DECISION
in the legal dispute
xxx,
– Applicant –
Legal representative: Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
State of Baden-Württemberg,
represented by the District Administrator, Rems-Murr District Office – Foreigners' Registration Office –
Rötestraße 17, 71332 Waiblingen
– Respondent –
The 9th Chamber of the Stuttgart Social Court
on April 18, 2024 in Stuttgart
through Judge xxx of the Social Court
without oral proceedings:
The respondent is ordered by way of preliminary injunction to grant the applicant basic benefits pursuant to 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 February 29, 2024, until a final decision is reached on the applicant's objection of November 2, 2023
The respondent shall bear the applicant's extrajudicial costs.
REASONS
I.
The parties are in dispute regarding the granting of basic benefits in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1.
The unmarried applicant is housed in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act.
The respondent effectively granted the applicant basic benefits pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 3a Paragraph 1 No. 2b and Section 3a Paragraph 2 No. 2b of the AsylbLG from November 2023 onwards, in the amount of standard benefit level 2. Subsequently, by decision dated February 19, 2024, it implicitly continued to grant the applicant basic benefits of standard benefit level 2 in the same amount from January to August.
By letter dated 2 November 2023, the applicant lodged an objection against the decision, which the respondent decided on by decision on the objection dated 13 March 2024; the legal proceedings against this are pending under file number S 9 AY 1339/24 (joined to file number S 9 AY 1199/24).
On February 29, 2024, the applicant applied to the Stuttgart Social Court for an interim injunction, arguing that he was entitled to benefits at standard benefit level 1 in accordance with the decision of the Federal Constitutional Court of October 19, 2022 – 1 BvL 3/21.
The applicant requests,
The respondent is ordered by way of preliminary 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, in accordance with the legal opinion of the court, until a legally binding decision is reached on the applicant's objection of November 2, 2023, against the de facto provision of benefits by the respondent (file no.: 5616.804449).
The respondent requests that
the application be dismissed.
The respondent argues that there is no legal basis for the standard benefit level 1. The Federal Constitutional Court's decision refers only to analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, the applicant has not credibly demonstrated any grounds for an injunction. It is not apparent that the applicant's financial resources are exhausted, and he has not explained what disadvantages he would face if he were referred to the outcome of the main proceedings.
Regarding the facts of the case and the further details thereof, reference is made to the attached paper administrative file of the respondent and the electronically maintained court file.
II.
The application for an interim injunction is admissible and well-founded.
The provisional legal protection here is governed by Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG). According to this provision, the court of first instance may issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages.
This is the case if, upon preliminary examination, the applicant has a claim to the requested benefit (claim for an injunction) and the enforcement of the claim cannot wait until a decision on the merits due to particular urgency (ground for an injunction). The claim for an injunction and the ground for an injunction must be substantiated (§ 86b paragraph 2 sentence 4 of the Social Court Act (SGG) in conjunction with § 920 paragraph 2 of the Code of Civil Procedure (ZPO)).
The applicant has credibly demonstrated both the claim to an injunction and the grounds for the injunction.
The court is convinced that the claim already arises from the decision of the Federal Constitutional Court of 19 October 2022 (Case No. 1 BvL 3/21).
With this decision, the Federal Constitutional Court declared Section 2 Paragraph 1 Sentence 1 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 state principle from Article 20 Paragraph 1 GG, which guarantees a dignified minimum standard of living, insofar as a standard allowance for a single adult is only recognized at the level of standard allowance level 2, and ordered that, until new regulations are enacted, Section 28 of the German Social Code, Book XII (SGB XII) in conjunction with the Standard Allowance Determination Act and Sections 28a and 49 of the SGB XII shall apply mutatis mutandis to beneficiaries of benefits under Section 2 Paragraph 1 Sentence 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 a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard allowance at the level of the respective current standard allowance level 1 shall be used as the basis for calculating benefits for each single adult.
This undoubtedly also results in the unconstitutionality of the parallel regulation of Section 3a Paragraph 1 No. 2 lit. b AsylbLG or Section 3a Paragraph 2 No. 2 lit. b AsylbLG, which also provides for lower benefits than the analogous benefits under Section 2 AsylbLG (see also: Hessian State Social Court, decision of 20 December 2022 – L 4 AY 28/22 B ER; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG, marginal note 44).
Grounds for an injunction also exist. The mere fact that basic social security benefits are affected is not sufficient to generally assume an irreparable disadvantage that cannot be rectified in the main proceedings (see Federal Constitutional Court, decision of 19 September 2017 – 1 BvR 1719/17, juris, para. 8; Baden-Württemberg State Social Court, decision of 28 August 2019 – L 7 AY 2735/19 ER-B, para. 8, juris).
In view of the prevailing prospects of success in the main proceedings, as outlined above and with reference to the decision of the Federal Constitutional Court of October 19, 2022 (Case No. 1 BvL 3/21), the Chamber is of the opinion that a restrictive jurisprudence focused on demonstrating urgency (cf. Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG, para. 425 with further references) is not appropriate in the present case.
Against this background, the court considers the disputed monthly difference of €41, which amounts to approximately 11% of the currently approved standard benefit, to be sufficient to establish an urgent need (see also Mecklenburg-Vorpommern State Social Court, decision of January 21, 2021 – L 9 AY 27/20 B ER, para. 25, juris). Furthermore, the applicant will no longer receive any training allowance due to the termination of his school place on January 15, 2024.
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and takes into account that the application was successful in its entirety.
The court assumes that provisional benefits must be granted for longer than one year until the main proceedings are concluded with final legal effect, which is why an appeal in the main proceedings would be admissible pursuant to Section 144 Paragraph 1 Sentence 2 of the Social Court Act (SGG) and therefore an appeal (Section 172 Paragraph 3 No. 1 SGG).
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