DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
– Plaintiff –
against
State of Saxony-Anhalt, represented by the State Administration Office,
represented by the President,
Ernst-Kamieth-Straße 2, 06112 Halle
– Defendant –
The 31st Chamber of the Social Court of Magdeburg decided on January 23, 2026, through its presiding judge, Judge xxx of the Social Court:
The defendant shall bear the plaintiff's necessary extrajudicial costs.
REASONS
I.
After the main proceedings have been concluded, the last point of contention is whether the defendant is required to reimburse the necessary extrajudicial costs for the action for failure to act filed on September 29, 2025.
By letter dated June 20, 2025, the plaintiff's legal representative filed an objection with the Harz district against the amount of benefits granted under the Asylum Seekers' Benefits Act (AsylbLG) for the period from July 1, 2024, until the transfer to Poland on November 4, 2024. The plaintiff requested benefits at the level of standard benefit rate 1. The plaintiff re-entered the Federal Republic of Germany on December 29, 2024.
By letter dated 19 August 2025, the Harz district, since the objection could not be remedied, notified the defendant of the submission of the case.
On September 29, 2025, the plaintiff, through his legal representative, filed a lawsuit and requested a decision on his objection. By decision on the objection dated December 20, 2025, the defendant rejected the objection as inadmissible. The plaintiff, through his legal representative, then filed a lawsuit on December 30, 2025 (Case No.: S 31 AY 142/25).
Following the issuance of the decision on the objection, the plaintiff declared the legal proceedings settled on December 29, 2025, and requested that the defendant be ordered to pay the costs of the proceedings. The defendant stated that he would not acknowledge any liability for costs, as the objection of June 20, 2025, had been rejected as inadmissible due to being filed too late.
Following the presiding judge's observation that, for the purposes of cost reimbursement under Section 193 Paragraph 1 of the Social Courts Act (SGG), it was irrelevant whether an objection was rejected as inadmissible or unfounded, the defendant submitted a statement on January 22, 2026, maintaining his position. He argued that there were at least doubts as to the admissibility of the action for failure to act under Section 88 Paragraph 2 SGG, because there was no legitimate interest in legal protection. Such interest is lacking, he asserted, if filing the action for failure to act merely constitutes the exploitation of a formal legal position without any personal benefit (abuse of rights). This was the case here, he argued, due to the filing of an untimely objection. There had been an excessive and abusive use of the administrative services and, consequently, of the social courts. The benefit of the action for failure to act was limited solely to obtaining (further) fees in the context of seeking reimbursement of the plaintiff's necessary extrajudicial costs. Since the action for failure to act filed on 29 September 2025 lacked a legitimate interest in legal protection, it was inadmissible from the outset, irrespective of the expiry of the three-month waiting period.
II.
Pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Courts Act (SGG), the court decides by order, upon application, whether and to what extent the parties must reimburse each other's costs if the proceedings are terminated other than by judgment. The court decides at its equitable discretion, taking into account the previous state of the case and the merits of the dispute. All circumstances of the individual case must be considered. In particular, the prospects of success of the application, as well as the reasons for filing the application and the resolution of the legal dispute, are decisive (see Meyer Ladewig/Keller/Leiterer, SGG, Section 193, marginal note 13).
According to these principles, the defendant must bear the plaintiff's extrajudicial costs. The action for failure to act was admissible and well-founded; it would therefore have been successful if the court had been required to render a judgment on it at the time the matter was otherwise resolved. Pursuant to Section 88 Paragraph 2 of the Social Court Act (SGG), an action for failure to act is admissible if no decision has been made on an objection within a period of three months. An action for failure to act is well-founded if the failure to decide is not based on a sufficient reason. The defendant only decided on the plaintiff's objection, filed on June 20, 2025, on December 20, 2025, and thus after the expiry of the waiting period stipulated in Section 88 Paragraph 2 of the SGG. No sufficient reason for the failure to decide on the objection within the three-month period has been presented, nor is any apparent on the merits.
The action for failure to act was also not unreasonable. In particular, it was not lacking in the necessary legal interest. Such a need for judicial protection does not generally exist if the plaintiff obviously cannot obtain any significant legal or factual advantages from the requested judicial decision and therefore recourse to the court is useless for him (Federal Administrative Court, Judgment of April 29, 2004, Case No. 3 C 25/03, para. 19, cited according to juris; Keller in Meyer/Ladewig/Keller/Leitherer, Commentary on the Social Courts Act, 12th edition, Introductory Note to § 51, para. 16). Contrary to the defendant's view, the plaintiff cannot be accused of an abuse of process.
The (assumed) inadmissibility of the objection does not release the defendant from the obligation to issue a decision within the reasonable period of three months. The relevant directive for handling objections is Section 85 of the Social Court Act (SGG), which presents the administration with the alternative of either issuing a remedial decision (paragraph 1) – if and to the extent that the objection is deemed justified – or a decision on the objection (paragraph 2). With this provision, the legislator expresses that the objection procedure must, in principle, be formally concluded by a decision (Schleswig-Holstein Higher Social Court, judgment of April 28, 2021, case no.: L 9 SO 1/21, para. 33, cited according to juris). Given the fundamental obligation of the authority to issue a decision, even regarding inadmissible or unfounded applications or objections, dismissing an action for failure to act as inadmissible due to a lack of standing is an absolute exception (Diehm in: BeckOK, as of November 1, 2025, § 88, marginal note 36; Claus in: jurisPK, 2nd edition, § 88, marginal note 21). An abuse of rights would exist, for example, if the plaintiff, through their conduct, created a legitimate expectation on the part of the authority (LSG NRW, decision of May 9, 2011, file no.: L 7 AS 218/11 B, marginal note 23, cited according to juris) and the authority could, accordingly, rely on the individual circumstances to assume that the plaintiff no longer had an interest in pursuing legal action. However, such a legitimate expectation has not been created in the present case. This is already evident from the fact that the plaintiff holds a different view than the defendant, assumes the admissibility of the action, and ultimately filed a lawsuit against the rejection of the objection. Even in the case of an inadmissible objection, the plaintiff has a right to a decision in order to make the decision subject to judicial review.
It should be noted, for the sake of completeness, that contrary to the defendant's assertion, the objection is not "obviously" inadmissible in the specific circumstances at hand. A final decision on this matter remains reserved for the Chamber in the pending legal proceedings S 31 AY 142/25.
An action for failure to act is not abusive simply because the legal representative's fee interests played a significant role in its levy (cf. Claus in: jurisPK, 2nd edition, § 88 RN 22 with further references).
The defendant shall bear the plaintiff's necessary extrajudicial costs for the action for failure to act. No further circumstances arising from the procedural history that could justify a different allocation of costs are apparent, nor have any been presented.
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