DECISION
In the legal dispute
xxx,
Legal representative:
Attorney Sven Adam, Lange Geismarstraße 55,
37073 Göttingen
– Applicant –
against
Altmarkkreis Salzwedel, represented by the District Administrator,
Karl-Marx-Straße 32, 29410 Salzwedel
– Respondent –
The 25th Chamber of the Social Court of Magdeburg decided on April 13, 2023, through its presiding judge, Judge xxx of the Social Court:
The respondent is ordered by way of an interim injunction to grant the applicant benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 1, provisionally and subject to the right of recovery, from March 22, 2023, until a final decision is reached on the applicant's objection of March 22, 2023, but no later than October 31, 2023.
The respondent shall bear the applicant's extrajudicial costs.
The application for legal aid and the appointment of lawyer Sven Adam is rejected due to the claim for reimbursement of costs against the respondent.
REASONS
I.
The parties are in dispute over the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG), in particular over the granting of benefits under standard benefit level 1.
The applicant, born on xx.xx.1981 and currently pregnant, entered the Federal Republic of Germany on May 13, 2022, and applied for asylum. She stated that she was a Cameroonian national.
The applicant was assigned to the respondent for accommodation and receives benefits pursuant to Sections 3 and 3a Paragraph 1 Item 2b and Paragraph 2 Item 2b of the Asylum Seekers' Benefits Act (AsylbLG), as well as benefits due to additional needs arising from pregnancy, from the respondent (decision of December 21, 2022). The applicant lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG).
The applicant filed an objection on March 22, 2023, against the decision of December 21, 2022, which contained the information on legal remedies stating that an objection could be lodged in writing or recorded with the respondent within one month of notification. To the Chamber's knowledge, no decision has yet been reached on this objection. On the same day, she filed an application for preliminary legal protection with the Magdeburg Social Court (SG). She argues that she is entitled to constitutionally guaranteed benefits under the Asylum Seekers' Benefits Act (AsylbLG) in such a way that the standard benefit level 1 should be granted. The provisions of Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) are manifestly unconstitutional, as they violate the fundamental right to a dignified minimum standard of living guaranteed by Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle of Article 20 Paragraph 1 GG, and contravene the general principle of equality. She referred to first-instance decisions of social courts in preliminary injunction proceedings and to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, published on November 23, 2022, under file number 1 BvL 3/21. In its ruling, the Federal Constitutional Court declared Section 2 Paragraph 1 Sentence 4 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social welfare principle enshrined in Article 20 Paragraph 1 GG, insofar as a single adult is only granted a standard allowance at the level of standard allowance level 2. The Federal Constitutional Court's decision is also applicable to the provisions of Section 3a Paragraph 1 Number 2b and Section 3a Paragraph 2 Number 2b of the Asylum Seekers' Benefits Act (AsylbLG).
The applicant requests that
the respondent be ordered, by way of an interim injunction, to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, until a final and binding decision is reached on the objection of March 22, 2023, against the respondent's decision of December 21, 2022, taking into account the legal opinion of the court.
The respondent requests that
the application be dismissed.
The respondent argues that there is no entitlement to higher benefits. For individuals living in communal accommodation, the provision of benefits for necessary personal needs and other necessary expenses is based on standard benefit level 2 according to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). No other legal provision exists. An analogous application of the Federal Constitutional Court's decision under file number 1 BvL 3/21 is unknown and has not been ordered by the supervisory authority. The statutory provision remains in effect.
For further details of the parties' submissions and the facts of the case, reference is made to the administrative files of the respondent and the court file, which were the subject of the decision-making process.
II.
The application for preliminary legal protection is admissible and well-founded.
Pursuant to Section 86b Paragraph 2 of the Social Courts Act (SGG), the court may issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing situation would hinder or substantially prevent the applicant from exercising their rights. 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. According to Section 86b Paragraph 2 Sentence 4 SGG in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the prerequisite for issuing a preliminary injunction is the demonstration of both a claim for an injunction (i.e., a substantive claim for performance in the main proceedings) and grounds for an injunction (i.e., the urgency of the regulation to avert substantial disadvantages). A claim for an injunction and grounds for an injunction are deemed credible if their factual prerequisites exist with a high degree of probability (cf. Keller in: Meyer-Ladewig/Keller/Leitherer/Schmidt, SGG, 13th edition 2020, § 86b para. 41).
The more serious the threatened violation of fundamental rights and the higher the probability of its 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 commensurate with 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 within the short time available—a decision may be made based on a balancing of interests (Federal Constitutional Court).<BVerfG> , Decision of 14 March 2019 – 1 BvR 169/19 – juris Rn. 15 with further references).
The Chamber is convinced that the applicant has credibly demonstrated a claim to an injunction.
The decision of December 21, 2022, did not become legally binding. The applicant's objection of March 22, 2023, was received within the extended deadline stipulated in Section 66 Paragraph 2 Sentence 1 of the Social Court Act (SGG). Since January 1, 2018, Section 84 Paragraph 1 of the SGG expressly stipulates that objections may be submitted "...in electronic form pursuant to Section 36a Paragraph 2 of the First Book of the Social Code...", i.e., with a qualified electronic signature. This clarifies that, at least since January 1, 2018, electronic form can be considered an equivalent procedural form alongside written form and oral form (for the record), and thus a further standard method of submission – in contrast to the previous legal situation (cf. Federal Social Court [BSG] judgment of March 14, 2013 – B 13 R 19/12 R). Since the respondent failed to include in its decision of December 21, 2022, the information regarding the possibility of filing an objection electronically pursuant to Section 36a Paragraph 2 of the German Social Code, Book I (SGB I), even though the authority had opened access to electronic legal transactions when issuing the decision and communicated with the adjudicating court in this manner, among others, this renders the legal remedy information defective and thus leads to the extended deadline under Section 66 Paragraph 2 Sentence 1 of the German Social Courts Act (SGG) (see Higher Social Court of Lower Saxony-Bremen, decision of September 9, 2021, file no. L 13 AS 345/21 B ER with further references, Higher Social Court of Schleswig-Holstein, judgment of October 29, 2021, file no. L 3 AS 108/20). The objection is admissible and, after summary review within the framework of the present preliminary legal protection proceedings, also well-founded.
The applicant lives in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Seekers' Benefits Act (AsylbLG) and indisputably receives benefits under Sections 3 and 3a of the AsylbLG. However, in light of the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022, she is entitled to these benefits to the extent of standard benefit level 1. In its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, the Federal Constitutional Court ruled that special benefit level 2 for a single adult housed in communal accommodation, as stipulated in the parallel provision of Section 2 Paragraph 1 Sentence 4 No. 1 of the AsylbLG, is incompatible with the Basic Law (Article 1 Paragraph 1 in conjunction with Article 20 Paragraph 1 of the Basic Law) (fundamental right to a guaranteed minimum standard of living that ensures human dignity). The legislator's assumption that it is possible and reasonable for those entitled to benefits to utilize the opportunities for shared resources offered in accommodations, and the consideration of the resulting savings when calculating their subsistence needs (see BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, not objectionable under constitutional law according to the principle of subsidiarity. However, this obligation to share resources is only proportionate in the narrower sense if it is sufficiently ensured that the conditions for fulfilling these conditions and thus achieving corresponding savings actually exist in the communal accommodations. For this to be the case, there must be explicit indications of such conditions in the context of shared accommodation (§ 53 AsylG) or reception facilities (§ 44 AsylG) (see BVerfG of 19 October 2022 – 1 BvL 3/21 – juris para. 74 et seq.).
The Federal Constitutional Court has ordered a transitional arrangement according to which, for single adults who are housed in communal accommodation, a standard allowance in the amount of standard allowance level 1 instead of 2 is recognized under the conditions of Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 AsylbLG.
The Chamber is convinced that this reasoning of the Federal Constitutional Court also applies to the parallel provisions for benefit recipients in collective accommodations under Section 3a of the Asylum Seekers' Benefits Act (AsylbLG), since it is highly probable that Section 3a Paragraph 1 No. 2b AsylbLG and Section 3a Paragraph 2 No. 2b AsylbLG are also unconstitutional (see Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG (as of November 28, 2022), marginal note 44_18). The circumstances are comparable, as there is no evidence that actual savings are regularly achieved, or could be achieved in the present specific case, through shared management in the collective accommodations.
The Federal Government, through the Federal Ministry of Labour and Social Affairs (BMAS), has already announced that the Federal Constitutional Court's ruling should also be applied to the granting of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG). The reasoning underlying the unconstitutionality of the provision—namely, that there is no credible evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits—is of a fundamental nature. The BMAS therefore assumes that the ruling also applies to the parallel provisions in Section 3a, paragraph 1, number 2, and paragraph 2, number 2, of the AsylbLG for benefits under the basic benefits scheme. Individual states (e.g., Berlin) have already stipulated that in the future, all single adults entitled to benefits under the Asylum Seekers' Benefits Act (AsylbLG) who are housed in communal accommodation, a reception center, or, if applicable, emergency accommodation, are entitled to the standard benefit rate or the standard benefit level for single adults according to standard benefit level 1, provided they do not live as young adults in their parents' household (regardless of the type of accommodation) (see, for example, the circular from the Berlin Senate Department for Integration, Labour and Social Affairs, Soz No. 01/2023, on the implementation of Sections 2 and 3, 3a of the Asylum Seekers' Benefits Act (AsylbLG)).
Furthermore, grounds for an injunction exist. Given the prevailing prospects of success in the main proceedings, as outlined above, and with reference to the decision of the Federal Constitutional Court of 19 October 2022, a restrictive jurisprudence in preliminary legal protection, focused on demonstrating urgency, is not warranted (Frerichs, loc. cit., para. 44.19), since it is also not foreseeable that the applicant will no longer be living in communal accommodation or a reception center in the near future.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The application for legal aid was to be rejected because, based on the court's cost decision, the applicant has a claim for reimbursement against the respondent, which is due and enforceable. According to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 of the Code of Civil Procedure (ZPO), a party who, due to their personal and financial circumstances, cannot afford the costs of litigation is entitled to legal aid upon application if the intended legal action or defense offers a reasonable prospect of success and does not appear frivolous. It is irrelevant whether the need for legal protection for a legal aid application is already lacking due to the claim for reimbursement of costs (cf. Thuringian Higher Social Court, decision of 26 April 2012 – L 8 SO 58/12 ER) or whether the claim for reimbursement of costs constitutes assets within the meaning of Section 115 Paragraph 3 Sentence 1 of the German Code of Civil Procedure and thus the neediness within the meaning of the law ceases to exist (cf. Saxony-Anhalt Higher Social Court, decision of 17 December 2008 – L 5 B 414/07 AS).
The following is information on legal remedies.
