DECISION
In the legal dispute
xxx,
Applicant,
Legal representative:
Attorney Sven Adam
Lange, Geismarstraße 55, 37073 Göttingen
against
Gießen Regional Council, Initial Reception Center, Department VII,
Lilienthalstraße 2, 35394 Gießen
Respondent,
The 9th Chamber of the Marburg Social Court decided on February 1, 2022, through its presiding judge, Judge xxx:
The respondent shall bear the applicant's extrajudicial costs.
REASONS
The application of the respondent's legal representative dated April 13, 2021 (page 42 of the court file) to order the respondent to reimburse the extrajudicial expenses necessary for the appropriate pursuit of legal rights within the framework of the cost decision pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG) is successful.
The decision on costs is based on Section 193 of the Social Courts Act (SGG).
Pursuant to Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG), the court decides by order upon application if the proceedings have been terminated in another manner. According to a written submission dated April 12, 2021, an acknowledgment of the claim for benefits commencing on or after March 16, 2021, was made. The legal representative accepted the acknowledgment and declared the legal dispute settled.
According to the principle of uniformity in cost decisions, the decision on costs covers all reimbursable costs arising from the legal dispute and the preliminary proceedings (B. Schmidt, in: Meyer-Ladewig/Keller/Leitherer, SGG, 13th edition 2020, § 193 para. 2 with further references).
Pursuant to Section 193 Paragraph 1 of the Social Court Act (SGG), the court decides on the costs of the proceedings at its equitable discretion, taking into account the current state of the facts and the legal arguments. The prospects of success of the action are therefore of particular importance. It is generally equitable that the party who would have lost should bear the costs (Federal Social Court [BSG], BSGE 17, 124 [128]; BSG, decision of December 13, 2016, B 4 AS 14/15 R, juris). In the case of partial success, apportionment of costs is possible. The court must consider the circumstances of the individual case and take all relevant factors into account.
Based on these conditions, the respondent is to be obliged to bear the applicant's necessary extrajudicial costs for the appropriate pursuit of legal action.
The application had a prospect of success if processed.
The respondent's decision of July 8, 2020, as amended by the decision of February 3, 2021, constitutes a continuing administrative act. In this case, the respondent granted benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) for an indefinite period. The respondent's decision of March 5, 2021, revokes this grant, at least in part, for the future.
According to Section 48 Paragraph 1 Sentence 1 of the German Social Code, Book X (SGB X), an administrative act with effect for the future must be revoked if there is a significant change in the factual or legal circumstances that existed when the administrative act was issued.
According to Section 1a Paragraph 7 Sentence 1 of the Asylum Seekers' Benefits Act (AsylbLG), persons entitled to benefits under Section 1 Paragraph 1 Number 1 or 5, whose asylum application has been rejected as inadmissible by a decision of the Federal Office for Migration and Refugees under Section 29 Paragraph 1 Number 1 in conjunction with Section 31 Paragraph 6 of the Asylum Act and for whom deportation has been ordered under Section 34a Paragraph 1 Sentence 1 second alternative of the Asylum Act, shall only receive benefits in accordance with Paragraph 1, even if the decision is not yet final.
However, the provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG) raises significant constitutional concerns.
Because of the fundamental rights weight given to the benefits, which are intended to safeguard the human dignity of the benefit recipient, the interest in enforcement had to take a back seat to the interest in suspension in this case.
The controversial question of whether the provision is to be interpreted in a manner consistent with the constitution, with the consequence that benefits are to be granted contrary to the wording of Section 3 Paragraph 1 of the Asylum Seekers' Benefits Act (as held by the Higher Social Court of Hesse for Section 1a Paragraph 1 Sentence 3 of the Asylum Seekers' Benefits Act, decision of February 26, 2020 – L 4 AY 14/19 B ER – juris Rn. 49 ff.; see also Higher Social Court of Hesse, decision of March 31, 2020 – L 4 AY 4/20 B ER for Section 1a Paragraph 1 and Paragraph 2 of the Asylum Seekers' Benefits Act, BeckRS 2020, 6698 Rn. 34 ff.) can remain open in the present case, since the provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act can remain inapplicable here.
The Chamber is not prevented from disapplying the provision of Section 1a Paragraph 7 of the Asylum Seekers' Benefits Act (AsylbLG). This does not arise, in particular, from the statutory obligation of the specialized courts (Article 20 Paragraph 3 of the Basic Law) or the Federal Constitutional Court's monopoly on declaring constitutional provisions unconstitutional (Article 100 Paragraph 1 Sentence 1 of the Basic Law). While the specialized courts cannot expand the scope of legal protection for those seeking it without a statutory basis, they are therefore prohibited from granting a claim based on alleged unconstitutional deficiencies on the part of the legislature. On the other hand, the specialized court can protect those seeking legal protection from interference by public authorities (or infringements by private third parties) insofar as this is required under Article 19 Paragraph 4 Sentence 1 of the Basic Law or Article 2 Paragraph 1 in conjunction with Article 20 Paragraph 3 of the Basic Law, provided that no irreversible facts are created.
The specialized courts can therefore grant preliminary legal protection if they have serious doubts as to whether a provision of ordinary law, which the authority uses as a legal basis for interfering with the affected person's legal sphere, is compatible with the Basic Law. This was the case here.
