DECISION
in the legal dispute
xxx,
– Plaintiff –
Legal representative:
Attorney Sven Adam Lange,
Geismar-Straße 55, 37073 Göttingen
against
State of Baden-Württemberg, Freiburg Regional Council,
represented by the Freiburg Regional Council,
Heinrich-von-Stephan-Straße 25, 79100 Freiburg
– Defendant –
The 7th Chamber of the Freiburg Social Court
on March 18, 2026 in Freiburg
through Judge xxx of the Social Court
without oral proceedings:
The defendant shall, in principle, bear the plaintiff's necessary extrajudicial costs.
REASONS
I.
The plaintiff received basic benefits from the defendant without written notification in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) during the period from February 24, 2023 to June 30, 2023, taking into account the standard benefit level 2 according to Sections 3 and 3a Paragraph 1 No. 2b and Paragraph 2 No. 2b of the AsylbLG, as he resided in a collective accommodation for refugees.
For the month of July 2023, he was granted benefits according to the same calculation method by written notice dated August 9, 2023. He filed an objection to this decision, arguing that the application of standard benefit level 2 for single asylum seekers receiving benefits in collective accommodations was unconstitutional. The defendant rejected the objection as unfounded by a notice of rejection dated November 21, 2023. The plaintiff, through his legal representative, then filed a lawsuit with the Freiburg Social Court (case no. S 10 AY 3399/23) and, after filing the lawsuit, agreed to the court's proposed stay of proceedings in light of the cases B 8 AY 1/22 and B 8 AY 2/22, which were already pending before the Federal Social Court (BSG) on the same legal issue. The court subsequently ordered the stay of those proceedings.
On February 20, 2024, the plaintiff filed an objection, citing the same grounds as before – namely, the unconstitutionality of the benefit calculation based on standard benefit level 2 – against the benefit award granted without a formal decision for the period from February 24, 2023, to June 30, 2023. Assuming that the plaintiff would also agree to the suspension of these objection proceedings, the defendant initially refrained from ruling on this objection. However, no explicit agreement regarding this course of action was reached between the parties.
On May 27, 2024, the plaintiff, through his authorized representative, filed the present action for failure to act with the Freiburg Social Court, seeking a decision on his objection of February 20, 2024, concerning the benefit period from February 24, 2023, to June 30, 2023. The defendant subsequently issued a decision on the objection on June 6, 2024, rejecting the objection as unfounded. In this matter, the plaintiff filed a lawsuit with the Freiburg Social Court under case number S 7 AY 1788/24 and, at the court's suggestion, also agreed to a stay of proceedings there in light of the pending cases before the Federal Social Court (BSG) under case numbers B 8 AY 1/22 and B 8 AY 2/22. By letter from his authorized representative dated June 14, 2024, the plaintiff declared the action for failure to act settled and requested that the defendant be ordered to reimburse his necessary extrajudicial costs incurred in this matter. The plaintiff argues that he did not file the action for failure to act in an abusive or unnecessary manner. He was not obligated to agree to the suspension of proceedings during the objection procedure simply because he had agreed to a suspension in the main action S 10 AY 3399/23 concerning the same legal issue. Rather, he has a legally protected interest in obtaining a decision on his objection and pursuing legal action, since, according to the jurisprudence of the Federal Social Court, back payments for unlawfully denied asylum seeker benefits are only "granted" (meaning: accrue interest) from the date the action is filed. He was also not obligated to clarify to the defendant that he desired a decision on his objection as soon as possible or to inquire about the status of his case before filing the action for failure to act. In fact, the defendant had no objective reason for not deciding within the time limit stipulated in Section 88 Paragraph 2 of the Social Court Act (SGG).
The plaintiff requests that
the defendant be ordered to reimburse the plaintiff for the necessary extrajudicial costs of the action for failure to act.
The defendant requests
a ruling that no extrajudicial costs are to be reimbursed.
The defendant gave no cause for the lawsuit, as he was entitled to assume that the plaintiff agreed to suspend the objection proceedings – just as he did the lawsuit S 10 AY 3399/23 concerning the same legal issue. It is unclear why the plaintiff agreed to the suspension of the lawsuit but not to the suspension of the objection proceedings. The action for failure to act was therefore filed unexpectedly for the defendant. At the very least, the plaintiff could have expressed his interest in a prompt decision by simply inquiring with the defendant about the status of the case before filing the action for failure to act. Had he done so, the defendant would have decided on the objection promptly, even without filing such an action.
For further details, reference is made to the contents of the court file and the defendant's administrative file concerning the plaintiff (dated 6.6.2024).
II.
The plaintiff's request is successful.
Pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG), the court must, upon application, decide by order on the extent of cost reimbursement if the proceedings are terminated other than by judgment. In such a case, the court must consider, at its equitable discretion, the previous state of the facts and the legal arguments, as well as the prospects of success of the pending proceedings. The reasons for the initiation and resolution of the legal dispute must also be taken into account. In this context, it is particularly important to consider whether the legal dispute was necessary at all, or whether it could have been avoided had the parties acted appropriately.
In accordance with these principles, the defendant is in principle obligated to reimburse the plaintiff's necessary extrajudicial costs.
The action was entirely successful. The plaintiff achieved his objective by obtaining the decision on the objection dated June 6, 2024. The defendant would otherwise have been compelled to do so by court order. The action for failure to act was justified because the defendant was inactive without objective justification at the time the action was filed on May 27, 2024. In particular, the defendant could not assume that the plaintiff did not currently desire a decision on his objection simply because he had consented to the suspension of proceedings in case S 10 AY 3399/23. As the plaintiff's attorney correctly stated, any subsequent payments on unlawfully denied asylum seeker benefits are subject to interest only from the date the action is filed (not "to be granted"; the plaintiff's attorney's statement of July 12, 2024, is likely a typographical error or a misunderstanding). This follows from the judgment of the Federal Social Court (BSG) of October 25, 2018, file number B 7 AY 2/18 R (juris). The plaintiff could therefore have a legally protected economic interest in agreeing to the suspension of the proceedings not at the objection stage, but rather during the main proceedings.
The action for failure to act was also not inadmissible on the grounds of lack of need for legal protection or abuse of rights.
Anyone who files an objection is entitled to a decision on their objection and is not legally obligated – even if it would be sensible and efficient – to agree to a stay of proceedings pending expected decisions by the highest court on the disputed legal issue (Federal Constitutional Court, decision of April 24, 2025, file no. 1 BvR 1902/24, juris para. 16). A different rule may apply only if the decision by the highest court is imminent or foreseeable in the near future, for example, if a hearing date has already been set. However, this was not the case here.
Furthermore, the defendant – as far as can be ascertained from the administrative file – never expressly suggested to the plaintiff's representative that the objection proceedings be suspended, so he was entitled to await feedback from the representative on this matter. However, the mere unilateral "suspension" of objection proceedings by the authority, without prior communication with the objector, not only fails to provide a valid reason for the lack of a decision on the objection, but also does not preclude the admissibility of the action for failure to act. Therefore, filing the action for failure to act was – especially considering the accrual of interest on any subsequent payment due upon commencement of legal proceedings – neither an abuse of process nor was there a lack of standing to sue.
The plaintiff was not obligated to consult with the defendant regarding the status of the case or to clarify that he sought a decision as soon as possible before filing the action for failure to act. Generally, such "advance warning" is not required before filing an action for failure to act (Federal Constitutional Court, decision of February 8, 2023, case no. 1 BvR 311/22 – juris). This may only be different if the appellant has previously established grounds that would allow the authority to assume that a decision on the appeal is (currently) not desired. In such a case, the unexpected filing of an action for failure to act could constitute an abuse of process. This is the case, for example, if the appellant announces further submissions or the submission of additional documents, or even conceivable if the authority expressly states that it assumes consent to the suspension of the appeal proceedings and the appellant accepts this without objection. However, the plaintiff did not establish such grounds in the appeal proceedings here. The parties did not discuss a suspension of the objection proceedings at all. For the reasons already explained above (interest accruing on any subsequent payment from the date the lawsuit was filed), the defendant could not conclude, without further consultation, that the consent declared to the court in case S 10 AY 3399/23 to the suspension of the action therein would automatically include all further objection proceedings on the same legal issue.
For the reasons just outlined, it therefore also appears equitable, from the perspective of causing an unnecessary action for failure to act, that the defendant should bear the plaintiff's necessary extrajudicial costs, since, without any reliable basis and without further communication, he ultimately and wrongly assumed that the plaintiff agreed to the suspension of the objection proceedings. Therefore, it is precisely the defendant, and not the plaintiff, who is at fault for not having avoided unnecessary litigation with a simple inquiry.
As a result, the defendant shall bear the plaintiff's necessary extrajudicial costs in full.
This decision is final and cannot be appealed pursuant to Section 172 Paragraph 3 No. 3 of the Social Court Act (SGG).
