VERDICT
In the administrative litigation
of xxx
Plaintiff,
Authorized representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen
against
The City of Kassel,
represented by the Magistrate, Town Hall, 34117 Kassel,
Defendant,
due to municipal law
The Administrative Court of Kassel – 3rd Chamber –
through Judge Zahn of the Administrative Court,
based on the oral hearing of March 10, 2026, has ruled as follows:
The defendant is ordered to pay the plaintiff €798.00.
The defendant shall bear the costs of the proceedings.
The judgment is provisionally enforceable with respect to costs. The defendant may avert enforcement by providing security in the amount of 110% of the amount enforceable under the judgment, unless the plaintiff provides security in the amount of 110% of the amount to be enforced before enforcement proceedings commence.
FACTS
The plaintiff, a member of the defendant's municipal council, seeks reimbursement from the defendant for the advance costs of an administrative legal dispute he initiated under municipal constitutional law.
At the meeting of the defendant's municipal council on July 12, 2021, the elections for the members of the supervisory board of Müllheizkraftwerk Kassel GmbH (Kassel Waste Incineration Plant Ltd.) to be proposed to the shareholders' meeting were held. Following an unsuccessful objection procedure, the plaintiff filed a lawsuit against these elections on November 19, 2026, with the Kassel Administrative Court (Case No.: 3 K 1956/21.KS). By order dated November 22, 2021, the court provisionally set the value in dispute at EUR 10,000. By invoice dated November 23, 2022, the plaintiff was ordered to pay advance court costs in the amount of EUR 798.
By letter dated December 1, 2021, the plaintiff requested that the defendant reimburse the costs from the invoice dated November 23, 2024. The defendant rejected this request by letter dated December 15, 2021, on the grounds that cost reimbursement is usually only made after the conclusion of the court proceedings on the basis of a cost assessment order.
After further unsuccessful correspondence, the plaintiff filed a lawsuit on May 17, 2022.
The plaintiff invokes the public-law right to reimbursement.
The plaintiff requests that
the defendant be ordered to pay the plaintiff 798 EUR.
The defendant requests that
the action be dismissed.
The defendant argues that, typically, a cost settlement only occurs after the conclusion of the court proceedings, based on a cost assessment order that definitively quantifies the amount of court fees. Only after the conclusion of the relevant proceedings is the defendant factually able to examine the potential amount of any claim for reimbursement of costs and whether any exclusionary grounds (frivolous filing of the lawsuit, avoidability of incurred costs) apply.
The parties have agreed to a decision by the rapporteur instead of the chamber.
For further details of the facts and the legal arguments, reference is made to the contents of the court file, which was made the subject of the oral proceedings.
REASONS FOR DECISION
The action, which is admissible as a general performance action, is well-founded. The plaintiff has a claim against the defendant for reimbursement of advance court costs for proceedings 3 K 1956/21.KS in the amount of EUR 798.
The legal basis is the generally recognized public-law claim for reimbursement, which, as an independent legal institution of state liability law, also applies in the area of municipal law. The public-law claim for reimbursement of costs by the losing body or part of a body in disputes between municipal constitutional bodies is not precluded by the fact that it is not expressly provided for in the Hessian Municipal Code. The absence of an express provision for such a claim for reimbursement in the Municipal Code cannot be interpreted as the legislature having decided against the application of this institution in cases of municipal constitutional law (as was the case for Bavarian municipal law: Administrative Court of Würzburg, judgment of January 17, 1996 – WZK 94/155 –, HSGZ 1998, 193 et seq.). The public-law claim for reimbursement presupposes the need to compensate for a transfer of assets that contradicts the substantive legal order. This shift in assets arises because the losing body has to bear the costs of clarifying a legal question, the answer to which is ultimately in the interest of the corporation. In a municipal dispute between bodies, this public-law claim for reimbursement manifests itself in the form of a claim by the losing body or part of a body against the corporation to which the body or part belongs, for reimbursement of the costs incurred in the legal proceedings (cf. AF., HSGZ 2005, 92 f.).
In a municipal constitutional dispute, personal rights are generally not pursued; rather, the focus is on safeguarding the rights of the municipal bodies in the interest of the proper functioning of the administration. The court's decision on costs merely determines who is primarily liable for costs vis-à-vis the court treasury, but does not consider the internal legal relationship between the public corporation and its acting bodies. A decision on costs, which, according to the letter of the Administrative Court Procedure Act (VwGO), applies exclusively to the parties in the individual legal dispute, cannot provide a conclusive ruling on the actual allocation of costs in a municipal constitutional dispute. However, the right to reimbursement exists only if the legal dispute was not initiated frivolously for extraneous reasons or extended beyond the scope of the body's functions. If losing bodies in municipal constitutional dispute proceedings—that is, those acting on their behalf—were always left to bear the costs without the public-law entity generally being obligated to reimburse them, every exercise of the rights vested in the body would transform into a significant financial risk for those working in that body, whether on a voluntary or professional basis. Legal action is regularly pursued in the interest of the municipality, to which all the bodies involved are collectively assigned. It is in the municipality's own best interest, and not just that of one of its bodies, that the boundaries of responsibility between the bodies are respected. Furthermore, costs incurred in municipal constitutional dispute proceedings must also be reimbursed by the legal entity whose bodies acted because these bodies typically do not have their own budgetary resources. An individual body or part of a body has a claim against the municipality, as the governing body, for reimbursement of incurred court costs because the municipality must provide the bodies with the resources necessary for their work. Only if the legal dispute did not concern membership rights at all, or if it was pursued willfully or against better judgment because the futility of such a legal remedy was readily apparent, is it justified to impose the costs materially on the body or the natural persons behind the body or the part of the body (cf. generally Bennemann in KVR Hessen, § 63 HGO Rdnr. 108-117 with further references).
These principles can be seamlessly applied to the present case, which concerns the reimbursement of court fees incurred prior to the final conclusion of the proceedings (here, case no. 3 K 1956/21.KS) pursuant to Section 6 Paragraph 1 Sentence 1 No. 5 of the Court Fees Act (GKG). The plaintiff, an honorary member of the municipal council, has the right to bring an action against the elections of the members of the supervisory board of Müllheizkraftwerk Kassel GmbH (Kassel Waste Incineration Plant Ltd.) to be proposed to the shareholders' meeting, pursuant to Section 55 Paragraph 6 of the Hessian Municipal Code (HGO). This is an objective objection procedure; a violation of the plaintiff's rights as a member of the municipal corporation is not a procedural requirement. The action is also not frivolous, as even the defendant's representative conceded during the oral hearing. This question can easily be assessed based on the statement of claim alone. It is irrelevant that, according to the wording of the statement of claim, case no. 3 K 1956/21.KS was directed against the wrong defendant. The plaintiff's attorney clarified during the oral proceedings that the lawsuit was intended to be directed against the municipal council from the outset; furthermore, an amendment to the lawsuit is permissible despite the defendant's objection because it is expedient (§ 91 para. 1 VwGO [German Code of Administrative Procedure]). Moreover, the outcome of the proceedings is irrelevant to the question of frivolousness. Therefore, the defendant is obligated to reimburse the costs in any case.
There is no apparent reason to delay the commencement of this reimbursement obligation until the proceedings have concluded with final legal effect. It must be considered that administrative disputes under municipal constitutional law have a high value in dispute (since July 1, 2025, even €15,000). The resulting advance court costs are, by their very nature, capable of having a deterrent effect and discouraging a body or part thereof from filing a lawsuit. In the present case, the plaintiff, in exercising his right to sue, has also filed suit in four other, identical or similar proceedings, which has resulted in the advance court costs totaling approximately €4,000. Given the length of administrative court proceedings, it is unreasonable to expect the plaintiff, who has no independent budgetary resources, to advance such a large sum for years. Therefore, in the court's opinion, there is a right to reimbursement of advance court costs in a municipal constitutional administrative dispute based on the public-law claim for reimbursement even before the legally binding conclusion of the proceedings, provided that the action is not frivolous or other grounds for exclusion apply.
The losing defendant must bear the costs of the proceedings pursuant to Section 154 Paragraph 1 of the Administrative Court Procedure Act (VwGO). The decision regarding provisional enforceability is based on Section 167 of the Administrative Court Procedure Act (VwGI) in conjunction with Sections 708 et seq. of the Code of Civil Procedure (ZPO).
The following is information on legal remedies.
DECISION
The amount in dispute is set at 798 EUR.
REASONS
The determination of the value in dispute is based on Section 52 Paragraph 1 of the Court Costs Act.
The following is information on legal remedies.
