DECISION
In the appeal proceedings
L 4 AY 5/21 B ER
S 16 AY 29/20 ER (Social Court Darmstadt)
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 June 9, 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 22, 2021 is overturned 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: €42.83.
For December 2020: €67.44.
For January to July 2021 inclusive: €69.44 per month.
Furthermore, the application and the appeal are rejected.
The respondent must reimburse the applicant for the necessary extrajudicial costs incurred in both instances for the appropriate pursuit of her legal rights.
REASONS
The applicant's appeal of January 26, 2021 against the decision of the Darmstadt Social Court of January 22, 2021, with the request (in essence),
to overturn the decision of the Darmstadt Social Court of January 22, 2021, and to order the respondent, by way of preliminary injunction, to provisionally 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 October 1, 2020 – file number: 53377.79455.02
is permissible and largely justified.
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 any pending main proceedings. The starting point is the value of the subject matter on which the Social Court actually ruled. If the application in the preliminary injunction proceedings differs from the application in the main proceedings, the relevant factor, pursuant to Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG), is the request made in the preliminary injunction proceedings and the value of the appeal therein, not that of the main proceedings. If ongoing benefits are at issue, a distinction must be made as to whether the claim pertains to a closed period – for example, in the case of benefits deemed insufficient by the applicant – where the end of the benefit period marks a break, or whether the claim seeks benefits for the future. In the case of a claim for future benefits, the appeal 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 (see Senate decision of October 6, 2020, L 4 AY 22/20 B ER, juris para. 15), the Senate assumes a 12-month period in the case of a monthly benefit award 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 decision in a parallel legal dispute of April 13, 2021, L 4 AY 3/21 B ER – juris – with extensive references), if no decision has yet been made on the objection at the time the appeal is filed (similarly, Lower Saxony-Bremen State 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, as a concrete prediction of the maximum period the applicant could claim after the initiation of the appeal proceedings would lead to highly arbitrary results. Since benefits under the Asylum Seekers' Benefits Act (AsylbLG) are not pension-like, long-term benefits, the Senate applies the assessment under 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 August 14, 2020, is not a continuing administrative act that could render an objection filed on September 28, 2020, time-barred. Rather, this decision only granted benefits for August and September 2020; in the following months, benefits were implicitly approved on a monthly basis through payment.
In 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, Federal Social Court, 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 regulatory content of a decision in the area of 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 grant is limited to that month and includes the following addition: "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 abandoned the legal opinion from the Federal Social Court, judgment of February 8, 2007, B 9b AY 1/06 R). The approval for subsequent months is then not issued in writing on a monthly basis, but rather implicitly by bank transfer in accordance with Section 33 Paragraph 2 of the German Social Code, Book X (Federal Social Court, loc. cit.). The deciding panel has also already ruled that a formulation such as "The determined assistance is generally granted for one month. Payments following this approval constitute a new approval" indicates a monthly approval (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 clause without any further restrictive wording also suggests a continuing administrative act, even if the operative clause or the annexes only mention a calculation or a figure for a specific month of performance.
Measured against this standard, the decision of August 14, 2020, is not a continuing administrative act designed to be future-proof. In this respect, the Senate refers to its detailed reasoning in the parallel proceedings L 4 AY 3/21 B ER, in which identical decisions of the defendant were the subject of dispute. Based on this interpretation, the core issue of the appeal is the partial denial of benefits from October 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 13, 2021, does not mark a break in the proceedings. While, under circumstances not described here, a change in the granting practice from monthly grants to longer grant periods, particularly in connection with the decision on the objection concerning the preceding periods, can constitute a significant break in the proceedings, the decision of January 13, 2021, does not explain its relationship to the ongoing objection proceedings. It is limited to three changes to the (monthly) approvals for the months of November, December 2020, and January 2021. According to the "General Information," approvals from February 2021 onward were again implicitly issued on a monthly basis. The mere reference to an "amendment to the decision of August 14, 2020," which the Social Court found to be legally incorrect, and its designation as an "amended decision," is not sufficient to change this. This decision, too, has become the subject of the objection proceedings against the approvals since October 2020, pursuant to § 86 of the Social Court Act (SGG) by analogy. Considering a period up to and including September 2021 (12 months), the amount in dispute exceeds €750 (see the calculation in the parallel proceedings L 4 AY 3/21 B ER).
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 her claim in the main proceedings; a claim for an injunction and grounds for an injunction 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 constitutionally permissible for the decision on granting preliminary injunction to then be 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.
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 25, 2020, and under Section 2 of the AsylbLG for the subsequent period from November 26, 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 and, with sufficient probability, also possible. 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. 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. In support of its decision, the Senate again refers to the detailed explanations in the parallel legal dispute L 4 AY 3/21 B ER – juris –.
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 benefits claimed. 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 must either be subject to a constitutionally compliant interpretation, in which case the conditions for such an interpretation would not be met, or they would be inapplicable due to the primacy of EU law. In support of this, the Senate refers again to the detailed explanations in the parallel legal dispute L 4 AY 3/21 B ER – juris –.
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 according to the summary examination in the preliminary legal protection proceedings.
According to her uncontested and comprehensible statements, the applicant lives at a distance from the other residents in the communal accommodation. She lives in a single room with her own refrigerator. Given that the applicant avoids using the communal accommodation, particularly due to the Covid-19 pandemic, cooking together with neighboring families is also practically unlikely.
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, upon a literal interpretation and summary review, 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. Due to the simultaneous violation of fundamental rights under EU law, 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 AsylbLG, and Section 2(1) sentence 4 no. 1 of the AsylbLG, which are contrary to EU law, and to the application of the standard benefit rates for single persons regardless of their housing situation. In support of this, the Senate refers again to the detailed explanations in the parallel legal dispute L 4 AY 3/21 B ER – juris –.
The applicant falls within the personal scope of the Reception Directive pursuant to Article 3(1). The Turkish national submitted an asylum application on May 29, 2019, following her entry into Germany on May 25, 2019; she 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); she 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.
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, due to 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 from October 1, 2020 to and including November 25, 2020, this results in a claim that is €35 higher (October 2020: requested €351 <€153 + €198 > less approved €316 <€139 + €177 >) plus €29.17 (§ 3a para. 1 sentence 1 no. 2 a) AsylbLG, § 3a para. 2 sentence 1 no. 2 a) AsylbLG, pro rata for November 2020: requested pro rata €292.50 less approved pro rata €263.33).
For the period from November 26, 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 €31.12, 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 will continue to be 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. A different situation applies 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 granted in kind if a corresponding amount is to be deducted from the remaining cash benefit payment. Should this refer to the deduction from 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 case scenarios (§ 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 August 14, 2020, for the purchase of dishes (basic equipment), which clearly does not cover the needs to be met by the entitlement under § 2 AsylbLG from November 26, 2020. Unlike the needs listed in 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 an authorization for benefits in kind, Section 2 Paragraph 2 of the Asylum Seekers' Benefits Act (AsylbLG), which applies here, does not permit a corresponding provision for benefits in kind; therefore, cash benefits must be granted, and no further deductions should be made. In light of all this, the applicant has credibly demonstrated an entitlement to benefits in the amount of €400.88 per month for 2020 based on Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) (€432 - €31.12).
For the period from November 26 to 30, 2020, the claim of €66.81 (€400.88 divided by 30 x 5) is offset by a grant of €53.15 (€318.90 divided by 30 x 5), meaning the applicant can claim a further payment of €13.66 (for November total: €29.17 + €13.66 = €42.83). In December 2020, the claim of €400.88 is €67.44 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 €31.60 due to the provision of benefits in kind, particularly for household energy, among other things. The claim of €414.40 is thus €69.44 higher than the benefits of €344.96 granted for January 2020.
Given the difference between the benefits granted and the substantiated claims for injunctive relief, most recently amounting to €69.44 per month, the grounds for the injunction cannot be denied. In support of this, the Senate again refers to the detailed explanations in the parallel legal dispute L 4 AY 3/21 B ER – juris –.
Since no special circumstances are apparent and the respondent continues to grant benefits on a monthly basis, the Senate limits the interim injunction to the end of July 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.
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 her core claim. While her application for a further deduction in the decision of January 13, 2021, was not entirely successful, the respondent was nevertheless obligated to reimburse the costs, as his formulations in the application, which were incomprehensible even to legal experts, had given rise to the costs.
This decision is final and cannot be appealed pursuant to Section 177 of the Social Court Act (SGG).
