DECISION
In the administrative law case
of the minor xxx, represented by his parents Mr. xxx and Mrs. xxx, who live in Ukraine , xxx,
Plaintiff and respondent,
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen,
against
the State Administration Office of Saxony-Anhalt,
represented by the President,
Ernst-Kamieth-Straße 2, 06112 Halle (Saale),
Defendant and applicant,
included:
- The City of Kassel,
represented by the Magistrate,
Obere Königstraße 8, 34117 Kassel, - the Burgenland district,
represented by the district administrator,
Schönburger Straße 41, 06618 Naumburg,
because of
Child and youth welfare law
(distribution of foreign youths)
– Application for leave to appeal –
The Higher Administrative Court of the State of Saxony-Anhalt – 4th Senate – decided on November 26, 2024:
The defendant's application for leave to appeal against the judgment of the Administrative Court of Halle – 5th Chamber – issued following the oral hearing of September 5, 2024, is rejected.
The defendant bears the costs of the admission proceedings. Court costs (fees and expenses) are not levied. The extrajudicial costs of the interveners are not reimbursable.
REASONS
The defendant's application for leave to appeal against the contested judgment of the Administrative Court is unsuccessful because the submissions, the review of which is limited to the Senate (§ 124a para. 4 sentence 4, para. 5 sentence 2 VwGO), are not suitable to justify the acceptance of the asserted grounds for leave to appeal pursuant to § 124 para. 2 nos. 1, 2 and 3 VwGO.
1. Serious doubts as to the correctness of the administrative court's decision exist pursuant to Section 124 Paragraph 2 No. 1 of the Code of Administrative Court Procedure (VwGO) if the appellant, in the leave to appeal proceedings, challenges a single, fundamental legal principle or a single, significant finding of fact with cogent counterarguments (see Federal Constitutional Court, Decision of March 3, 2004 – 1 BvR 461/03 –, BVerfGE 110, 77 <83>). Cogent counterarguments in this sense exist if substantiated legal or factual circumstances are presented from which the established possibility arises that the first-instance decision is (in its result) incorrect (see Federal Constitutional Court, Decision of December 20, 2010 – 1 BvR 2011/10 –, juris, para. 19). This is lacking here.
The Administrative Court, in response to the plaintiff's amendment to the complaint, ruled that the main proceedings—originally seeking the annulment of the defendant's assignment order of September 18, 2023—were concluded. The Administrative Court reasoned that there had been a valid transition to a declaratory judgment action. In this case, the proceedings had been concluded because the defendant's assignment order of September 18, 2023, which had placed the plaintiff in the care of the youth welfare office of the second intervener, no longer had any legal effect. Furthermore, the complaint had been admissible until the occurrence of the event rendering the case moot. The success of the complaint was not affected by whether the original challenge had been well-founded up to the point of mooting; therefore, no such examination was necessary.
The grounds for appeal do not raise any serious doubts as to the correctness of this finding. The defendant neither contests the assumed resolution of the legal dispute nor disputes the (original) admissibility of the action, but rather explains in detail why he acted lawfully in both form and substance. However, the aspects addressed in this regard, in particular the legality of the distribution application filed by the first intervener and its binding effect on the defendant, concern the (original) merits of the action, which, in the opinion of the Administrative Court, is no longer relevant after the plaintiff's amendment of the subject matter of the dispute. The grounds for appeal do not even contradict this. Moreover, it is also in accordance with the highest court's jurisprudence that in administrative proceedings, in so-called settlement disputes, the merits of the action with the original application are generally not to be examined (see, for example, BVerwG, judgment of October 31, 1990 – 4 C 7.88 –, NVwZ 1991, p. 162 <163>; Clausing, in: Schoch/Schneider, Administrative Law, § 161 VwGO Rn. 28 with further references). An exception is made if the defendant expresses a significant interest within the meaning of Section 113 Paragraph 1 Sentence 4 of the Code of Administrative Court Procedure (VwGO) in clarifying that the action could not have succeeded from the outset (see Federal Administrative Court, Judgment of October 31, 1990 – 4 C 7.88 –, NVwZ 1991, p. 162 <163>; Wysk, in: Wysk, VwGO, 4th ed. 2025, Section 161 marginal note 45 with further references). However, the defendant has not demonstrated such an interest. While he does raise the risk of recurrence in his application for leave to appeal, an aspect that could lead to the assumption of a so-called interest in a declaratory judgment within the meaning of Section 113 Paragraph 1 Sentence 4 VwGO, this does not constitute such an interest. However, this requires a sufficiently concrete risk of recurrence, which can be assumed if, in the foreseeable future, a similar negative decision is to be expected under essentially the same factual and legal circumstances, or if the legal issues in dispute between the parties relating to the completed administrative act will arise again in a different way (see Wolff, in: Sodan/Ziekow, VwGO, 5th ed. 2018, § 113 para. 271 with further references). The defendant does not demonstrate a concrete risk in this sense by pointing out that, as a result of the administrative court's decision, he will be at the mercy of the unaccompanied minor's (UM) litigiousness or that of their legal representatives in comparable future cases, and thus also at the risk of having to bear the costs, without any alternative courses of action.
Apart from the fact that the submissions do not provide any concrete evidence of the actual occurrence of a comparable burden, there is generally no legitimate interest in clarifying legal questions that might arise for the defendant not in his relationship to the plaintiff, but to third parties (cf. Federal Administrative Court, judgment of April 25, 1989 – 9 C 61.88 –, NVwZ 1989, p. 862 <863>).
2. The defendant has also failed to demonstrate that the case presents any particular factual or legal difficulties within the meaning of Section 124 Paragraph 2 No. 2 of the Code of Administrative Court Procedure (VwGO). His corresponding arguments concern the (original) merits of the claim, which – as explained above (see 1.) – is irrelevant to the success of the now pending declaratory judgment action. Regardless, the defendant's submissions fail to explain what the particular difficulties in assessing the (original) merits of the claim should be. The mere assertion that, despite acting lawfully, the defendant is (permanently) forced into a losing position with adverse cost consequences is insufficient.
3. Finally, the appeal is also not admissible on the grounds of fundamental importance of the case (§ 124 para. 2 no. 3 VwGO [German Code of Administrative Procedure]). The defendant does not raise any legal or factual question that is relevant to the decision of the appellate court and requires clarification in the interest of legal uniformity (cf. Federal Constitutional Court, decision of the Second Chamber of the Second Senate of February 11, 2008 – 2 BvR 2575/07 –, juris, para. 12; Higher Administrative Court of Saxony-Anhalt, decision of November 28, 2016 – 4 L 46/16 –, juris, para. 9). His submissions amount to a general critique of the (cost) consequences of the Administrative Court's decision, without formulating a specific question and substantiating why it is considered to require clarification and to be relevant to the decision, and for what reasons it is deemed to have significance beyond the individual case.
Insofar as the defendant argues in this context that the Administrative Court completely disregarded Section 155 Paragraph 4 of the Code of Administrative Court Procedure (VwGO) in its decision on the allocation of costs, this cannot establish any fundamental importance, because according to Section 158 Paragraph 1 VwGO, the cost decision can only be appealed if the appeal on the merits can lead to a decision on the merits, which, in the case of appeals requiring leave to appeal, is only possible after leave to appeal has been granted – which is not applicable here (see Federal Administrative Court, decision of March 6, 2002 – 4 BN 7.02 –, p. 1385 <1386>; Wöckel, in: Eyermann, VwGO, 16th ed. 2022, Section 158 marginal note 4 with further references). Regardless of this, it is also insufficient to meet the requirement of presentation pursuant to Section 124a Paragraph 4 Sentence 4, Paragraph 5 Sentence 2 of the Code of Administrative Court Procedure (VwGO) to merely argue that the Administrative Court's reasoning as to why the application of Section 155 Paragraph 4 VwGO is not required in the present case (Judgment, p. 9) is not met by merely stating that the Administrative Court of Hanover imposed the costs on the youth welfare office in a similar case, without even beginning to explain why this decision should be applicable to the present case and more convincing than the one issued in the initial proceedings (cf. Federal Constitutional Court, Decision of June 23, 2000 – 1 BvR 830/00 –, NVwZ 2000, p. 1163 <1164>).
The decision on costs is based on Sections 154(2), 162(3), and 188 Sentence 2 of the Code of Administrative Court Procedure. It would be inequitable to impose the extrajudicial costs of the interveners on the defendant, because they neither filed applications nor otherwise advanced the proceedings in the admission procedure.
This decision is final and cannot be appealed (§ 152 para. 1 VwGO).
