Key facts of the case:
The plaintiff filed a law suit before the regional social court of first instance against his health insurance claiming the refund of 1456,56 euro for dental prosthesis. The court dismissed the application. The Appellate court rejected the appeal for the plaintiff having failed to observe the time limit. The plaintiff initiated proceedings before the Federal Social Court and impleaded infringement of the right to be heard as the Appelate Court did not allow further appeal to the Federal Court, which granted the claim. The Federal Court took the position that further appeal should have been allowed according to Section 160 (2) Social Court Law (SGG) which stipulates that if the plaintiff pleads irregularities in the procedure and it is possible that the ruling is based on the procedural error, a further appeal has to be granted. No further explaination is required if the plaintiff pleads that he or she was not given the right to attend the oral hearing. In case the plaintiff is not informed about when the hearing is scheduled, it has to be assumed that the court could have come to a different decision as the plaintiff could have brought additional information. This is concluded from the high significance of hearings in social judicial procedures. The Federal Court then holds that the plaintiff was not informed properly. Although the Regional Court has delivered the summons to the hearing to the plaintiff´s address with proof of delivery by post, it did not reach the plaintiff as he had moved in the meantime. Effective delivery by substite service requires that the addressee runs a flat or business premises under the address which the plaintiff did not. This applies regardless of the fact that the Regional Court could not have known this.
The judgment of the Appelate Court is based on a procedural error (reason for allowing an appeal under § 160 para 2 No. 3 Social Courts Act (SGG)), which the plaintiff referred to in accordance with the requirements of § 160a para 2 S 3 SGG. The court´s decision infringed the right of the plaintiff to be heard (§ Art 103 para 1 of the Basic Law, Article 47 (2) 2 of the Charter of Fundamental Rights of the European Union (EUGrdRCh), Articel 6 of the European Human Rights Convention, Article 62 Social Court Law). The Appelate Court ruled on the issue on 07.03.2013, although the plaintiff was entitled to take the view that an instance-ending decision would not be ruled at this day.
Das LSG-Urteil beruht auf einem Verfahrensfehler (Revisionszulassungsgrund des § 160 Abs 2 Nr 3 SGG), den der Kläger entsprechend den Anforderungen des § 160a Abs 2 S 3 SGG bezeichnet. Das LSG hat den Anspruch des Klägers auf rechtliches Gehör (Art 103 Abs 1 GG, Art 47 Abs 2 S 1 Charta der Grundrechte der Europäischen Union, Art 6 Abs 1 Europäische Menschenrechtskonvention, § 62 SGG) verletzt. Es hat am 3.7.2013 in der Sache entschieden, obwohl der Kläger annehmen durfte, eine instanzbeendende Entscheidung werde jedenfalls an diesem Tage nicht ergehen.