DECISION
In the legal dispute
1. xxx,
2. xxx,
Plaintiff,
Legal representative(s):
for 1-2: Attorney Sven Adam
, Lange-Geismar-Straße 55,
37073 Göttingen,
against
Free and Hanseatic City of Hamburg,
Authority for the Interior and Sport,
Office for Migration,
Hammer Str. 30-34,
22041 Hamburg
Defendant,
Chamber 52 of the Hamburg Social Court decided on February 12, 2025, through Judge xxx of the Social Court:
The defendant shall bear the necessary extrajudicial costs of the plaintiffs.
REASONS
The proceedings in this case ended with the plaintiffs' declaration of settlement in a letter dated June 29, 2023. In the same letter, the plaintiffs requested a cost decision from the court pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG).
In the case of a dismissal of an action for failure to act (§ 88), the reimbursement of costs is governed exclusively by the provisions of procedural law; the substantive prospects of success are irrelevant. In proceedings under § 197a, § 161 para. 3 of the Administrative Court Procedure Act (VwGO) applies directly; in other proceedings, it applies mutatis mutandis. Accordingly, the costs are borne by the authority if the plaintiff could reasonably expect a decision before filing the action. If the action is filed after the expiry of the waiting period, the defendant must generally reimburse the plaintiff's extrajudicial costs (Meyer-Ladewig/Keller/Leitherer/Schmidt, 14th ed. 2023, SGG § 193 para. 13c with further references). Based on this, the defendant was ordered to bear the costs, because when the action was filed on April 10, 2023, the deadline under Section 88 Paragraph 2 of the Social Court Act (SGG) had already expired, as the plaintiff had filed an objection to the defendant's decision of December 16, 2022, more than three months earlier – namely on December 20, 2022. The defendant was also inactive, as it had not ruled on the objection until the action was filed; the decision was only issued on June 29, 2023. There is no sufficient reason for this inaction. It is irrelevant that the plaintiff did not inquire with the defendant about the status of his objection before filing the action for failure to act. The court agrees with the view that there is no general obligation to inquire about the status of a case before filing an action for failure to act, or that an inquiry with the authority is only necessary under special circumstances (Hessian State Social Court, decision of 15 February 2008, file no. L 7 B 184/07 AS; Berlin-Brandenburg State Social Court, decision of 6 March 2006, file no. L 30 B 168/04 AL and Baden-Württemberg State Social Court, decision of 14 September 2005, file no. L 10 LW 4563/04 AK-B). For it is fundamentally the purpose of the waiting periods under Section 88 of the Social Court Act (SGG) that the plaintiff may file an action for failure to act after the expiry of the periods without having to consider the existence of a sufficient reason and having to inquire about this with the authority as a precautionary measure (cf. Hessian State Social Court, loc. cit., para. 21 and Social Court Cologne, loc. cit., para. 8 – cited according to juris).
Insofar as the defendant cites an increased workload due to the change in responsibilities within the Free and Hanseatic City of Hamburg (FHH) that took effect on January 1, 2023, as well as the necessary implementation of a decision by the Federal Constitutional Court of October 19, 2022 (1 BvL 3/21), which has resulted in numerous legal proceedings, these circumstances are known to the court. However, due to the ongoing overload, they are not temporary, and therefore structural relief measures on the part of the defendant are required. Until such measures are implemented, the defendant's assumption of costs in the case of a delayed decision, as defined by Section 88 of the Social Court Act (SGG), appears equitable.
Legal remedies information
This decision is final and cannot be appealed (§ 172 para. 3 SGG).
