DECISION
In the appeal proceedings
xxx,
Applicant and complainant,
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55, 37073 Göttingen,
against
Offenbach District, represented by the District Committee – Department of Local Government Supervision
and Law –, Werner-Hilpert-Straße 1, 63128 Dietzenbach,
Respondent and respondent in the appeal,
The 4th Senate of the Hessian State Social Court in Darmstadt decided on April 13, 2021, through the presiding judge of the State Social Court xxx, the judge of the State Social Court xxx and the judge of the State Social Court xxx:
Upon the applicant's appeal, the decision of the Darmstadt Social Court of January 7, 2021, is set aside, and the respondent is ordered by way of preliminary injunction to provisionally pay or provide the following additional benefits:
For October 2020: €35;
For November 2020: €52.98;
For December 2020: €63.55;
For January through May 2021, monthly:
€64.17.
Furthermore, the application and the appeal are rejected.
The respondent shall reimburse the applicant for the reasonable extrajudicial costs of both instances.
REASONS
I.
The applicant is seeking preliminary legal protection for the provisional granting of higher benefits under the Asylum Seekers' Benefits Act (AsylbLG).
The applicant, born on [date redacted] 1968, is an Afghan national and first entered the Federal Republic of Germany on May 11, 2019. He submitted an asylum application to the Gießen branch of the Federal Office for Migration and Refugees on August 7, 2019, which is still pending. Since March 2020 – following his assignment by the Darmstadt Regional Council with an assignment notice dated March 2, 2020 – he has been receiving benefits under the Asylum Seekers' Benefits Act (AsylbLG) from the respondent. The applicant is housed in communal accommodation provided by the respondent. He holds a temporary residence permit.
According to his uncontested statements, the applicant suffers from Parkinson's disease and lives in the communal accommodation at xxx, xxx, keeping his distance from the other, much younger, residents. He lives in a single room with his own kitchenette. He shares only the bathroom with a Turkish family of four with two children, who live in the room opposite. He does not share any toiletries, food, or anything else with the family.
By decision dated March 2, 2020, the respondent granted the applicant pro rata benefits in the amount of €171.29 for the month of March 2020 and €316 for the month of April 2020 (benefits pursuant to Section 3a Paragraph 1 of the Asylum Seekers' Benefits Act: €139 and benefits pursuant to Section 3a Paragraph 2 of the Asylum Seekers' Benefits Act: €177; see respondent's official file, section HLU, pp. 9 et seq.). The paragraph following the amount of the benefit granted states: "We have authorized payment of the amount for the current month. We will transfer the amounts for the following months monthly in advance to the recipients listed in the appendix, provided their personal and financial circumstances have not changed." Regarding the granting of benefits beyond April 2020, the notification dated March 2, 2020, states under "General Information": "The approved benefit(s) will initially be granted for only one month and subject to the condition that the circumstances stated by the recipient and on which the approval was based do not change. If the benefit is granted for a limited period, payment will end at the specified date. If no change occurs, the previously approved benefit(s) will continue to be paid – without application – by way of tacit monthly renewal, in the amount specified in this notification. However, if changes in circumstances occur and this results in a payment that is not legally justified, this payment must be refunded to the extent that the recipient is responsible for it."
For the period from May 2020 onwards, the benefits were paid out in accordance with the calculation for April 2020 in the notification dated March 2, 2020.
On October 1, 2020, the applicant, through his authorized representative, filed an objection with the respondent on September 28, 2020, against the granting of benefits "for the period from May 1, 2020 onwards." No decision has yet been made regarding this objection.
On October 7, 2020, the applicant's authorized representative, by further written submission dated September 28, 2020, requested a review of the benefit award for the period from March 1, 2020 to April 30, 2020 pursuant to Section 44 of the Tenth Book of the Social Code – Social Administrative Procedure and Social Data Protection – (SGB X).
By decision dated January 14, 2021 (page 2/68 of the administrative file), the respondent amended the benefit approvals for November, December 2020, and January 2021, such that benefits pursuant to Section 2 of the Asylum Seekers' Benefits Act (AsylbLG), standard benefit level 2, were granted from November 12, 2020. The statutory increase in the standard benefit rate was taken into account from January 1, 2021. The calculation sheet also shows the deductions "less total lump sum" of €31.12 or €31.60 and "less reduction: other reasons (note in the notes section!)" of €24.44. The decision contains the same wording under "General Information" as the decision of March 2, 2020. The applicant has filed an objection against this, but argued that the decision had become the subject of the objection procedure pursuant to Section 86 of the Social Courts Act (SGG).
The applicant already filed an application for preliminary legal protection with the Darmstadt Social Court on October 1, 2020.
He argued before the Social Court that his classification in standard benefit level 2, which otherwise only applies to partners in a shared household, was unconstitutional due to his accommodation in communal housing. He substantiated this argument in detail, evaluating the jurisprudence of the Federal Constitutional Court, recent decisions of the courts of first and second instance, and legal literature on the relevant issue (pp. 3 to 17 of the file). He claimed he was now entitled to benefits analogous to those under Book Twelve of the German Social Code – Social Assistance – (SGB XII).
The respondent referred to the decisions of the Higher Social Court of Baden-Württemberg of 13 February 2020 – L 7 AY 4273/19 ER-B – and the Higher Social Court of Berlin-Brandenburg of 2 March 2020 – L 15 AY 2/20 B ER – and adopted the content of those decisions as his own.
The Social Court rejected the application by decision of January 7, 2021. The admissible application was deemed unfounded. The applicant had failed to substantiate a claim for an injunction. The applicant's claim for higher benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from the date of application to the court was precluded by the finality of the respondent's decision of March 2, 2020, and the resulting binding effect on the parties involved. The respondent's decision of March 2, 2020, constituted a continuing administrative act with effect beyond the expressly named months of March and April 2020. This conclusion was reached upon an objective review of the decision of March 2, 2020, from the perspective of a reasonable recipient of this declaration of intent by the respondent. Although this administrative act initially only granted benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the months of March 2020 (€171.29) and April 2020 (€316.00), the further wording in the text of the decision regarding the period of validity ultimately indicates that the decision has no time limit beyond April 2020. Based on the chosen wording, the respondent did not limit the granting of benefits but rather made them conditional upon continued validity as long as circumstances remained unchanged. From this passage, which is part of the operative provisions of the decision, an objective recipient of this declaration of intent would understand the benefit to have a permanent effect. The permanent effect of the benefit grant is not negated by the statement or announcement in the "General Information" section that such "continued payment" will occur automatically as a "tacit monthly renewal" without requiring an application. These formulations are not suitable for relativizing the unambiguous operative clause of the decision regarding the permanent granting of benefits. The necessary connection to the operative clause of the decision is lacking, so that, from an objective standpoint, a restriction of the granting of benefits cannot be derived to the required extent. Furthermore, the heading chosen for this section of the decision already indicates to an objective recipient that it does not contain any provisions that alter the scope of the previous decision. The court assumes that the decision was served on March 2, 2020, and therefore became legally binding for the parties involved in April 2020. The finality of this decision, which includes proper instructions on legal remedies, is not affected by the objection filed by the applicant's representative, which was received by the respondent on October 1, 2020. This objection was clearly filed outside the objection period stipulated in Section 84 Paragraph 1 of the Social Court Act (SGG). In the case of the applicant, who was represented by counsel, this objection did not need to be reinterpreted as an application under Section 44 of the German Social Code, Book X (SGB X) (application for review). This is already evident from the fact that the applicant's representative explicitly submitted such an application regarding other aspects of the benefit provision based on the decision of March 2, 2020, just a few days after the objection was filed. The application for review, which was received by the respondent on October 7, 2020, also does not create a legal relationship that would be subject to a regulation under Section 86b Paragraph 2 of the German Social Court Act (SGG) in the present preliminary injunction proceedings. According to its clear wording, this application for review is limited to the months of March and April 2020. Therefore, the question of the constitutionality of the benefit calculation based on standard benefit level 2, both in the area of Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) and Section 2 of the AsylbLG, is no longer decisive in the present proceedings. The Chamber points out, however, that the applicant would likely be entitled to benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) in the interim, provided he has not inadvertently manipulated the duration of his stay. Information from the Central Register of Foreigners (see the respondent's file, section ST, page 2) indicates that the applicant's initial entry into Germany occurred on May 11, 2019. The 18-month waiting period stipulated in Section 2 Paragraph 1 Sentence 1 of the AsylbLG is therefore likely to have expired in November 2020, in the Chamber's opinion. According to the Social Court's instructions on legal remedies, an appeal under Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG) is inadmissible.
The applicant's appeal against this decision to the Hessian State Social Court was received by the Darmstadt Social Court on January 17, 2021.
The applicant argues that the appeal is admissible. A period of twelve months should be assumed (reference to the decision of the Lower Saxony-Bremen Higher Social Court of September 12, 2019 – L 8 AY 12/19 B ER). Despite the partial remedy, benefits amounting to €1,117.34 remain in dispute for the period from October 1, 2020, to September 30, 2021 (see list on page 96 of the file), as not only the standard benefit rate (level 1) but also a deducted flat-rate allowance is contested. The benefit award from May 1, 2020, was still subject to appeal. According to its unambiguous wording, the decision of March 2, 2020, is not a continuing administrative act. The incomprehensible "deductions" and "flat-rate allowances" in the decision of January 14, 2021, which the applicant also objects to, must be taken into account when considering the appeal.
He is by far the oldest resident in the accommodation. Consequently, his interests are not the same as those of the other residents. Since he belongs to the COVID-19 risk group solely due to his age, he avoids social contact "wherever possible." He maintains contact with two volunteer women from Dreieich. Due to the pandemic, this contact currently takes place only by telephone.
The applicant essentially requests that
the decision of the Darmstadt Social Court of January 7, 2021, be overturned and that the respondent be ordered, by way of preliminary injunction, to grant the applicant the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, pending a final and binding decision on the applicant's objection of September 28, 2020 – file number: 53377.78962,06.
The respondent requests, in essence,
that the appeal be dismissed as inadmissible.
He argues that the appeal period in the preliminary injunction proceedings should be limited to a maximum of three months. The applicant, on the other hand, refers to the appeal in the main proceedings. Since the decision of the Federal Social Court (BSG) of February 8, 2007 – B 9b AY 1/06 R – it has been the case that ongoing benefits are, in cases of doubt, discontinued by means of a continuing administrative act.
II.
The appeal is (1.) admissible and (2.) largely justified.
1. The appeal is admissible, in particular pursuant to Section 172 Paragraph 3 No. 1 in conjunction with Section 144 Paragraph 1 of the Social Court Act (SGG). According to this provision, an appeal is excluded in preliminary injunction proceedings if, in the main proceedings, leave to appeal would be required, inter alia, if the value of the subject matter of the appeal does not exceed €750 in an action concerning a monetary, service, or in-kind benefit, or an administrative act directed thereto. The value is not to be determined based on the subject matter of a main action actually pending. The starting point is the value of the subject matter on which the Social Court actually ruled. If the application in preliminary legal protection proceedings differs from the application in the main proceedings, the relevant factor, pursuant to Section 172 Paragraph 3 No. 1 of the Social Court Procedure Act (SGG), is the claim made in the preliminary legal protection proceedings and the value of the appeal therein, not that of the main proceedings (Higher Social Court of Berlin-Brandenburg, decision of May 11, 2012 – L 20 AS 647/12 B ER –, juris para. 20; Karl in: Schlegel/Voelzke, jurisPK-SGG – as of June 15, 2020 –, Section 172 para. 139 et seq.). If ongoing benefits are at issue, a distinction must be made as to whether – for example, in the case of benefits being granted insufficiently in the applicant's opinion – the period in question is a closed one, where the end of the benefit period constitutes a break, or whether benefits are being sought for the future. In the case of an open-ended application, the grievance is not limited to the denial of benefits claimed up to the date of the first-instance decision. The applicant is also aggrieved by the denial of benefits for the future beyond that date. In further detailing its established case law (most recently Senate decision of October 6, 2020 – L 4 AY 22/20 B ER –, juris para. 15), the Senate applies the following principles to cases of monthly benefit approvals challenged by an objection, where the subsequent months become the subject of the objection proceedings pursuant to Section 86 of the Social Court Act (Senate judgment of July 22, 2020 – L 4 AY 8/17 –, juris para. 36; Federal Social Court judgment of June 17, 2008 – B 8 AY 11/07 R –, juris, para. 10; see also Federal Social Court judgment of April 14, 2011 – B 8 SO 12/09 R –, SozR 4-3500 § 82 No. 7; most recently Federal Social Court judgment of December 9, 2016 – B 8 SO 14/15 R –, juris para. 11), then from a 12-month period if no decision has yet been made on the objection at the time the appeal is filed (see also Lower Saxony-Bremen Higher Social Court, decision of July 9, 2020 – L 8 AY 52/20 B ER –, juris para. 15 with further references). Such a general approach appears appropriate, because a concrete prognosis of the maximum period the applicant could still claim for the period after the initiation of the appeal proceedings leads to highly arbitrary results. Since benefits under the Asylum Seekers' Benefits Act (AsylbLG) are not pension-equivalent long-term benefits, the Senate applies the assessment of Section 144 Paragraph 1 Sentence 2 of the Social Court Act (SGG) as a limitation, at least for the preliminary injunction proceedings.
Contrary to the opinion of the Social Court, the decision of March 2, 2020, is not a continuing administrative act that could render an objection filed in May 2020 time-barred. Rather, this decision only granted benefits for March and April 2020; in the following months, benefits were implicitly approved on a monthly basis through payment.
When distinguishing between monthly grants and continuing administrative acts extending beyond the month, the Senate proceeds from the following principles of interpretation: Whether and to what extent a benefit grant constitutes a continuing administrative act must be determined by interpretation based on the objective recipient's perspective (cf. regarding the objective recipient's perspective BSG, judgment of May 27, 2014 – B 8 SO 26/12 R –, juris para. 16). According to the jurisprudence of the Federal Social Court, which this Senate follows, the objective scope of a decision under the Asylum Seekers' Benefits Act (AsylbLG) can be limited to one month if the benefit is granted, for example, "from July 1, 2003," but the decision is limited to that month and includes the following addendum: "If benefits for future periods are granted by transfer due to unchanged circumstances, the calculation and determination of the individual claims correspond to those of the present decision" (Federal Social Court, Judgment of June 17, 2008 – B 8/9b AY 1/07 R, para. 11; which partially overturned the legal opinion from Federal Social Court, Judgment of February 8, 2007 – B 9b AY 1/06 R). The grant for subsequent months is then not issued in writing on a monthly basis, but rather implicitly by transfer in accordance with Section 33 Paragraph 2 of the German Social Code, Book X (SGB X) (Federal Social Court, ibid.). The deciding Senate has also already ruled that a formulation such as "The determined assistance is generally granted for one month. Payments following this grant constitute a new grant" indicates a monthly grant (decision of September 21, 2018 – L 4 AY 10/18 B ER). In contrast, the designation of a decision as an "amendment decision" is a circumstance that may indicate a continuing administrative act (Senate decisions of June 18, 2019 – L 4 SO 107/19 B ER –, of March 23, 2017 – L 4 SO 36/17 B ER and L 4 SO 37/17 B ER –). The phrase "until further notice" in the operative part without any further limiting formulation also indicates a continuing administrative act, even if the operative part or the attachments otherwise only mention a calculation or a figure for a specific benefit month.
Measured against this standard, the decision of March 2, 2020, is not a future-oriented, ongoing administrative act. The two months in question are clearly specified in the operative part. Furthermore, the wording highlighted by the Social Court, in conjunction with the "General Information," clearly indicates that payments will be made even without a written decision if circumstances remain unchanged, but these payments will only be made with implied monthly approvals: "If no change occurs, the previously approved benefit(s) will continue to be paid – without application – on the basis of a tacit monthly renewal, in the amount specified in this decision." The remaining wording refers only to the modalities of the continued payment, not to the renewal of the benefit. Regarding the respondent's argument, it should be noted that there is no presumption of interpretation as an ongoing administrative act. Insofar as the judgment of the Federal Social Court of February 8, 2007 – B 9b AY 1/06 R – cited by the respondent could be interpreted in this way, the 8th Senate of the Federal Social Court has since provided further clarifications in a series of decisions (see above), beginning with BSG, judgment of June 17, 2008 – B 8/9b AY 1/07 R, para. 11. The statutory assessment, inter alia, from Section 14 of the Asylum Seekers' Benefits Act (AsylbLG), that decisions regarding benefits under the AsylbLG are normally issued as permanent administrative acts, is therefore a factor influencing the objective understanding of the recipient, but this does not generally constitute a presumption of interpretation.
Based on this interpretation, the core issue of the appeal is the partial denial of benefits from May 2021 onwards, which was challenged by an objection that has not yet been decided. The subsequent periods have become the subject of these objection proceedings by analogy to Section 86 of the Social Court Act (SGG). The decision of January 14, 2021, does not mark a turning point. While, under circumstances not described here, a change in the granting practice from monthly approvals to longer approval periods can constitute a significant turning point for the appeal, particularly in connection with the decision on the objection concerning the preceding periods, in this case, the objection has not yet been decided. The decision of January 14, 2021, also fails to explain its relationship to the ongoing objection proceedings. It is limited to three changes to the (previously monthly) approvals for the months of November, December 2020, and January 2021. According to the "General Information," approvals from February 2021 onwards will again be granted on a monthly basis. The mere reference to a legally erroneous "amendment to the decision of March 2, 2020" by the Social Court and its designation as an "amended decision" is not sufficient. This decision, too, has become the subject of the objection proceedings against the benefits granted since May 2020, analogously to Section 86 of the Social Court Act (SGG).
Therefore, the amount of the complaint is to be calculated as follows:
| Month | approved | applied for | difference |
| October 2020 | 316 € (139 € + 177€) | 351 € (153 € +198€) | 35 € |
| November 1st – 11th, 2020 | 115,97 € | 128,70 € | 12,73 € |
| November 12–30, 2020 | 211,18 € | 273,60 € | 62,42 € (Total Nov.: €75.15) |
| December 2020 | 333,44 € | 432 € | 98,56 € |
| from January 2021 | 344,96 € | 446 € | 101,04 € |
| Total up to and including Sept. 2021 (12 months) | 1.118,07 € |
A legal relationship exists that is subject to regulatory proceedings, since the objection procedure against the implied grant of benefits for May 2020 has not yet been concluded and all grants for subsequent periods have so far been the subject of objection proceedings. The objection of October 1, 2020, was not time-barred due to the lack of information regarding legal remedies concerning the administrative act issued only impliedly.
2. The application is largely justified under the standard of Section 86b Paragraph 2 of the Social Court Act (SGG). In particular, there is a sufficient prospect that the applicant will successfully enforce his claim in the main proceedings; a claim for an injunction (2.a)) and a ground for an injunction (2.b)) have been substantiated.
Pursuant to Section 86b Paragraph 2 Sentences 1 and 2 of the Social Court Procedure Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the realization of a right of the applicant. Preliminary injunctions are also permissible to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages. A prerequisite for issuing a preliminary injunction is therefore that the applicant has a substantive legal claim in the main proceedings (claim for an injunction) and that it is unreasonable to expect them to await the decision in the main proceedings (ground for an injunction). Pursuant to Section 86b Paragraph 2 Sentence 4 of the SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the claim for an injunction and the ground for the injunction must be substantiated.
These requirements must be specified in light of the guarantee of effective legal protection under Article 19 Paragraph 4 of the Basic Law (GG) (see, for example, Federal Constitutional Court, Decision of August 6, 2014 – 1 BvR 1453/12 –, juris, para. 10 with further references). The more serious the threatened violation of fundamental rights and the higher its probability of occurrence, the more intensive the factual and legal analysis of the matter must be, even in preliminary injunction proceedings. If a clarification of the factual and legal situation corresponding to the threatened violation of fundamental rights is not possible in expedited proceedings – for example, because it would require further factual investigations that cannot be carried out in the short time available – it is not constitutionally objectionable if the decision on granting preliminary injunction is then based on a balancing of interests. However, if the preliminary injunction proceedings completely assume the significance of the main proceedings and there is a risk of the parties' fundamental rights being permanently prevented from being exercised, the courts must, when setting the requirements for establishing prima facie evidence to justify benefits for subsistence in preliminary injunction proceedings, take into account the significance of the fundamental right under Article 1 Paragraph 1 of the Basic Law in conjunction with Article 20 Paragraph 1 of the Basic Law. The requirements for establishing prima facie evidence must be oriented towards the legal protection objective pursued by the respective legal claim.
a) Measured against this standard, the applicant has credibly demonstrated the prerequisites for an entitlement to benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for the period from October 1, 2020, to November 11, 2020, and under Section 2 of the AsylbLG for the subsequent period from November 12, 2020, onwards, for the granting of benefits to which single adults are entitled without differentiation based on whether they live in a dwelling or communal accommodation. A constitutionally compliant interpretation of Sections 3 and 3a of the AsylbLG and Section 2 of the AsylbLG is required (2.a)aa)(1)) and is also sufficiently likely to be possible (2.a)aa)(2)). Furthermore, the primacy of application of Articles 1 and 20 of the Charter of Fundamental Rights of the European Union (CFR) in conjunction with Article 17(2) and (5) of Directive 2013/33/EU of the European Parliament and of the Council of 26 June 2013 laying down standards for the reception of applicants for international protection (Reception Directive) leads to the application of standard benefit level 1 (see 2.a)bb)). The Senate is aware that both the possibility of a constitutionally compliant interpretation and the scope of the primacy of application of EU fundamental rights in conjunction with the legislative mandate of Article 17(2) and (5) of the Reception Directive involve difficult and contentious legal issues, but considers, in sum, the two independent legal principles in favor of applying standard benefit level 1 to have a sufficient prospect of success.
According to Section 3a Paragraph 1 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG), the necessary personal needs, if fully covered by cash benefits, amount to €162 per month for adult benefit recipients who live in an apartment as defined in Section 8 Paragraph 1 Sentence 2 of the Standard Needs Assessment Act (RBEG) and for whom neither Number 2 Letter a nor Number 3 Letter a applies, as well as for young benefit recipients who do not live in an apartment with at least one parent (according to the announcement of October 1, 2019, on the amount of the benefit rates pursuant to Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act).<BGBl. I, 1429> for the period from 1 January 2020 to 31 December 2020: €153); according to § 3a para. 1 sentence 1 no. 2 b) AsylbLG, the necessary personal needs for adult benefit recipients amount to €146 (until 31 December 2020: €139) if they do not live in an apartment because they are accommodated in a reception facility within the meaning of § 44 paragraph 1 of the Asylum Act or in communal accommodation within the meaning of § 53 paragraph 1 of the Asylum Act or not only temporarily in comparable other accommodation.
If, according to Section 3a Paragraph 2 Sentence 1 No. 1 AsylbLG, the necessary needs according to Section 3 Paragraph 1 Sentence 1, with the exception of the needs for accommodation, heating, household goods, apartment maintenance and household energy, are fully covered by cash benefits, this amounts to €202 per month for adult beneficiaries who live in an apartment within the meaning of Section 8 Paragraph 1 Sentence 2 of the Standard Needs Assessment Act and for whom neither Number 2 Letter a nor Number 3 Letter a applies (until December 31, 2020: €198); According to Section 3a Paragraph 2 Sentence 1 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), the necessary allowance for adult beneficiaries is €182 (until December 31, 2020: €174) if they do not live in an apartment because they are housed in a reception facility within the meaning of Section 44 Paragraph 1 of the Asylum Act or in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act or not only temporarily in comparable other accommodation.
Notwithstanding Sections 3 and 4 as well as 6 to 7, Section 2 Paragraph 1 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG) stipulates that Book Twelve of the Social Code (SGB XII) and Part 2 of Book Nine of the Social Code apply accordingly to those beneficiaries who have resided in Germany for 18 months without significant interruption and have not abusively influenced the duration of their stay. Section 28 of Book XII of the Social Code (SGB XII) in conjunction with the Ordinance on the Adjustment of Benefits (RBEG) and Sections 28a and 40 of Book XII of the Social Code (SGB XII) applies accordingly to beneficiaries under Sentence 1, pursuant to Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG, with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or in a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard allowance in the amount of standard allowance level 2 is granted for each adult.
The opening of the personal scope of application of the Asylum Seekers' Benefits Act (AsylbLG) and the entitlement to benefits in principle pursuant to Sections 3, 3a AsylbLG or Section 2 AsylbLG are undisputed between the parties and are also, in the opinion of the Senate, otherwise beyond doubt.
Based on a summary review, the respondent's reliance on Section 3a Paragraph 1 Sentence 1 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), Section 3a Paragraph 2 Sentence 1 No. 2 b) of the AsylbLG, and Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG is unjustified with regard to the amount of the benefit. These exceptions to the principle that single persons receive benefits according to the standard benefit level 1 or the comparable level of Section 3a of the AsylbLG are either subject to a constitutionally compliant interpretation and would then, according to the interpretation, not be fulfilled, or are inapplicable due to the primacy of EU law.
(aa)(1) The Senate has serious doubts as to whether Section 3a paragraph 1 sentence 1 no. 2 b) AsylbLG, Section 3a paragraph 2 sentence 1 no. 2 b) AsylbLG and Section 2 paragraph 1 sentence 4 no. 1 AsylbLG would be constitutional if interpreted literally.
The Basic Law guarantees, through Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1, a fundamental right to a dignified minimum standard of living. Article 1 Paragraph 1 establishes this right; the social welfare state principle of Article 20 Paragraph 1 mandates the legislature to actually secure a dignified minimum standard of living (BVerfGE 125, 175 <222>; 132, 134 <159>; 137, 34 <72>; BVerfGE 142, 353, <369 f.>; Federal Constitutional Court, Judgment of November 5, 2019 – 1 BvL 7/16 –, para. 118). It would contradict the non-relativizable principle of inviolability if only a minimum below what the legislature has already defined as the minimum were guaranteed. In particular, the guarantee under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law cannot be divided into a "core area" of physical existence and a "peripheral area" of social existence. The legislature also cannot refer to the sums allocated for socio-cultural needs in the lump-sum calculation of basic income support, either for internal compensation or to justify a reduction in benefits, because physical and socio-cultural existence are uniformly protected by Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (Federal Constitutional Court, Judgment of November 5, 2019 – 1 BvL 7/16 –, para. 119, juris).
This does not preclude all differentiation. If different methods are applied with regard to specific groups of people, this must be objectively justified (cf. BVerfGE 125, 175 <225>). If the legislature intends to take into account the specific characteristics of certain groups of people when determining the minimum standard of living that ensures human dignity, differentiation is possible provided that their need for essential services differs significantly from that of other people in need and this can be logically demonstrated in a transparent procedure based on the actual needs of that specific group (BVerfGE 132, 134 <164 para. 73>).
For the standards under review here, which stipulate a reduced standard benefit rate for single individuals in communal accommodation, no such empirical evidence in the form of a transparently established proof of a significant deviation in needs is apparent. The explanatory memorandum to the law merely states (Bundestag printed matter 19/10052, p. 24): “The concept of savings through shared management ‘from one pot’ expressed in benefit level 2 for couples (…) can be applied to benefit recipients who share certain facilities (kitchen, sanitary facilities, common rooms, etc.) in communal accommodation. Here, too, the shared use of living space enables synergy effects, since certain household-related expenses are not borne by each benefit recipient individually, but are divided among the residents or borne jointly by them. This applies, for example, to personal needs for media access, as landline or internet connections are regularly provided for communal use in communal accommodation.” Further savings result, under the aforementioned conditions, from the possibility of shared use or exchange of leisure, entertainment, and cultural needs (Section 9 of the 2013 Income and Expenditure Survey). Accommodation in communal housing also leads to savings in the necessary food requirements (Section 1 of the 2013 Income and Expenditure Survey), for example, by purchasing food or at least basic kitchen supplies in larger quantities and using them together in communal kitchens. The resulting savings for adult residents of communal housing are comparable to those achieved in two-person households. Reducing standard benefits due to shared household management can be justified as a means-tested approach to social benefits, also within the framework of the social welfare state (Federal Constitutional Court, Decision of the First Senate of July 27, 2016 – 1 BvR 371/11 – juris, para. 53). When regulating the design of subsistence benefits, the legislature has discretion to make a standardized assessment of the circumstances, based on actual needs, to determine the necessary subsistence benefits, provided this assessment does not appear unreasonable. The Federal Government made this assessment based on the assumption that it is possible and reasonable for residents of communal accommodation to achieve the described savings effects, comparable to those of couples, through shared financial resources. Those entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation can be expected to share resources beyond simply splitting accommodation-related expenses. Regardless of their origin, these benefit recipients are in the same life situation during the asylum procedure and, in effect, form a community of shared fate. (...) In this unique temporal and spatial situation, they have an obligation to make all reasonable efforts to get along with one another in the communal accommodation. Furthermore, many benefit recipients are housed as families in the communal accommodation, meaning that the savings effects identified for couples already apply to them. This is further supported by the requirement to consider ethnic group affiliation in collective accommodations in order to avoid conflicts. If conflicts arise that prevent individuals housed in a collective accommodation from reasonably managing their finances together, the accommodation allows for solutions within the building or in conjunction with another collective accommodation, without jeopardizing the fundamental possibility of cost-saving measures for all benefit recipients.
While the legislature can cite various studies suggesting savings of approximately 10 percent per person for couples living in communal accommodations (BT-Drs. 18/9984, p. 84 ff.), no such body of research exists for single individuals living in communal accommodations. The explanatory memorandum to the Act on Determining Standard Needs and Amending the Second and Twelfth Books of the Social Code (BT-Drs. 18/9984, p. 84) states: "In the absence of reliable alternative findings, the standard needs allowance for single individuals is also assigned to adults who do not live alone but for whom a reduced need can be presumed due to living with others, because the reduced need cannot be sufficiently quantified for all conceivable scenarios." The aforementioned materials relating to the Third Act Amending the Asylum Seekers' Benefits Act do not provide a better data situation. The German Caritas Association, which has operated refugee accommodations nationwide for many years, explains the relevant legislative amendment in a comprehensible manner in its statement (German Caritas Association, Statement on the Draft Bill for a Third Act Amending the Asylum Seekers' Benefits Act, March 29, 2019, p. 6): "The fluctuation of residents in refugee accommodations alone usually prevents the development of such close relationships. The fact that residents regularly come from different regions and cultures, which can lead to communication difficulties and sometimes even conflicts, is a further obstacle to shared resources. In addition, according to the explanatory memorandum to the law, the expected savings are also supposed to result from 'shared living space and the joint purchase and use of household goods' (...). However, services for this are not included in needs level 1, as they are provided separately (...). Therefore, no savings can be achieved for those affected." The proposed reduction in benefits is also unacceptable in light of necessary personal needs. Because benefits are provided in kind, this amount is often the only way for individuals to make their own decisions about a part of their lives and to experience autonomy. The inclusion of emergency shelters, which regularly provide makeshift accommodation without any synergy effect for the residents and which, according to all experience, are unsuitable for permanent or long-term accommodation, is also incomprehensible (see also Social Court of Hanover, decision of December 20, 2019 – S 53 AY 107/19 –, para. 10, juris; Higher Social Court of Mecklenburg-Western Pomerania, decision of June 10, 2020 – L 9 AY 22/19 B ER –, juris, paras. 17 ff.). The assumption that in the event of conflicts, collective accommodation would allow for solutions within the building or jointly with another collective accommodation, so that the fundamental possibility of cost-saving measures for all benefit recipients is not called into question (Bundestag printed matter 19/10052, p. 24), is unsubstantiated. A change in the accommodation situation can generally only be expected when there are concrete problems. Violence occurs (cf. Leopold, in: Grube/Wahrendorf/Flint, SGB XII, 7th ed. 2020, AsylbLG § 3 Rn. 27).
The decision of the Federal Constitutional Court cited by the legislature (decision of July 27, 2016 – 1 BvR 371/11 –, BVerfGE 142, 353) does not support the assumptions and typifications underlying the regulation. While it is not objectionable under this ruling to reduce recognized social benefits, based on the needs of those affected, by a flat-rate reduction to ensure a dignified existence, taking into account savings typical of family life (see BVerfGE 125, 175 <230 f.>; BVerfGE 137, 34 <83>; Federal Constitutional Court, decision of July 27, 2016 – 1 BvR 371/11 –, BVerfGE 142, 353, cited according to juris para. 52). It is sufficiently plausible that family members living together in a household generally manage their finances "from a single source" (Federal Constitutional Court, decision of July 27, 2016 – 1 BvR 371/11 –, BVerfGE 142, 353, cited according to juris para. 53). This means that two people living in such a close relationship have a minimum financial need that is less than twice that of a person managing their finances alone (cf. BVerfGE 75, 382 <394>; 87, 234 <256>). Therefore, the family's shared life and finances can certainly serve as a basis for economic legal consequences, provided that this does not result in any disadvantage to marriage or family that would be incompatible with Article 6 Paragraph 1 of the Basic Law.
However, by referring to the aforementioned decision, the legislature oversteps its discretion regarding typifying assumptions without empirical evidence. The Federal Constitutional Court deemed the lower standard benefit for young adults living with their parents constitutional only under strict conditions, based solely on typicality and plausibility: The Federal Constitutional Court relies heavily on the actual existence of a close (familial) relationship, which is typically lacking in the present situation. Furthermore, the court found the age limit of 25 to be a statistically sufficiently sound basis: “With the end of the 25th year of life, the legislator is guided by a frequent, or at least not atypical, point in time for achieving economic independence, as well as by the empirically proven longer period in which children remain in their parents' home (cf. Federal Statistical Office, Data Report 2006, excerpt from Part II ‘Living Situation of Adolescents and Young Adults’, pp. 545 ff. and ‘Women and Men in Different Phases of Life’, 2010, p. 10)” (Federal Constitutional Court, loc. cit., para. 59). Finally, it was decisive that the legal provision under review allowed for a response to a shortfall in needs: “The crucial point is that a shortfall is actually prevented. This is the case here because, if the father refuses to provide for the child’s basic needs, the child is either not included in the household and consequently no income or assets are taken into account, or a move out of the household is not subject to benefit entitlements.” adverse consequences are possible.” (Federal Constitutional Court, loc. cit., para. 64). This assumption also shows that the legislature is mistaken in assuming that the decision of July 27, 2016, establishes a standard that attests to the constitutionality of the regulations at issue here (see, among others, Social Court of Hanover, decision of December 20, 2019 – S 53 AY 107/19 –, juris para. 21).
Furthermore, the exemplary references to savings in sections 1, 8, and 9 of the 2013 Income and Expenditure Survey (EVS) are not inherently plausible. The Senate is also convinced that sharing expenses for food, leisure, and culture without close relationships does not reflect reality. When potential savings in telecommunications are pointed out, in practice, asylum seekers are assumed to have a higher, not a reduced, need for telecommunications (see also: Anja Lederer, Expert Opinion on the Entitlement to Free Internet Access in Refugee Accommodations, April 27, 2020, p. 4). Due to their precarious residency status, asylum seekers are often denied access to longer-term, and therefore more affordable, telecommunications contracts, or are limited to expensive prepaid data plans. Group plans are generally only available to families and, moreover, typically have long terms, making them unsuitable for individuals in communal accommodations with high turnover. Even if Wi-Fi access is provided as a benefit in kind in some accommodations, this alone does not cover all items of the standard needs-based consumer spending for communication (Section 8) (Social Court Landshut, Judgment of December 16, 2016 – S 11 AY 74/16 –, juris, paras. 25 f., 42). In particular, this does not change the high costs for a mobile phone including a contract or prepaid plan (Statement of the German Bar Association, Bundestag Committee Document 18(11)849, p. 87). Many of the consumer goods and leisure expenses listed in Section 9 are inherently unsuitable for shared use. Downloads and apps cannot be exchanged and shared, and the same applies to consumables such as stationery and art supplies. Attending leisure and sporting events together also offers no potential for savings, as group discounts only apply to very large groups.
Should the statements in the explanatory memorandum regarding the obligation to manage one's finances jointly be interpreted as meaning that, in the event of a shortfall in income, unrelated individuals should be required to form "economic collectives," this is already unconvincing by the aforementioned standard. It should also be noted that, despite corresponding political discussions, the legislature has thus far rightly refrained from attempting to obligate shared households within the basic income support system to manage their finances jointly. The standard benefit rate of 1 continues to apply even when several benefit recipients live in one apartment (multi-person households), unless they are partners (see BT-Drs. 19/10052, p. 23). Against this background, the differentiation between Section 3a Paragraph 1 Sentence 1 No. 2 b) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 b) AsylbLG and Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG proves to be arbitrary.
Furthermore, it is not possible for an individual to fulfill this so-called "obligation" on their own. Rather, they are dependent on the cooperation of the other people living in the communal accommodation to actually achieve the cost savings, without having a legal right to demand such cooperation from them. In this respect, too, there is a difference compared to people living in a couple. The latter at least have the option of leaving the communal accommodation and thereby triggering the application of standard benefit level 1 (Social Court Landshut, Judgment of October 14, 2020 – S 11 AY 39/20 – , juris para. 45). According to Section 53 of the Asylum Act, residents of communal accommodation are generally obligated to remain in the communal accommodation after leaving the reception facility.
The two decisions cited by the respondent (LSG Baden-Württemberg, decision of February 13, 2020 – L 7 AY 4273/19 ER-B – and LSG Berlin-Brandenburg, decision of March 2, 2020 – L 15 AY 2/20 B ER –) are argumentatively unproductive. Both decisions fail to address the unconstitutionality of the provisions, but merely refer to the courts' obligation to adhere to the law and the Federal Constitutional Court's monopoly on declaring legal norms unconstitutional.
In summary, it must be stated that a literal interpretation would mean the legislator, without any objective justification, would be breaking its own principle established with the RBEG, according to which "the redefinition of the standard benefit levels for adults (...) is based on the simple distinction of whether adults live alone or in a multi-person constellation in an apartment and, in the case of a multi-person constellation, whether they live together as partners." This is because "in fact, according to the legislator's intent, it should depend solely on the actual and verifiable financial participation in running the household" (BT-Drs. 18/9984, p. 84).
(2) If, for the purposes of further review, the Senate assumes that a literal interpretation of the aforementioned provisions is unconstitutional, it does not appear impossible that the aforementioned regulations are amenable to a constitutionally compliant interpretation such that, by way of teleological reduction (equivalent result: an unwritten element of the offense), they do not apply to living situations in which the persons concerned do not actually share a household with at least one other person (see Higher Social Court of Mecklenburg-Western Pomerania, decision of June 10, 2020 – L 9 AY 22/19 B ER – juris para. 19; Social Court of Berlin, decision of May 19, 2020 – S 90 AY 57/20 ER – juris paras. 28 ff. – at least during the COVID-19 pandemic; Social Court of Bremen, decision of July 3, 2020 – S 39 AY 55/20 ER –, juris; Social Court of Landshut, judgment of October 14, 2020). 2020 – S 11 AY 39/20 –, juris; Social Court Marburg, decision of August 28, 2020 – S 9 AY 20/20 ER – juris para. 58; Social Court Munich, decision of February 10, 2020 – S 42 AY 82/19 ER – juris paras. 56 et seq.; see also Frerichs in jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG para. 44; in effect also (inter alia by way of balancing of interests): Saxony Higher Social Court, decision of March 23, 2020 – L 8 AY 4/20 B ER – juris para. 38; Social Court Frankfurt am Main, decision of January 14, 2020 – S 30 AY 26/19 ER –, juris; Social Court Hanover, decision of December 20, 2019 – S 53 AY 107/19 –, juris; Social Court Kassel, decision of July 13, 2020 – S 12 AY 20/20 ER). This corresponds to an analogy according to which Section 3a Paragraph 1 Sentence 1 No. 2 a) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 a) AsylbLG apply to housing situations in which the persons concerned do not actually live together with at least one other person or the exception provision of Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG does not apply by way of teleological reduction, so that Section 2 Paragraph 1 Sentence 1 and Paragraph 2 AsylbLG are applicable. In this respect, it would be necessary to examine on a case-by-case basis whether there is an "actual and verifiable financial participation in the (joint) management of the household" within the meaning of the concept of the RBEG (Frerichs, in: jurisPK-SGB XII, 3rd ed. 2020, § 3a AsylbLG Rn. 44), i.e., whether the benefit recipient lives and manages their household with others (e.g., joint shopping and meal preparation) and whether this results in lower needs, for example, for food, but also for leisure, entertainment, and culture. Any doubts would be resolved against the benefit provider under the AsylbLG (the party bearing the objective burden of proof).
The limits of constitutionally compliant interpretation arise from recognized methods of interpretation. An understanding of a legal norm that contradicts the clearly expressed will of the legislature cannot be justified even by means of constitutionally compliant interpretation (BVerfGE 130, 372 <397 ff.> with further references).
The purpose of Section 3a Paragraph 1 Sentence 1 Number 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), Section 3a Paragraph 2 Sentence 1 Number 2 b) of the AsylbLG, and Section 2 Paragraph 1 Sentence 4 Number 1 of the AsylbLG is precisely to include any financial advantages enjoyed by cohabiting persons. This purpose is achieved through teleological reduction or an unwritten element of the offense that focuses on actual joint economic activity. Such a constitutionally compliant interpretation helps to avoid unconstitutional hardships in cases where those affected do not actually derive any economic advantages from cohabitation. Even after a constitutionally compliant interpretation, sufficient cases for the application of the regulation remain.
However, despite considerable doubts about the constitutionality of Section 3a Paragraph 1 Sentence 1 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG) and Section 3a Paragraph 2 Sentence 1 No. 2 b) of the AsylbLG, the 8th Senate of the Lower Saxony-Bremen State Social Court (LSG) argued convincingly against the possibility of a constitutionally compliant interpretation (decision of July 9, 2020 – L 8 AY 52/20 B ER –, juris para. 30): “The provisions – in contrast to living in an apartment – refer to communal accommodation without requiring a shared household. Even assuming such an (unwritten) element of the offense, a (direct) application of needs level 1 according to Section 3a Paragraph 1 No. 1, Paragraph 2 No. 1 of the AsylbLG would nevertheless be problematic in these cases, because the individuals concerned do not – as the provisions require – live in an apartment within the meaning of Section 8.” Paragraph 1 of the RBEG (Standard Benefits Act) does not apply, but rather – as before – in collective accommodation (here, communal accommodation). With the RBEG, which has been in effect since 2017, the legislator deliberately abandoned the link between the determination of standard benefit levels and the ability to manage one's own household, because in the past it had not been sufficiently clear that the determination of the relevant standard benefit level should depend on the burden of household-related consumer expenditures (...). According to the explanatory memorandum to Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), the legislator (...) does not necessarily require actual cost savings, but only the possibility that they can be achieved in a "reasonable" manner. The residents are thus "obligated to make all reasonable efforts to get along with one another in the collective accommodation (...)."
However, the Senate sets aside these doubts as to whether the methodological limits of constitutional interpretation are exceeded in preliminary legal protection proceedings.
Firstly, the explanatory memorandum to the draft bill refers in the relevant paragraph to the constitutional requirements set out in the Federal Constitutional Court's decision of July 27, 2016 – 1 BvR 371/11 – juris, para. 53 (Bundestag printed matter 19/10052, p. 24). In this respect, a comprehensive review raises doubts as to whether the mere emphasis on the obligation to "make every reasonable effort to get along with one another in the communal accommodation" should lead to the conclusion that the legislature intends to achieve absolute certainty, even if this results are unconstitutional. On the other hand, although not the legislature, the Federal Government, as the drafter of the considerations that argue against a constitutionally compliant interpretation, currently assumes the possibility of a constitutionally compliant interpretation (BT-Drs. 19/20984, p. 4): “Against the backdrop of the pandemic situation, which was unforeseeable during the legislative process, the Federal Government is of the opinion that, in exceptional cases, a teleological reduction of Section 3a Paragraph 1 Number 2b and Paragraph 2 Number 2b of the Asylum Seekers' Benefits Act (AsylbLG) may be considered on a transitional basis. A teleological reduction of the provision, resulting in the application of needs level 1 according to Section 3a Paragraph 1 Number 1 and Paragraph 2 Number 1 of the AsylbLG, is possible insofar as, taking into account all the circumstances of the individual case, in particular the specific spatial and organizational circumstances in the individual collective accommodations, necessary measures have been taken for reasons of infection control that significantly restrict the possibility of communal economic activity.” While this statement by the Federal Government is not a guideline for interpretation, given the numerous important voices advocating a constitutionally compliant interpretation and the administrative practices in some districts that are beginning to act in accordance with the Federal Government's position due to the COVID-19 pandemic, the Senate cannot deny sufficient prospects of success in preliminary injunction proceedings solely on the grounds of methodological concerns. Rather, it appears quite possible that the path of constitutionally compliant interpretation will develop into the prevailing legal opinion despite these methodological concerns.
The Senate merely adds that a constitutionally compliant calculation of standard needs cannot be carried out via Section 6 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG). According to the wording and systematic structure of the provision, the granting of recurring lump-sum cash benefits via this provision is excluded (see Federal Social Court, Judgment of October 25, 2018 – B 7 AY 1/18 R –, juris para. 17).
(3) The requirements of Section 3a Paragraph 1 Sentence 1 No. 2 b) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 b) AsylbLG and Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, as interpreted in conformity with the constitution, are not met (for the resulting amount of the claim, see below cc)).
According to his uncontested and comprehensible statements, the applicant lives in the communal accommodation at a distance from the other, much younger, residents. He lives in a single room with his own kitchenette. He shares only the bathroom with a Turkish family of four with two children, who live in the room opposite. He does not share any toiletries, food, or anything else with the family. Given the living situation in the communal accommodation, which is characterized by separate kitchen areas for each resident, cooking together with the neighboring family is also practically impossible.
(bb) Section 3a paragraph 1 sentence 1 no. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), Section 3a paragraph 2 sentence 1 no. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG) and Section 2 paragraph 1 sentence 4 no. 1 of the Asylum Seekers' Benefits Act (AsylbLG), upon a literal interpretation and summary examination, are incompatible with Article 1 of the Charter of Fundamental Rights of the European Union (CFR), Article 20 of the Charter of Fundamental Rights of the European Union (CFR) in conjunction with Article 17 paragraphs 2 and 5 of the Reception Directive (see bb)(1), (2) and (3)). Due to the simultaneous violation of fundamental rights of the European Union, the obligation to interpret the provisions in conformity with the directive, which is subject to the same residual doubts as interpretation in conformity with the constitution, does not apply here. Rather, the primacy of application of Articles 1 and 20 of the Charter of Fundamental Rights of the European Union leads to the non-application of the exceptions in Section 3a(1) sentence 1 no. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), Section 3a(2) sentence 1 no. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG) and Section 2(1) sentence 4 no. 1 of the Asylum Seekers' Benefits Act (AsylbLG), which are contrary to EU law, and to the application of the standard benefit levels for single persons regardless of their housing situation (see bb)(4)).
(1) The applicant falls within the personal scope of the Reception Directive pursuant to Article 3(1). The Afghan national submitted an asylum application on 7 August 2019; he is therefore a third-country national who has applied for international protection in the territory of a Member State (for the application for international protection within the meaning of Article 3(1) of the Reception Directive, see Section 13(2) of the Asylum Act); he holds a residence permit and is therefore entitled to remain in the territory as an applicant within the meaning of Article 3(1), last sentence, of the Reception Directive.
(2) Upon preliminary examination, Section 3a(1), sentence 1, no. 2(b) of the Asylum Seekers' Benefits Act (AsylbLG), Section 3a(2), sentence 1, no. 2(b) of the AsylbLG, and Section 2(1), sentence 4, no. 1 of the AsylbLG are not compatible with the level of benefits required by Article 1 of the Charter of Fundamental Rights of the European Union (CFR), Article 20 of the Charter of Fundamental Rights in conjunction with Article 17(2) and (5) of the Reception Directive. Pursuant to Article 17(2) of the Reception Directive, Member States shall ensure that the material benefits granted in the context of reception correspond to an adequate standard of living that guarantees the subsistence and the protection of the physical and mental health of applicants; Member States shall ensure that this standard of living is guaranteed in the case of persons in need of protection within the meaning of Article 21 of the Reception Directive and persons in detention. When Member States provide material assistance in the form of cash benefits or vouchers as part of the reception process, the amount of such assistance is determined in accordance with Article 17(5) of the Reception Directive, based on the level of assistance that the Member State concerned applies, in accordance with its national legislation or practice, to ensure an adequate standard of living for its own nationals. Member States may, in this respect, treat applicants less favorably than their own nationals, in particular where material assistance is provided partly in the form of benefits in kind or where the level of assistance applicable to their own nationals aims to guarantee a standard of living higher than that prescribed for applicants under this Directive (Article 17(5), second sentence, of the Reception Directive). According to Article 1 of the Charter of Fundamental Rights of the European Union (CFR), human dignity is inviolable and must be respected and protected. According to Article 20 of the CFR, all persons are equal before the law.
Article 17 of the Reception Directive grants Member States considerable discretion in shaping the regulations. Although Recital 11 states that the regulation aims to create comparable living conditions for asylum seekers in all Member States, the provision does not prescribe a uniform level of benefits across Europe. Rather, the level of benefits depends on what is considered appropriate in the respective national context (Hruschka, ZIAS 2020, 113 <117>). The decisive factor is meeting individual needs (Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, 2nd ed. 2016, Art. 17 para. 11), as also suggested by the reference to the particular vulnerability in Article 17(2), second subparagraph, of the Reception Directive and the needs-based nature of benefits under Article 17(3) of the Reception Directive. The “adequate standard of living” in Article 17(2) of the Reception Directive, as a legal concept to be interpreted autonomously within the Union, nevertheless serves to establish substantive requirements for Member States to determine the level of benefits, since the provision is closely linked to the protection of human dignity. This is demonstrated by recitals 11, 18, and 25 of the Reception Directive, which explicitly refer to a dignified standard of living that also goes beyond the mere guarantee of physical subsistence (Janda, in: Wollenschläger (ed.), European Area of Freedom of Movement, EnzEuR Vol. 10, 2nd ed. 2021, § 25 para. 57 with further references). The literature is unanimous in its view that this also includes the material minimum for social interaction and self-determination within the community (Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, 2nd ed. 2016, Art. 17 para. 12 with further references; see also Janda, in: Wollenschläger aaO, § 25 para. 57). The Court of Justice of the European Union also derives essential elements of a right to a guarantee of an adequate standard of living from the guarantee of human dignity (see also ECJ, Judgment of 12 November 2019 – Case C-233/18 – Haqbin, juris para. 46): Recital 11 states that, inter alia, minimum standards for the reception of asylum seekers should be established to enable them to live a life of dignity under normal circumstances, and it follows that the level of financial support must be sufficient for a life of dignity (ECJ, Judgment of 27 February 2014, Case C-79/13 – Saciri, juris paras. 39 et seq. on the predecessor provision). Furthermore, the general systematic context, the purpose of the Reception Directive, and the requirement under Article 1 of the Charter of Fundamental Rights of the European Union to respect and protect human dignity preclude the deprivation of an asylum seeker, even temporarily, of the protection afforded by the minimum standards laid down in that directive (ECJ, Judgment of 27 February 2014, Case C-79/13 – Saciri, para. 35; cf. Judgment of 27 September 2012 – Cimade and GISTI –, para. 56, both concerning the predecessor directive). The Senate thus sees Article 17 of the Reception Directive as a concretization of the right to a guaranteed minimum standard of living that ensures human dignity, which is rooted not only in the German Basic Law but also in EU law in the fundamental right to the protection of human dignity, namely in Article 1 of the Charter of Fundamental Rights of the European Union (for comparability: Janda, ZESAR 2014, 434 <437>). From the human dignity foundation of this right and from the general principle of equality in Article 20 of the Charter of Fundamental Rights, the principle laid down in Article 17(5) of the Reception Directive already follows under primary law: that the Member State's determination of the level of benefits to cover needs in order to guarantee an "adequate standard of living" may not deviate from the standard granted to nationals without objective justification. The “guarantee” of an adequate standard of living includes the assurance that Member States must ensure such a standard of living permanently and without interruption (ECJ, Judgment of 12 November 2019 – Case C-233/18 – Haqbin, juris para. 50 on Article 20(5) of the Reception Directive), i.e., in cases of need, benefits that comply with Article 17(5) of the Reception Directive “must” be provided without interruption (cf. ECJ, Judgment of 14 May 2020 – Cases C-924/19 PPU and C-925/19 PPU – FMS et al., juris paras. 253 et seq.; Hruschka, in: Wollenschläger (ed.), European Free Movement Area, EnzEuR Vol. 10, 2nd ed. 2021, § 25 para. 167).
Similar to the jurisprudence of the Federal Constitutional Court (judgment of 5 November 2019 – 1 BvL 7/16 –), the case law of the Court of Justice of the European Union holds that the exception to these principles, namely a partial shortfall in the adequate standard of living, is only compatible with Article 1 of the Charter of Fundamental Rights under strict conditions, namely only insofar as a shortfall is provided for under secondary legislation (e.g. the sanctions under Article 20 of the Reception Directive) and the principle of proportionality is respected (ECJ, judgment of 12 November 2019 – Case C-233/18 – Haqbin). Within the framework of the proportionality test, Article 1 of the Charter of Fundamental Rights of the European Union (CFR) marks an absolute lower limit according to the case law of the Court of Justice of the European Union (CJEU): Even when imposing a sanction, it is incompatible with Article 1 CFR if the person concerned is placed in a situation of extreme material hardship that prevents him from satisfying his most basic needs, such as finding accommodation, food, clothing and washing, and that impairs his physical or mental health or places him in a state of destitution that would be incompatible with human dignity and would also constitute a violation of Article 4 CFR (see CJEU, Judgment of 12 November 2019 – Case C-233/18 – Haqbin, para. 46). A distinction must therefore be made – in contrast to Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law – between the protection of human dignity as a substantive guideline for determining an appropriate standard of living, on the one hand, and the virtually immutable “core of human dignity,” which may not be infringed even by a sanction (discussing this distinction: Peek/Tsourdi, in: Hailbronner/Thym, EU Immigration and Asylum Law, 2nd ed. 2016, Article 17, para. 13 et seq.). However, it must not be mistakenly concluded from this that the area above this absolute lower limit is at the discretion of the national legislature, as long as the reduced standard of living is proportionate. In conjunction with the “guarantee” pursuant to Article 17(2) of the Reception Directive, the Senate concludes from this doctrine that a distinction must be made between a needs-based differentiation, which must be objectively justified in particular pursuant to Article 17(5) of the Reception Directive, and a sanction as a genuine shortfall, which is subject to a strict proportionality test and the aforementioned lower limit in accordance with Article 20 of the Reception Directive.
Since the present case does not concern a sanction, justification for the lower benefit level can only arise from the requirements of Article 17(2) and (5) of the Reception Directive in conjunction with Articles 1 and 20 of the Charter of Fundamental Rights of the European Union (CFR) regarding a general and abstract differentiation of benefits. Explicitly mentioned grounds for justification in Article 17(5) of the Reception Directive for a lower benefit rate compared to the benefit system for nationals are the provision of benefits in kind and an exceedance of the minimum subsistence level inherent in the Member State's basic income support system. However, the grounds for deviations mentioned in Article 17(5) of the Reception Directive are not exhaustive ("in particular"). Because of the principle of needs-based coverage, which is also enshrined in EU law, the Senate considers such differentiations to be justified that specifically address the differing needs of asylum seekers, comparable to the standard specified by the Federal Constitutional Court in BVerfGE 132, 134. In conjunction with the requirement of a complete and needs-based "guarantee" of adequate subsistence, only those differentiations "downwards" compared to the benefit level for nationals can be justified which are based on the individual needs of the applicants as persons seeking international protection.
(3) Measured against this standard, the benefit levels under Section 3a(1) sentence 1 no. 2 b) AsylbLG, Section 3a(2) sentence 1 no. 2 b) AsylbLG and Section 2(1) sentence 4 no. 1 AsylbLG are, upon preliminary review, contrary to EU law. As shown above, the lower standard benefit level of 90 percent compared to single persons living in an apartment is not based on the difference between benefits in kind and cash benefits within the meaning of Article 17(5) of the Reception Directive. It applies exclusively to cash benefits. These benefits also arise independently of benefits in kind in the form of accommodation in communal housing (for the further needs already factored out, see below cc). As already examined in the constitutional assessment, the ten percent reduction is based neither on a reduction of a benefit system objective above the subsistence level, since the RBEG (Standard Benefit Rate Calculation), which forms the basis for the benefit amount, serves precisely to determine a dignified minimum standard of living, nor is it justified by the special needs of asylum seekers. Even assuming that any objective reason related to need would suffice, such a reason is lacking, as the legislature has deviated from its own system for determining the standard benefit rates without any empirical basis. This is because, in contrast to other applications of standard benefit rate 2 or the parallel regulations in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), the legislature does not require actual shared living expenses as a prerequisite. Furthermore, the standard of Article 20 of the Charter of Fundamental Rights of the European Union, which also guarantees equality vis-à-vis the legislator, lacks the objective justification for unequal treatment with other single applicants, because it is incomprehensible why single persons seeking international protection who live in communal accommodation receive lower benefits than single persons in the same situation who live in a shared apartment.
(4) As a legal consequence, the Senate is obliged to leave unapplied the standards which lead to a reduction compared to standard benefit level 1 (or its equivalent in Section 3a AsylbLG).
Although Article 17 of the Reception Directive, considered in isolation, constitutes a legislative mandate not directly applicable by the courts of the Member States, this isolated consideration would mean that, according to the prevailing view, the courts of the Member States would only have the obligation to interpret it in conformity with the directive after the transposition period has expired. If such an application were not possible according to the Member State's methodological standard, non-application of a national legal provision by way of primacy of application would not be an option; rather, the person concerned would have to be referred to a claim for damages due to non-implementation of the directive (see, for the whole and the state of the opinion: Schroeder, in: Streinz, EUV/AEUV, 3rd ed. 2018, Art. 288 TFEU para. 108; Calliess/Kahl/Puttler, in: Calliess/Ruffert, EUV/AEUV, 5th ed. 2016, Art. 4 EUV paras. 96-100, advocating a power of the Member State court to declare a directive invalid irrespective of its direct applicability).
However, it has been shown above that Article 17 of the Reception Directive essentially only specifies Article 1 and Article 20 of the Charter of Fundamental Rights of the European Union. The Charter fundamental rights under Articles 1 and 20 are directly enforceable subjective rights (on Article 1, see Jarass, GRC, 4th ed. 2021, Article 1, para. 2 and Article 20, para. 2, each with further references). They are binding on the Senate as a national court in the present case, since the question of whether Section 3a Paragraph 1 Sentence 1 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), Section 3a Paragraph 2 Sentence 1 No. 2 b) of the Asylum Seekers' Benefits Act (AsylbLG), and Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) comply with the legislative mandate of Article 17 of the Reception Directive is a question of the "implementation of Union law" within the meaning of Article 51 Paragraph 1 Sentence 1, last clause, of the Charter of Fundamental Rights of the European Union (CFR). The subjective rights derived from the Charter are endowed with primacy of application in the application of law by national courts; national courts have a legal obligation to observe this primacy of application (cf. Article 4 Paragraph 3 of the Treaty on European Union – TEU). This also applies if the application of the fundamental rights of the Charter of Fundamental Rights (CFR) is based on Article 51 CFR by a provision of a directive that is not directly applicable (see, regarding the parallel problem of the lack of direct applicability of the directive in horizontal relations and Article 21 CFR: ECJ, Judgment of 19 January 2010, Case C-555/07 – Kücükdevici, ECR 2010, I-365, cited in juris, paragraphs 21 et seq., 53; cf. already Judgment of 22 November 2005, Case C-144/04 – Mangoldt, ECR 2005, I-9981, cited in juris, paragraphs 76-77). The same applies in the case of a methodologically impossible interpretation in conformity with the directive, namely the primacy of the Union fundamental right containing the corresponding legal principle (see in detail ECJ, Judgment of 17 April 2018, Case C-414/16 – Egenberger, juris, paragraphs 75 to 81).
The legal consequence of the primacy of application is the non-application of the element of the offense or the partial provision that establishes the incompatibility with EU law. Since, according to the systematic structure of the Asylum Seekers' Benefits Act (AsylbLG) – as demonstrated in particular by the internal structure of Section 2 AsylbLG and the basic income support system for calculating standard needs – Section 3a Paragraph 1 Sentence 1 No. 2 b) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 b) AsylbLG, and Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG are exception provisions, the applicant must be placed in such a position that the provisions for single persons who do not live in communal accommodation apply to him.
(cc) Since either the requirements of Section 3a Paragraph 1 Sentence 1 No. 2 b) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 b) AsylbLG and Section 2 Paragraph 1 Sentence 4 No. 1 AsylbLG, as interpreted in conformity with the constitution, are not met, or because of the primacy of EU law the applicant must be treated like single persons who do not live in communal accommodation, the amount of benefits is calculated according to Section 3a Paragraph 1 Sentence 1 No. 2 a) AsylbLG, Section 3a Paragraph 2 Sentence 1 No. 2 a) AsylbLG or Section 2 Paragraph 1 Sentence 1, Paragraph 2 AsylbLG.
For the period up to and including November 11, 2020, this results in an increase of €35 (October 2020) and €12.73 (§ 3a para. 1 sentence 1 no. 2 a) AsylbLG, § 3a para. 2 sentence 1 no. 2 a) AsylbLG, pro rata for November 2020) (see the table above).
For the period from November 12, 2020, to December 31, 2020, the entitlement under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) is to be calculated as follows, whereby the following calculation is binding only for these preliminary injunction proceedings: The starting point is standard benefit level 1 in the amount of €432, less at least the de facto provision of benefits in kind under Section 4 of the Income and Expenditure Survey (EVS) in the amount of €35.01, and generally less any further benefits in kind provided under Section 2 Paragraph 2 of the AsylbLG. In this respect, the Senate assumes that the applicant's needs under Section 4 of the EVS (housing, energy, and household maintenance) were and are fully covered by benefits in kind. Therefore, the vagueness and incompleteness of the benefit provision in the decision of January 14, 2021 (see below), which only shows deductions but does not include a corresponding provision of benefits in kind, does not have any effect, at least not under the standard of preliminary injunction proceedings. The Senate could assume that this need was fully met in practice and would continue to be fully met. The situation is different, however, with regard to the invoice item labeled "less reduction: other reasons (note in the appendix!)" amounting to €24.44. If a benefit provider intends to grant benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) partially as benefits in kind, based on Section 2 Paragraph 2 of the AsylbLG, a operative clause must specify which benefits will be provided in kind if a corresponding amount is to be deducted from the remaining cash benefit payment. Despite the Senate's inquiry, the respondent has not clarified which provision is meant by "less reduction: other reasons (note in the appendix!)". Should the deduction in question be for Section 5 of the Income Tax Assessment (interior furnishings, household appliances, ongoing household management), which Schwabe, ZfF 2020, 1<3>, quantifies at €24.34 in reduction-oriented cases (§ 5 RBEG 2017), which seems plausible given the provision of household goods in kind required by § 3a para. 2 AsylbLG, then a corresponding approval for such benefits is lacking. The file contains only a one-time cash payment of €29.41, issued on March 2, 2020, for the purchase of dishes, which clearly does not relate to the needs to be covered by the entitlement under § 2 AsylbLG from November 2020 onwards. Unlike the needs covered by Section 4, it cannot be assumed here that the needs are fully met, as the household goods potentially used by the applicant constitute only a portion of the needs covered by Section 5. Since the decision lacks a provision for benefits in kind and the respondent has not commented on this, Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), which is applicable here, cannot be construed as a provision for benefits in kind; therefore, cash benefits must be granted, and no further deductions may be made. Accordingly, the applicant has credibly demonstrated an entitlement to benefits in the amount of €396.99 per month for 2020 (€432 - €35.01) based on Section 2 of the Asylum Seekers' Benefits Act (AsylbLG).
For the period from November 12th to 30th, 2020, the claim of €251.43 (19/30 of €396.99) is offset by a grant of €211.18; therefore, the applicant can claim payment of a further €40.25. In December 2020, the claim of €396.99 is €63.55 higher than the benefits granted.
The same applies to the period from January 1, 2021, whereby the Senate, due to the new legal regulations, bases its decision for this year solely on Section 5 of the RBEG 2021 (Regulation on the Remuneration of Socially Disadvantaged Persons). The standard benefit of €446 was therefore only reduced by €36.87 due to the provision of benefits in kind, particularly for household energy, among other things. The claim of €409.13 is thus €64.17 higher than the benefits of €344.96 granted for January 2020.
b) In view of the difference between the benefits granted and the substantiated claims for injunctive relief, most recently amounting to €64.17 per month, the grounds for the injunction cannot be denied. The difference currently amounts to 14.4 percent of the standard benefit, and this has persisted for an indefinite period. While in individual cases a higher percentage shortfall may appear acceptable under Article 19 Paragraph 4 of the Basic Law, despite the importance of guaranteeing a dignified minimum standard of living under Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law (see Federal Constitutional Court, decision of October 1, 2020 – 1 BvR 1106/20 –, juris), for example, if it concerns a one-off payment or minor amounts whose non-payment would not cause significant disadvantage, a permanent shortfall of 14.4 percent is unacceptable.
c) Since no special circumstances are apparent and the respondent, contrary to his assertions, continues to grant benefits on a monthly basis, the Senate limits the interim injunction to the end of May 31, 2021, the month following this decision. The Senate assumes that, assuming the situation remains unchanged, the respondent will continue to grant the benefits stipulated here beyond this date. Like the Senate, the respondent is also obligated under general principles (Article 4(3) TEU) to observe the primacy of EU law. Notwithstanding this, it is noted that at least one other district in Hesse has, due to the pandemic, implemented a constitutionally compliant interpretation of the relevant provisions.
3. The decision on costs is based on the corresponding application of Section 193 of the Social Court Act (SGG). The Senate took into account that the applicant had fully prevailed on his core claim. While his application for a further deduction in the decision of January 14, 2021, was not entirely successful, the respondent was nevertheless obligated to reimburse the costs, as he had given rise to the costs through his formulations in the application, which were incomprehensible even to legal experts.
This decision is not subject to appeal pursuant to Section 177 of the Social Court Act (SGG).
