1. Decisions of the state social courts on basic income support for job seekers (SGB II)
1.1 – Bavarian State Social Court, decision of 22.08.2012. – L 11 AS 551/12 B PKH –
No legal aid will be granted for a standard-rate lawsuit.
1.2 – Bavarian State Social Court, decision of 17.08.2012, – L 7 AS 589/12 B ER –
The enforceability of the material advance payment claim is reduced compared to the benefit claim because the amount of the advance payment is at the discretion of the authority according to § 42 para. 1 sentence 1 SGB I.
1.3 – Bavarian State Social Court, decision of 16.08.2012, – L 7 AS 576/12 B ER –
An objection to an integration administrative act has no suspensive effect, because an anonymized publication of an applicant profile on the internet cannot, in principle, infringe social confidentiality (cf. the definition of anonymization in § 67 para. 8 SGB X).
Note:
Social Court Duisburg, judgment of 17 January 2011, – S 31 AS 479/08 –
Recipients of benefits under the German Social Code, Book II (SGB II) have no right to demand that the job center not be listed as the sender on their letters.
1.4 – Bavarian State Social Court, decision of 09.08.2012, – L 7 AS 511/12 B ER –
Someone who receives a particularly high income – such as the large inheritance in this case – of which substantial portions remain after twelve months, cannot subsequently be placed in a better position through a special income that is not subject to deductions than someone who had a low income or someone who owns assets (see also Geiger in LPK SGB II, 4th edition 2011, § 11 para. 41).
The same applies to the legal situation existing from 01.04.2012, according to which, pursuant to Section 11 Paragraph 3 Sentence 3 SGB II, the distribution period is a maximum of six months.
1.5 – Bavarian State Social Court, decision of 14.08.2012. – L 16 AS 568/12 B ER –
Spanish nationals are entitled to ALG II because they can invoke the principle of equal treatment under Article 1 of the European Social Security Convention (ESC).
The reservation declared by the Federal Government regarding the European Convention on Social Security is not effective (as held here by the Higher Social Court of Berlin-Brandenburg, decision of 9 May 2012, L 19 AS 794/12 B ER; decision of 23 May 2012, L 25 AS 837/12 B ER; Social Court of Berlin, decision of 25 April 2012, S 55 AS 9238/12, para. 53 et seq.; contra: Higher Social Court of Berlin-Brandenburg, decision of 7 June 2012, L 29 AS 920/12 B ER; decision of 21 June 2012, L 20 AS 1322/12 B ER; Social Court of Berlin, decision of 11 June 2012, S 205 AS 11266/12 ER).
There are doubts as to whether this is a new legal provision within the meaning of Article 16(b) EFA (see LSG Berlin-Brandenburg, decision of 09.05.2012, L 19 AS 794/12 B ER, para. 8).
Furthermore, the Bundestag should have been involved in the corresponding decision in accordance with Article 59 Paragraph 2 Sentence 1 of the Basic Law (in this sense also LSG Berlin-Brandenburg, decision of 23.05.2012, L 25 AS 837/12 B ER; SG Berlin, decision of 25.04.2012, S 55 AS 9238/12).
1.6 – Lower Saxony-Bremen State Social Court, decision of 03.08.2012, – L 11 AS 39/12 B ER –
1. If a certificate of freedom of movement pursuant to Section 5 of the Freedom of Movement Act/EU is available, the benefit provider under Book II of the German Social Code (SGB II) and the courts of the social jurisdiction are not bound by the information in the certificate as to the basis for the right of residence.
2. Self-employment within the meaning of Section 2 Paragraph 2 No. 2 of the Freedom of Movement Act/EU does not exist if the activity is of a completely subordinate and insignificant scope.
3. It can be assumed that the exclusion of benefits pursuant to Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) for job seekers of Romanian nationality is compliant with European law.
www.rechtsprechung.niedersachsen.de
Note:
Berlin-Brandenburg State Social Court, decision of 29 February 2012, - L 20 AS 2347/11 B ER –
Romanian citizens are excluded from benefits under the German Social Code, Book II (SGB II).
1.7 – Lower Saxony-Bremen State Social Court, decision of 20 July 2012, – L 9 AS 563/12 B ER –
1. The exclusion from benefits under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) applies to EU citizens if they do not yet have a connection to the German labor market.
2. The exclusion of benefits under Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II) does not violate either European primary law (Articles 18, 21, 45 TFEU) or European secondary law (Article 4 of Regulation (EC) No 883/2004). This legal opinion remains valid with regard to European secondary law even in light of Regulation (EC) No 883/2004, which entered into force on May 1, 2010 – continuation of the established case law (see the Senate's decision of August 2, 2007 – L 9 AS 447/07 ER = ZFSH/SGB 2008, 299).
3. A national of the United Kingdom of Great Britain and Northern Ireland cannot invoke the principle of equal treatment under Article 1 of the EFA when claiming benefits under Book II of the German Social Code (SGB II), because the Federal Government, by declaration of reservation dated 15 December 2011, which entered into force on 19 December 2011 (Announcement by the Federal Foreign Office dated 31 January 2012, Federal Law Gazette II, 2012, p. 144), has effectively excluded its application.
4. However, the Federal Government's declaration of reservation does not include benefits under the EFA in conjunction with the provisions of Chapter Three of the SGB XII.
5. The legislator has not made any deviation from the regulations of the EFA with § 23 para. 3 sentence 1 alternative 2 SGB 12.
6. Section 21 sentence 1 of the German Social Code, Book XII (SGB XII) does not preclude a claim under the EFA (Employee Support Act) in conjunction with the provisions of Chapter Three of the SGB XII if the person in need of assistance cannot claim benefits under the SGB II due to the provision in Section 7 paragraph 1 sentence 2 number 2 of the SGB II (SGB II) (in this sense also Higher Social Court of North Rhine-Westphalia, decision of June 27, 2007 – L 9 B 80/07 AS ER –, paragraphs 29 et seq.; Higher Social Court of Berlin-Brandenburg, decision of June 28, 2012 – L 14 AS 933/12 B ER –).
7. The reservation expressed by the Federal Government does not require an enabling act (left open: LSG Berlin-Brandenburg, decision of 9 May 2012 – L 19 AS 794/12 B ER -, para. 9).
www.rechtsprechung.niedersachsen.de
Various opposing views, including those found at: www.tacheles-sozialhilfe.de and www.fluechtlingsinfo-berlin.de (pdf)
1.8 – Lower Saxony-Bremen State Social Court, decision of 08.08.2012, – L 7 AS 285/12 B –
An application for legal aid must be rejected on the grounds of frivolous litigation if the authority, in the objection proceedings regarding later approval periods, has unsuccessfully requested a suspension arrangement until a court decision on the disputed issues of the parties in an earlier legal proceeding.
www.rechtsprechung.niedersachsen.de
1.9 – Lower Saxony-Bremen State Social Court, Decision of August 8, 2012, – L 7 AS 287/12 B –
Legal aid in further legal proceedings concerning unemployment benefit II for subsequent benefit periods is to be denied as frivolous if the authority unsuccessfully requested a stay of proceedings pending a decision on the same issue in a pending lawsuit brought by the parties in the preceding objection proceedings.
www.rechtsprechung.niedersachsen.de
1.10 – Berlin-Brandenburg State Social Court, Judgment of 21.08.2012, - L 36 AS 1162 /12 NK -, Appeal to the Federal Social Court allowed
. Berlin Housing Expenses Ordinance: Application for judicial review of regulations inadmissible – The Berlin Housing Expenses Ordinance does not apply to recipients of social assistance (SGB XII).
2. Decisions of the social courts on basic income support for job seekers (SGB II)
2.1 – Social Court Reutlingen, decision of 04.09.2012, – S 12 AS 1722/12 –
1) An exception to the obligation to issue a decision under Section 88 of the Social Court Act (SGG) exists only if the asserted claim cannot exist under any conceivable circumstances and not merely when the job center believes that the benefit recipient cannot succeed with the claim.
2) The job center must also bear the extrajudicial costs of the benefit recipient in the context of an action for failure to act that has since been settled, even if the application under Section 44 of the
German Social Code, Book Ten (SGB X), which was not decided within a reasonable time, was only submitted because the objection to the decision under review was dismissed as inadmissible. (sozialgerichtsbarkeit.de
2.2 – Social Court Berlin, decision of 25 April 2012, – S 78 AS 8137/12 ER –
The exclusion of EU citizens (Greeks) seeking employment from benefits is (still) unlawful.
There are considerable concerns regarding the applicability of the exclusion from benefits pursuant to Section 7 Paragraph 1 Sentence 2 Number 2 of the German Social Code, Book II (SGB II), in the case of an employable Greek national, both with regard to Article 4 of Regulation (EC) No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems and with regard to the European Social Security Agreement (ESA) of 11 December 1953, which was ratified by the Federal Republic of Germany and Greece.
The reservation declared by the Federal Republic of Germany with regard to the EFA on December 15, 2011 is probably ineffective, as this statement is ineffective in relation to the meaning and purpose of this agreement.
Note:
The exclusion of benefits for EU citizens under Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) is sometimes considered incompatible with Article 4 of Regulation (EC) No 883/2004 in case law, and it is argued that the provision should be interpreted restrictively in conformity with EU law in light of the directly applicable Article 4 of Regulation (EC) No 883/2004 (Social Court Dresden, Decision of August 5, 2011, Case No.: S 36 AS 3461/11 ER, para. 46, referring, inter alia, to Hessian Higher Social Court, Decision of July 14, 2011, Case No.: L 7 AS 107/11 B ER, paras. 18 et seq.; Social Court Berlin, Judgment of March 27, 2012, Case No.: S 110 AS 28262/11; Social Court Berlin, Decision of April 3, 2012, Case No.: S 129 AS 7051/12 ER, not published).
Elsewhere, the incompatibility of Section 7 Paragraph 1 Sentence 2 No. 2 of the German Social Code, Book II (SGB II) with Regulation No. 883/2004 is not considered mandatory, and the exclusion from benefits is ultimately deemed to be in conformity with European law (Berlin-Brandenburg Higher Social Court, decision of February 29, 2012, file number: L 20 AS 2347/11 B ER; Berlin-Brandenburg Higher Social Court, decision of March 5, 2012, file number: L 29 AS 414/12 B ER; Berlin-Brandenburg Higher Social Court, decision of April 3, 2012, file number: L 5 AS 2157/11 B ER).
2.3 – Social Court Dresden, Judgment of 27 June 2012, – S 40 AS 3905/10 –
Reimbursements of operating costs (§ 22 para. 1 sentence 4 old version of the German Social Code, Book II – now § 22 para. 3) are not to be offset against the rent already approved
This is because the operating cost reimbursements are to be deducted from the actual costs of accommodation owed in the respective crediting month and not from the accommodation costs approved by the previous provisional benefit award notices or from the reasonable accommodation costs.
Note:
SG Dresden, judgment of 16 January 2012, – S 36 AS 7571/10 –, shares the same view.
Author of the legal case ticker: Willi 2 from Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
