1. Decisions of the Federal Social Court of 08.12.2016 and of 19.00.2016 on basic income support for job seekers (SGB II)
1.1 – BSG, Judgment of 08.12.2016 – B 4 AS 59/15 R
Basic income support for job seekers – consideration and calculation of income – deduction of the insurance allowance – contributions for a supplementary insurance policy for private student accident insurance for a minor, offered only in Baden-Württemberg
No deduction of the lump sum of EUR 30 for a private student accident insurance policy with a low premium.
Guiding principle (Editor):
The flat-rate allowance of €30 per month for the minor contribution to the Baden-Württemberg supplementary student insurance is not deductible from the minor's income according to Section 11b Paragraph 1 Sentence 1 Number 3 of the German Social Code, Book II (SGB II) in conjunction with Section 6 Paragraph 1 Number 2 of the German Regulation on Unemployment Benefit II (Alg II-V), because it is not an insurance policy triggering the flat-rate allowance within the meaning of Section 6 Paragraph 1 Number 2 of the Alg II-V. The rather symbolic annual contribution of €1 is not an insurance premium that stands in a reciprocal relationship to the insured risks.
Source: juris.bundessocialgericht.de
1.2 – BSG, Judgment of 19.10.2016 – B 14 AS 40/15 R
Social court proceedings – joinder – parties involved – joinder of claims – basic income support for job seekers – exclusion of benefits for trainees – receipt of training allowance by a disabled child during participation in a vocational preparation measure with boarding school accommodation – child's share of accommodation costs in the parents' home – loan pursuant to Section 27 of the German Social Code, Book II (SGB II) – limitation of liability of minors
Special hardship case according to § 27 para. 4 SGB II
: A claim against the provider of basic income support for job seekers for the assumption of the expenses of the previous apartment in the form of a loan according to § 27 para. 4 sentence 1 SGB II may exist due to a special hardship case.
Principle (Editor):
The applicant, who is subject to the exclusion from benefits under Section 7 Paragraph 5 of the German Social Code, Book II (SGB II) due to the approved vocational preparation course with boarding school accommodation, is entitled to benefits under Section 27 Paragraph 4 of the SGB II (old version), which was created by the legislature to ensure the minimum subsistence level of the person concerned in cases of hardship. The Jobcenter must grant the plaintiff a loan to cover the costs of accommodation and heating based on this provision.
Source: socialcourtsability.de
2. Decisions of the State Social Courts on Basic Income Support for Job Seekers (SGB II)
2.1 – State Social Court of Baden-Württemberg, Decision of 12 August 2016 – L 3 AS 2476/16 ER-B
The motor scooter acquired through inheritance represents a substitute for the inherited sums of money and, consequently, income
Principle (Juris)
1. On the question of the distinction between income and assets in the case of an inheritance.
2. A one-off payment may only be taken into account as reducing the need over the (here six-month) distribution period insofar as it is suitable as a readily available resource to cover the specific need in the respective month (following BSG, judgment of 29.11.2012, B 14 AS 33/12 R).
3. A motor scooter acquired with funds from an inheritance constitutes income as a substitute for the inherited funds during the assessment period, which, if realizable, can continue to be offset against the applicant's needs.
Source: socialcourtsability.de
2.2 – Baden-Württemberg State Social Court, Judgment of 26 January 2017 – L 7 AS 1192/13
Guiding principle (Editor):
On the consideration of a capital-forming life insurance policy as realizable assets according to § 12 SGB II (here affirmed as a sham transaction)
Source: socialcourtsability.de
2.3 – Baden-Württemberg State Social Court, Judgment of 24 August 2016 – L 3 AS 2104/15
Principle (Juris)
1. The one-year time limit does not apply to the revocation of decisions pursuant to Section 45 Paragraph 4 Sentence 2 of the German Social Code, Book X (SGB X), in the case of provisional benefit granting pursuant to Section 328 of the German Social Code, Book III (SGB III).
2. A period of 2 years between the submission of the documents by the plaintiff allowing a final assessment and receipt of the decision by which the defendant made a final decision on the plaintiff's claim pursuant to Section 328 Paragraphs 2 and 3 of the German Social Code, Book III, and asserted a claim for reimbursement, does not in itself constitute forfeiture.
Source: socialcourtsability.de
2.4 – Rhineland-Palatinate State Social Court, Judgment of 29 November 2016 – L 3 AS 137/14
The Rhineland-Palatinate State Social Court (LSG Rheinland-Pfalz) confirms the Donnersberg district's concept for determining reasonable accommodation costs
Guiding principle (Editor):
Donnersbergkreis has a coherent concept for reasonable accommodation costs according to the German Social Code, Book II (SGB II).
Source: socialcourtsability.de
Press release 2/2017 of the Rhineland-Palatinate State Social Court: lsgrp.justiz.rlp.de
2.5 – Saxon State Social Court, Judgment of 14 February 2017 – L 7 AS 2055/13
Regarding the crediting of a back payment of wages that was received after the application was submitted.
Principle (Editor)
1. The Federal Social Court (BSG) has consistently ruled that back payments of wages, transitional allowance, sickness benefit, or unemployment assistance received after application for past periods must be considered in full as current income within the meaning of Section 2 Paragraph 2 Sentence 1 of the former Regulation on Unemployment Benefit II (AlgII-V aF) or within the meaning of Section 11 Paragraph 2 Sentence 1 of the German Social Code, Book II (SGB II) in the version applicable since April 1, 2011, and do not constitute a one-off payment within the meaning of Section 2 Paragraph 4 of the former Regulation on Unemployment Benefit II (AlgII-V aF) or within the meaning of Section 11 Paragraph 3 of the German Social Code, Book II (SGB II) in the version applicable since April 1, 2011.
2. Only from August 1, 2016, did the legislator clearly stipulate that one-off income also includes back payments received for a period not corresponding to the month in which they are received (§ 11 para. 3 sentence 2 SGB II as amended by the Ninth Act Amending Book Two of the Social Code – Simplification of Law – and Temporarily Suspending the Obligation to File for Insolvency of July 26, 2016, Federal Law Gazette I, pp. 1824, 2718). Although the legislator refers to this as a clarifying amendment (Bundestag Printed Matter 18/8041, p. 33), the wording of the law, until July 31, 2016, permitted the consideration of back payments as income only according to the provisions of § 11 para. 2 SGB II.
Source: socialcourtsability.de
2.6 – Lower Saxony-Bremen State Social Court, decision of 22 February 2017 – L 13 AS 26/17 B ER
Basic income support law – Preliminary legal protection – Grounds for an order relating to past periods
Principle (Juris):
1. Grounds for an injunction for periods prior to a court decision may only be assumed in exceptional cases, if a serious, irreparable, and unreasonable disadvantage that is still present is credibly demonstrated. The mere existence of liabilities is not sufficient.
2. Solely for reasons of effective legal protection, past periods from the date of receipt of the application for interim relief by the court are also taken into account, beginning with the point in time at which the claim for an injunction and the grounds for the injunction were substantiated (cf. in this regard the fundamental Senate decision of 3 March 2008 – L 13 AS 295/07 ER – juris para. 16 et seq.).
3. The purpose of preliminary legal protection under the German Social Code, Book II (SGB II), is regularly to provide an applicant (only) with the means he needs to remedy current, i.e., presently existing, emergencies in order to maintain a life of human dignity.
Source: www.rechtsprachung.niedersachsen.de
3. Decisions of the social courts on basic income support for job seekers (SGB II)
3.1 – Hamburg Social Court, Judgment of 10 July 2015 – S 22 AS 684/10 – Appeal allowed
Regarding the question of entitlement to additional needs pursuant to Section 30 Paragraph 1 No. 2 of the German Social Code, Book XII (SGB XII) for the period prior to the issuance of a determination notice – applicability of Section 16 Paragraph 2 Sentence 2 of the German Social Code, Book I (SGB I) – retroactive provision of benefits – consideration – not – only from the date of submission of proof
Guiding principle (Editor):
1. The purpose of the provision in Section 16 Paragraph 2 of the German Social Code, Book I (SGB I), is to prevent citizens from being denied social benefits due to the division of responsibilities within the structured social administration (Federal Social Court [BSG], Judgment of August 26, 2008, B 8/9b SO 18/07 R; Higher Social Court of Lower Saxony-Bremen [LSG Niedersachsen-Bremen], Judgment of January 22, 2014, L 13 AS 190/12). Therefore, in the relationship between the various social authorities and citizens, it is irrelevant whether the erroneous assumption of responsibility was made carefully or negligently.
2. A claim for consideration of additional needs as a severely disabled person also exists for the period before the issuance of the determination notice, since, unlike earlier versions, the provision does not require the "possession" of a corresponding document. (Similarly Simon, in: Coseriu/Eicher, jurisPK-SGB XII, 2nd ed. 2014, § 30 para. 46; contra LSG Baden-Württemberg, judgment of 18.09.2013, L 2 SO 404/13; SG Wiesbaden, judgment of 30.04.2014, S 30 SO 47/12).
3. In accordance with the most-favored-nation principle, an application for benefits under Chapter Four of the German Social Code, Book XII (SGB XII) can be interpreted as encompassing all eligible benefits, including additional needs under Section 30 of the SGB XII (Social Court Karlsruhe, Judgment of 30 January 2014, S 1 SO 3002/13).
Source: sozialgerichtsbarkeit.de
Legal tip:
Social Court Landshut, judgment of S 5 SO 70/14 – pending before the Federal Social Court under file number B 8 SO 25/16 R
(Social assistance – basic income support for the elderly and those with reduced earning capacity – additional needs allowance upon proof of the determination of the disability marker G – retroactive approval – included in the original benefit application – notice of cancellation pursuant to Section 48 Paragraph 1 Sentence 2 No. 1 SGB 10)
For the recognition of additional needs due to significant walking disability according to § 30 para. 1 SGB 12, does the decisive factor depend on the date of presentation of the severely disabled person's identity card or a corresponding notification to the social welfare agency, or on the date specified in the notification of the fulfillment of the requirements for the "G" symbol?
Principle (Juris):
1. Section 30 Paragraph 1 of the German Social Code, Book XII (SGB XII) does not explicitly require proof of the determination of the disability marker "G" and documentation of this in the files of the responsible social welfare agency for the commencement of the additional needs allowance. The wording of the law and its legislative history do not permit such a reliable conclusion. (Paragraph 21)
2. Rather, a strict distinction must be made between the point in time when the conditions for the disability marker "G" are established and the point in time when proof is provided. (Paragraph 25)
3. Although proof must be provided to the social welfare agency, according to a teleological interpretation of Section 30 Paragraph 1 of the German Social Code, Book XII (SGB XII), this proof can also be provided for a past period. (Paragraph 25)
Guiding principle
1. An application for basic income support for the elderly and those with reduced earning capacity must always be interpreted as encompassing all applicable benefits, in particular the supplements increasing the standard benefit pursuant to Section 30 of Book XII of the German Social Code (SGB XII). (Paragraph 29)
2. Although the conditions for the disability marker "G" were met before the issuance of the benefit notice, a subsequent change within the meaning of Section 48 Paragraph 1 of the German Social Code, Book Ten (SGB X), must nevertheless be assumed in this case, because the change was only established by a decision of the social welfare office, which was issued during the current benefit period and therefore could not yet be taken into account when the benefit notice was issued. (Paragraph 33)
3.2 – Hamburg Social Court, Judgment of 06.07.2015 – S 49 AS 4183/13
Regarding the crediting of operating cost credits within the meaning of Section 22 Paragraph 3 of the German Social Code, Book II (SGB II).
There is no legal basis for splitting the operating cost credit in half and crediting it in half over two months.
Principle (Editor)
1. The operating cost credit totaling €424.40 is not to be credited in two equal installments against the benefits for accommodation and heating costs for November and December 2011, but rather in such a way that no benefits for accommodation and heating would have been payable for November 2011, and the remaining credit amount of €11.80 was to be credited for December 2011. The crediting rule in Section 22 Paragraph 3 of the German Social Code, Book II (SGB II) is to be applied in this manner (see Hamburg Social Court, Judgment of March 14, 2014 – S 22 AS 2940/12).
2. In the case of a utility bill credit that is not refunded to the recipient by the landlord but is treated as a credit note, the actual receipt of funds does not occur upon notification of the credit in the utility bill, but rather upon the first opportunity to offset the credit. This is because only the possibility of offsetting the credit reduces the recipient's actual rent and thus represents an increase in value (see Federal Social Court [BSG], judgment of March 22, 2012 – B 4 AS 139/11 R; Higher Social Court [LSG] Hamburg, judgment of March 19, 2015 – L 4 AS 12/14).
Source: socialcourtsability.de
3.3 – SG Karlsruhe, Judgment of 24.01.2017 – S 4 AS 1827/16 –, not legally binding
Entitlement of a Syrian refugee with EU citizenship to supplementary benefits under the German Social Code, Book II (SGB II) in the case of only marginal employment
Court Note:
The plaintiff, according to the chamber, is generally entitled to freedom of movement as an EU national and could only be excluded from benefits under the SGB II under the conditions of § 7 para. 1 sentence 2 SGB II aF if his right of residence arose solely from the purpose of job seeking.
With an average monthly income of €252, there was already a sufficient connection to the German labor market within the meaning of the European freedom of movement regulations, according to which the plaintiff was already to be assessed as an employee and no longer (only) as a job seeker.
According to relevant case law, an overall assessment of integration into the labor market must be undertaken, whereby even monthly incomes of less than €200 have been recognized by the courts as sufficient for employee status. In the plaintiff's case, he also has an open-ended employment contract, attends daily German lessons, and has received an assurance from his employer that he will be able to work more hours if his German language skills improve.
The defendant job center's argument that the plaintiff should be required to have a higher monthly income because he was responsible for a family of five was not heard. The court deemed the existence of maintenance obligations irrelevant to the question of whether a person has sufficient connection to the labor market.
Source: www.socialcourt-karlsruhe.de
3.4 – Gelsenkirchen Social Court, decision of 07.03.2017 – S 31 AS 370/17 ER
Regarding the assumption of rent arrears within the meaning of Section 22 Paragraph 8 of the German Social Code, Book II (SGB II), denied here due to exclusion from benefits
Principle (Editor)
1. The applicant's exclusion from benefits follows from Section 7 Paragraph 1 Sentence 2 No. 2 lit. b) of the German Social Code, Book II (SGB II), as amended and in force from December 29, 2016. Furthermore, the applicants are also not entitled to social assistance pursuant to Section 23 Paragraph 1 Sentence 3 of the German Social Code, Book XII (SGB XII) – Social Assistance – as amended and in force from December 29, 2016.
2. The exclusion of foreign EU citizens from benefits under Section 23 Paragraph 3 Sentence 1 No. 2 of the German Social Code, Book XII (SGB XII), who are residing in Germany solely for the purpose of seeking employment, is not objectionable from a constitutional perspective (cf. regarding the current legal situation, Social Court Dortmund, decision of January 31, 2017 – S 62 SO 628/16 ER; see also regarding the previous legal situation, Bavarian State Social Court, decision of October 13, 2015 – L 16 AS 612/15 ER; State Social Court Rhineland-Palatinate, decision of November 5, 2015 – L 3 AS 479/15 B).
Source: socialcourtsability.de
4. Decisions of the social courts on social assistance (SGB XII)
4.1 – Social Court Kassel, decision of 21.02.2017 – S 12 SO 8/17 ER
Bulgarian applicants are entitled to the respective standard benefits for subsistence in the form of the standard allowance according to § 23 para. 1 sentence 3 SGB XII.
Social Court Kassel on the EU Citizens' Exclusion Act: Questionable constitutionality and therefore entitlement to benefits under Chapter 3 of the German Social Code, Book XII (SGB XII)
Principle (Editor)
1. The Chamber follows the opinion of the 11th Chamber, decision of 15 February 2017 (Case No.: S 11 SO 9/17 ER):
Guiding principles there by Dr. Manfred Hammel:
Despite the provision of Section 23 Paragraph 3 Sentence 1 of the German Social Code, Book XII (SGB XII), according to which foreigners who have entered the federal territory to obtain social assistance, or whose stay is solely for the purpose of seeking employment, are still obligated to grant assistance for subsistence in accordance with Section 23 Paragraph 1 Sentence 1 of the SGB XII in conjunction with Section 23 Paragraph 1 Sentence 3 of the SGB XII.
This applies particularly when the right of residence of a non-German person excluded from benefits under the German Social Code, Book II (SGB II), has become permanent in Germany. This permanent residence can only be countered by the immigration authorities.
The bridging benefits provided by the legislator in Section 23 Paragraph 3 Sentence 3 and Paragraph 3a of the German Social Code, Book XII (SGB XII), do not constitute constitutionally mandated compensation for the sudden loss of basic assistance.
Note:
See also: Principle (Juris)
1. Regarding the formal and substantive finality of legally binding social court decisions granting preliminary benefits in interim legal protection proceedings, the legal effect of an implementing order based thereon, the unused opportunity for judicial modification of corresponding administrative decisions, the modification/revocation of such an implementing order by the administration without court involvement, the suspensive effect of an objection and an action against the revocation/modification of such an administrative decision made without a court ruling, the initial order for the immediate enforcement of the revocation/modification order in the objection decision, and the legal consequences of a hearing that was knowingly omitted in the preliminary proceedings, despite a hearing that had previously been unlawfully omitted.
2. Regarding the potential constitutionally compliant claim to continued social assistance, at least in preliminary legal protection, by those EU citizens who, at the time Section 23 of the German Social Code, Book XII (SGB XII) came into force in the version applicable from December 29, 2016, were already receiving social assistance without any legally permissible time limit, or who, according to the case law of the Federal Social Court, previously had a corresponding claim (see Social Court Kassel, decisions of December 16, 2016, S 12 SO 38/16 ER, of February 13, 2017, S 11 SO 7/17 ER and of January 14, 2017, S 4 AS 20/17 ER).
Source: socialcourtsability.de
5. Decisions of the Higher Social Courts, Social Courts and Administrative Courts on Asylum Law
5.1 – Higher Social Court of Lower Saxony-Bremen, 8th Senate, Decision of 12 December 2016, L 8 AY 51/16 B ER
Regarding the personal scope of application of Section 1a Paragraph 2 Asylum Seekers' Benefits Act (AsylbLG)
Principle (Juris)
1. Holders of a tolerated stay are not covered by the personal scope of application of Section 1a Paragraph 2 Sentence 1 AsylbLG as beneficiaries of benefits under Section 1 Paragraph 1 No. 4 AsylbLG.
2. When determining the value of the subject matter of the appeal within the meaning of Section 144 Paragraph 1 Sentence 1 No. 1 of the Social Court Act (SGG), insofar as it concerns the granting of ongoing subsistence benefits, a benefit period of (a maximum of) twelve months must generally be assumed, at least in preliminary legal protection proceedings.
Source: www.rechtsprachung.niedersachsen.de
5.2 – Hamburg Social Court, decision of 17 January 2017 – S 10 AY 92/16 ER
The application for an order suspending the enforcement is justified – suspension of enforcement – the revocation notice is unlawful – no hardship case within the meaning of Section 22 Paragraph 1 of the German Social Code, Book XII (SGB XII) – the applicant's entitlement to benefits is precluded by Section 22 Paragraph 1 of the German Social Code, Book XII (SGB XII)
No social assistance benefits for a tolerated foreigner after starting an inter-company vocational training program
Principle (Editor)
1. The illegality of the decision follows from the fact that it does not reveal the exercise of discretion.
2. The revocation of legally binding decisions that were unlawful from the outset therefore requires the exercise of discretion; this is not contradicted by the wording in Section 45 Paragraph 4 of the German Social Code, Book X (SGB X) ("will"). The justification for discretionary decisions must reveal the considerations on which the authority based its exercise of discretion (Section 35 Paragraph 1 Sentence 3 SGB X). However, discretionary considerations cannot be gleaned from the decision itself.
3. The law requires those affected by the exclusion from benefits to forgo starting or continuing a training course that would otherwise be eligible for funding and instead make themselves available to the labor market.
4. The characteristics stipulated in Section 59 Paragraph 2 of the German Social Code, Book III (SGB III) are individual prerequisites for receiving support under the SGB III. Their absence does not affect the fundamental – abstract – eligibility for support of the training occupation in question. The reason why the applicant is not receiving support under the SGB III is based on their personal circumstances, not on the type of training (contra: Hamburg Social Court, decision of September 7, 2016 – S 28 AY 56/16 ER: The denial of benefits under Section 59 Paragraph 2 of the SGB III is not an individual reason for denial because the tolerated foreigner does not belong to the group of persons eligible for support under the SGB III due to their immigration status).
Source: socialcourtsability.de
Legal tip:
See Baden-Württemberg State Social Court, decision of 17 January 2017 – L 7 AY 18/17 ER-B – The exclusion of benefits under the Federal Training Assistance Act (BAföG) pursuant to Section 8 BAföG for foreign students does not, in principle, constitute a case of hardship within the meaning of Section 22 Paragraph 1 Sentence 2 of the German Social Code, Book XII (SGB XII).
5.3 – Press release 08.03.2017 – Chemnitz Administrative Court makes fundamental decision on the question of under what conditions asylum seekers from Syria can demand the granting of refugee status – Judgments of 07.03.2017 – (Case Nos.: 6 K 720/16.A and 6 K 885/16.A)
While asylum seekers who have fled Syria are not automatically threatened with political persecution upon returning to Syria simply because they left the country and applied for asylum in Germany, the risk of arbitrary interrogations and even torture upon arrival – particularly at the international airport in Damascus – is indiscriminate and therefore not necessarily based on the political views attributed to the returnee by the Syrian regime.
However, a different rule applies if the asylum seeker exhibits particular characteristics that increase their risk. This is the case, for example, if an asylum seeker belongs to the group of persons obligated to perform military service in Syria. After evaluating all available evidence (including reports from the Federal Foreign Office, expert opinions from Amnesty International and other human rights organizations, statements from the UNHCR, information from various non-governmental organizations, and expert witnesses), the Sixth Chamber concluded that leaving Syria despite existing military service obligations would, with considerable probability, be viewed by the Syrian government as anti-regime behavior.
Source: www.justiz.sachsen.de
5.4 – Higher Administrative Court of Lüneburg, decision of 10 March 2017 – file no. 2 ME 63/17
Deportation of part of a family to Bulgaria:
The Higher Administrative Court of Lüneburg has ruled that a family partially deported to Bulgaria must tolerate the deportation.
Source: Press release from the Higher Administrative Court of Lüneburg dated March 10, 2017: www.juris.de
5.5 – VG Münster, Judgment of 08.03.2017 – Case No. 8a K 3540/16.A – VG Münster contradicts the case law of the OVG Münster.
Full refugee protection continues for Syrians
. The VG Münster has ruled that Syrian refugees have a general right to be granted refugee status.
With this ruling, the Münster Administrative Court contradicted the jurisprudence of the Münster Higher Administrative Court, which, in its ruling of February 21, 2017 (14 A 2316/16.A), had denied a general right of Syrian refugees to be granted refugee status.
An appeal against the judgment may be filed with the Higher Administrative Court of Münster within one month of service.
The verdict is not legally binding.
Source: Press release from the Münster Administrative Court dated March 10, 2017: www.juris.de
6. Miscellaneous information on Hartz IV, social assistance, asylum law and other legal codes
Federal Constitutional Court decision of 14 February 2017: Constitutional complaint concerning the rejection of an application for legal aid was successful
Partially granting the appeal: Violation of the right to equal access to justice by denying legal aid for expedited social court proceedings regarding a Polish national's claims to unemployment benefit II or social assistance – inadmissible anticipation of evidence, decision in legal aid proceedings despite an unclear and complex legal situation – complaint of a violation of the right to legal protection by denying expedited legal protection inadmissible due to lack of sufficient substantiation – determination of the value in dispute
Source: dejure.org
Federal Government Confirms: Standard Benefit Level 1 for Partners When the Other Partner Is Still a Refugee, an article by Claudius Voigt, GGUA.
Dear colleagues,
the Federal Government has now clarified that partners who are temporarily separated because their other partner is not yet living in Germany (still in their country of origin, a refugee camp in a neighboring country, or still a refugee) or has been assigned to a different location within Germany, must always receive the full standard benefit under the German Social Code, Book II (SGB II) (Standard Benefit Level 1). The Federal Government sees no possibility of granting Standard Benefit Level 2 in such cases. This is evident from the Federal Government's responses to two written questions from Jan Korte (The Left Party) and Brigitte Pothmer (The Green Party).
The clarification was prompted by reports from several advice centers indicating that job centers in these cases had only paid the standard benefit for partners and, in some instances, had even denied the additional benefit for single parents. This unlawful practice stems from a directive issued by the Federal Employment Agency (Chapter 6.1), according to which a household unit should be assumed in such cases. However, the Federal Social Court also declared a reduction of standard benefits inadmissible in comparable cases in a ruling dated April 16, 2013 (B 14 AS 71/12 R). The Federal Government has now reaffirmed this position and provided clarity.
Social law – The rejection of an appeal against the denial of leave to appeal does not necessarily lead to the inadmissibility of the constitutional complaint
Anyone claiming that their fundamental rights or rights enshrined in Articles 20(4), 33, 38, 101, 103, and 104 of the Basic Law (GG) have been violated by public authorities may file a constitutional complaint with the Federal Constitutional Court (§ 90 para. 1 BVerfGG). If legal recourse is available against the alleged violation, the constitutional complaint may only be filed after all other legal remedies have been exhausted (§ 90 para. 2 sentence 1 BVerfGG). A constitutional complaint is therefore generally inadmissible if a legal remedy—in this case, an appeal against the denial of leave to appeal to the Federal Social Court (§ 160a SGG) in a dispute concerning accident insurance law—which could have remedied the alleged violations of fundamental rights, is unsuccessful for procedural reasons. Even if the rejection of an appeal against the refusal of leave to appeal is not in every case sufficient to presume the inadmissibility of the subsequent constitutional complaint as well, a complainant must at least essentially communicate his arguments from the appeal against the refusal of leave to appeal in the constitutional complaint, so that it becomes comprehensible for the Federal Constitutional Court whether the appeal against the refusal of leave to appeal was manifestly inadmissible and whether the complainant at least substantively presented the constitutional issue to the appellate court (Federal Constitutional Court, 23 December 2016, Case No. 1 BvR 1723/14)
(01.03.2017 – Your contact person: Lawyer & Specialist Lawyer for Social Law Mathias Klose): www.ra-klose.com
Author of the legal news ticker: Detlef Brock, editor of Tacheles
Source: Tacheles legal case law ticker, www.tacheles-sozialhilfe.de
