLG). The plaintiff disputed the amount of benefits under the AsylbLG for the period from September 1, 2019, to October 3, 2019, before the Kassel Social Court (Case No. S 12 AY 95/21). In light of the jurisprudence of the Federal Constitutional Court (Case No. 1 BvL 3/21), the proceedings concluded with a procedural acknowledgment by the defendant on March 10, 2023: The defendant acknowledged the difference between standard benefit level 2 and level 1 for the period in dispute.
In response, the plaintiff's attorney, by letter dated March 14, 2023, requested interest from the defendant on the back payment for the period from September 1, 2019 to October 3, 2019. By letter dated October 16, 2023, the defendant responded to this request and stated verbatim:
“…we hereby refer to your letter of March 14, 2023. In it, you requested default interest for the period from September 1, 2019 to October 3, 2019.
With your statement of claim dated November 7, 2021, file number S 12 AY 95/21, you did not pursue or assert any claim for default interest in the ongoing legal proceedings. No default interest will be granted after the conclusion of the proceedings or outside of them.
Your application is rejected for the aforementioned reasons.”
The letter did not contain any information on legal remedies. Nor did it bear any designation such as "official notice" or similar.
The plaintiff, represented by his legal counsel, filed an objection to this letter on October 17, 2023. In support of his objection, he referred to the decision of the Federal Social Court of October 25, 2018, case number B 7 AY 2/18 R.
By letter dated November 15, 2023, the defendant, contrary to her initial statement of October 16, 2023, announced that she had now arranged for the payment of interest on the judgment for the period from September 1, 2019 to October 3, 2019 in the amount of €9.84.
In a letter dated November 16, 2023, the plaintiff's attorney then stated that the defendant's letter of November 15, 2023, constituted a complete remedy in the objection proceedings, but did not contain a decision on costs. He therefore requested that a decision on costs be made and that a ruling be issued on the necessity of his involvement.
By decision dated November 27, 2023, the Kassel Regional Council rejected the objection of October 17, 2023, against the defendant's letter of October 16, 2023, as inadmissible. It was also decided that expenses incurred by parties to the proceedings were not to be reimbursed. The reasoning given was that the letter lacked an administrative act, specifically the necessary element of a ruling, and therefore an objection was not permissible. The defendant had expressly not decided on the merits of the case and had correctly recognized the lack of the necessary authority to issue an administrative act. The decision regarding the ancillary procedural claim for statutory interest pursuant to Section 291 of the German Civil Code (BGB) must be made by the Social Court or should have been included in the acknowledgment in the underlying proceedings. Furthermore, the absence of information on legal remedies in the defendant's letter of October 16, 2023, indicated that the defendant did not intend to make a final decision. Furthermore, the request can, in principle, be pursued by means of a performance action.
On December 7, 2023, the plaintiff filed a lawsuit, arguing that the refusal to pay interest on the back payment constituted an unlawful and contestable administrative act, against which an objection had been lodged. This objection was therefore not inadmissible, and the subsequent payment of interest had remedied the situation. Consequently, the defendant was also liable for the necessary expenses.
The plaintiff requests
that the defendant, with the annulment of the objection decision of 27 November 2023, be ordered to reimburse the plaintiff for the necessary expenses for the objection proceedings against the defendant's decision of 16 October 2023, with a determination of the necessity of consulting a lawyer.
The defendant requests that
the action be dismissed.
In the legal proceedings, the defendant further argued that, according to the case law of the Federal Social Court of October 25, 2018, file number B 7 AY 2/18 R, the "independent legal basis" for statutory interest is solely the pendency of the claim, which is why no provision within the meaning of Section 31 Sentence 1 of the German Social Code, Book X (SGB X) was necessary. The mere claim for payment is subject to general contract law and was fulfilled by the defendant before the defendant was given notice of default.
For further details of the facts and legal arguments, reference is made to the contents of the court file and the defendant's administrative file.
REASONS FOR DECISION
Disputes concerning the costs of an objection procedure are governed by the jurisdiction of the courts in the matter itself. In matters concerning the Asylum Seekers' Benefits Act (AsylbLG), the social courts also have jurisdiction in this respect, § 51 para. 1 no. 6 SGG (Flint in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 51 SGG (as of 16.05.2024), Rn. 345).
The action is admissible and well-founded as a combined action for annulment and performance (§ 54 para. 4 in conjunction with § 130 para. 1 Social Courts Act, SGG).
The cost decision in the objection decision of 27 November 2023 is unlawful and violates the plaintiff's rights.
The legal basis for the reimbursement of costs in preliminary proceedings is Section 80 Paragraph 1 Sentence 1 of the Hessian Administrative Procedure Act (HVwVfG), because the Asylum Seekers' Benefits Act (AsylbLG) is not considered a special part of the German Social Code (SGB) (cf. Section 68 of Book One of the Social Code – SGB I). Consequently, the administrative procedure acts of the federal states apply to administrative proceedings under the AsylbLG, unless Section 9 Paragraph 3 of the AsylbLG expressly provides for the corresponding application of certain provisions of Book Ten of the Social Code (SGB X). However, Section 9 Paragraph 3 of the AsylbLG does not contain a reference to Section 63 of Book Ten of the Social Code (SGB X) (cf. Higher Social Court of North Rhine-Westphalia, Decision of April 1, 2014 – L 20 AY 70/13 B, juris, para. 20, with further references; Social Court of Kassel, Judgment of February 28, 2023 – S 12 AY 20/21 –, juris para. 23).
According to Section 80 Paragraph 1 Sentence 1 of the Administrative Procedure Act (HVwVfG), the legal entity whose authority issued the contested administrative act must reimburse the person who has filed an objection for the expenses necessary for the appropriate pursuit or defense of their legal rights, provided the objection is successful. The wording of this provision corresponds to Section 63 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X).
The parties already dispute whether the defendant issued an administrative act. An administrative act within the meaning of Section 35 Sentence 1 of the Hessian Administrative Procedure Act (HVwVfG) or Section 31 Sentence 1 of the Tenth Book of the Social Code (SGB X) is any order, decision, or other sovereign measure taken by an authority to regulate an individual case in the field of public law and which is directed at producing direct legal effects externally. The court is convinced that such an administrative act exists here in the form of the defendant's letter of October 16, 2023.
The interpretation of a letter as an administrative act is governed by the principles of interpretation applicable to declarations of intent (§§ 137, 157 German Civil Code – BGB). In applying these principles, the decisive factor is the objective meaning of the declaration, i.e., how the recipient, upon reasonable consideration of the circumstances of the individual case, had to objectively understand the declaration (Mutschler in: BeckOGK, 15.8.2023, SGB X, § 31, Rn. 32 with further references). According to these principles, the defendant's letter of 16 October 2023 constitutes an administrative act, as evidenced by its very clear wording, which includes a ruling/declaration that the plaintiff has no claim to statutory interest. The wording, stating that the "application is rejected for the aforementioned reasons," implies, according to general linguistic understanding, that the plaintiff has no claim to interest under any conceivable aspect and is quite typical as a formulation for an administrative act. Moreover, from the perspective of an objective recipient, the wording creates the impression of a final decision. This remains unchanged even though the plaintiff was represented by counsel. Even a fully qualified lawyer could understand the defendant's decision to mean that it was their final and declared intention not to pay any statutory interest, even though, according to established case law of the social courts (Federal Social Court, judgment of October 25, 2018 – B 7 AY 2/18 R –, SozR 4-1200 § 44 No. 8, SozR 4-7610 § 291 No. 5), the plaintiff was entitled to such interest. Last but not least, any remaining ambiguities are to the detriment of the defendant, since it alone is in the power to express the meaning of the declaration unambiguously (cf. Federal Administrative Court, judgment of November 5, 2009 – 4 C 3/09 –, BVerwGE 135, 209-218 = juris para. 21).
It is also irrelevant that the reasoning here was not preceded by a operative clause in the form of a decision formula; a operative clause can also be contained within the reasoning of the administrative act (Mutschler, loc. cit., para. 33). The fact that the defendant may have lacked awareness of the legal effect is also irrelevant to the question of whether an administrative act exists, the answer to which, as already explained, is determined by the objective perspective of the recipient. Nor can the lack of instructions on legal remedies be used to argue against the substantive legal character of the act as an administrative act, since the absence of an intention to issue a ruling on the part of the authority does not preclude its existence from the outset and, moreover, only extends the deadline for filing an objection from one month to one year.
The fact that the defendant lacked the authority to issue such an administrative act does not alter the existence of an administrative act. According to established case law of the Federal Social Court, the sole independent legal basis for the interest claimed in the plaintiff's application of March 14, 2023, is the pendency of a legal claim (see Federal Social Court, Judgment of October 25, 2018 – B 7 AY 2/18 R –, SozR 4-1200 § 44 No. 8, SozR 4-7610 § 291 No. 5 = juris para. 23). Accordingly, no implementing act by the authority in the form of an administrative act is required; rather, as the debtor, the authority is obligated to pay interest on the back payment ex officio. The defendant is therefore strongly advised to promptly pay interest on back payments ex officio in the future to avoid further administrative and legal proceedings, and to informally notify the recipient of the payment.
Against the background outlined above, the defendant must reimburse the plaintiff for the expenses necessary for the appropriate pursuit or defense of his legal rights. This includes the fees and expenses of the plaintiff's attorney authorized in the preliminary proceedings. A broad interpretation is required when assessing whether the involvement of legal counsel is necessary, because the legislature assumes that social law is a specialized area that poses difficulties not only for parties without legal expertise but also for trained lawyers (Feddern in: Schlegel/Voelzke, jurisPK-SGB X, 3rd ed., § 63 SGB X (as of April 23, 2024), para. 65). Accordingly, the involvement of legal counsel was also necessary in this case (§ 80 para. 1 sentence 1 HVwVfg). This is evident, not least, from the fact that the administrative act status of the defendant's letter of October 16, 2023, was not immediately apparent.
The decision on costs is based on § 193 SGG.
The appeal required leave to appeal from the Social Court because the value of the subject matter of the appeal did not exceed €750.00 (Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act [SGG]), it was not a reimbursement dispute pursuant to Section 144 Paragraph 1 Sentence 1 No. 2 SGG, and recurring or ongoing benefits for more than one year were not in dispute (Section 144 Paragraph 1 Sentence 2 SGG). However, there were no grounds for granting leave to appeal within the meaning of Section 144 Paragraph 2 SGG.
The following is information on legal remedies.
