State Social Court of Lower Saxony Bremen – Case No.: L 6 AS 761/10B

Decision

In the appeal proceedings

xxx
Plaintiffs and complainants,

Legal representative:
Lawyer Adam,
Lange Geismarstraße 55, 37073 Göttingen,

against

xxx
Defendant and Respondent,

The 6th Senate of the State Social Court of Lower Saxony-Bremen in Celle decided on April 1, 2011 by xxx:

Upon the plaintiff's appeal, the decision of the Hildesheim Social Court of June 8, 2010, is overturned. The plaintiff is granted legal aid with the appointment of attorney Adam, Göttingen; no installments are payable.

Reasons:
The appeal is well-founded; the Social Court wrongly denied the prerequisites for granting legal aid (§ 73a para. 1 sentence 1 of the Social Courts Act in conjunction with § 114 sentence 1 of the Code of Civil Procedure). The plaintiff cannot afford the costs of litigation due to his personal and financial circumstances. Furthermore, the intended legal action offers sufficient prospects of success and does not appear frivolous.

The question of whether the exclusion of benefits stipulated in Section 7 Paragraph 1 Sentence 2 No. 1 of the German Social Code, Book II (SGB II) also applies when foreigners move to join spouses cannot be readily denied, particularly in light of the fundamental rights implications raised by the plaintiff, and the examination of the prospects of success pursuant to Section 114 Sentence 1 of the German Code of Civil Procedure (ZPO) must not lead to the transfer of the examination of this difficult, controversial and still unresolved legal question (decision of the Higher Social Court of North Rhine-Westphalia of December 7, 2009 – L 19 B 363/09 AS –, see also the decision of the 7th Senate of the Court of February 17, 2011 – L 7 AS 1323/10 B –) to the summary proceedings for legal aid. Rather, the granting of legal aid is intended to enable even plaintiffs with limited legal experience to have a difficult and complex legal question clarified through legal proceedings (in a main action) (BVerfGE 81, 347/357 ff). In such a case, the prospects of success may not be denied.

This decision cannot be appealed to the Federal Social Court (BSG), § 177 SGG.