DECISION
In the appeal proceedings
xxx,
– Applicant and Respondent –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55,
37073 Göttingen
against
The State of Rhineland-Palatinate, represented by the President of the Supervisory and Service Directorate,
Willy-Brandt-Platz 3, 54290 Trier
– Respondent and Appellant –
The 3rd Senate of the Rhineland-Palatinate State Social Court in Mainz decided on June 5, 2024, through
Presiding Judge xxx,
Judge xxx, and
Judge xxx
:
1. The respondent's appeal against the decision of the Social Court of Trier of 7 May 2024 is dismissed as inadmissible.
2. The respondent shall also bear the extrajudicial costs of the applicant's appeal proceedings.
3. The applicant is granted legal aid for the appeal proceedings and lawyer Sven Adam, Göttingen, is appointed to represent him.
REASONS
I.
The applicant, born in Turkey in 1984, entered the Federal Republic of Germany via Greece and Belgium on September 21, 2023, according to his own statement, and submitted an asylum application a few days later. On September 26, 2023, he was assigned to the respondent and is currently housed in the reception center in Bitburg. His basic needs (§ 3 Asylum Seekers' Benefits Act - AsylbLG) are covered by in-kind benefits. In addition, the respondent provides him with cash benefits for his necessary personal needs (§ 3a AsylbLG) in the amount of €184.00 per month, according to standard benefit level 2 of § 3a para. 1 no. 2 lit. b AsylbLG. These benefits are paid to him in cash on a daily basis; for example, he received €98.40 on September 26, 2023, and €12.00 on September 1 and 12. and on March 28, 2024, €85.90 each, and on April 25, 2024, €171.70. On April 28, 2024, the applicant filed an objection "against the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from the date of assignment to the reception facility".
The respondent does not maintain administrative files, and no written benefit notices are issued because, in the respondent's view, the benefit amount is directly determined by law. The benefit amount is calculated automatically by a computer system and, as a rule, paid out in cash to the beneficiaries every two weeks.
The application filed with the Trier Social Court on April 28, 2024, seeking an interim injunction to compel the respondent to grant the applicant "provisionally and subject to the right of recovery until a final and binding decision is reached on the applicant's objection of April 28, 2024, against the respondent's de facto provision of benefits, taking into account the court's legal opinion, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court," was granted by the Social Court by order of May 7, 2024, and the respondent was ordered to provisionally grant the applicant higher benefits for the period from April 28, 2024, until a decision is reached on the objection of the same date "in accordance with Sections 3, 3a Paragraph 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG)." The grounds for the decision state that, in the court's opinion, the applicant is also entitled to the necessary personal needs allowance at level 1 pursuant to Section 3 Paragraph 1 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), even though he is accommodated in a reception center, and thus fulfills the factual requirements of Section 3a Paragraph 1 No. 2 lit. b AsylbLG. Section 3a Paragraph 1 No. 2 lit. b AsylbLG must be interpreted in conformity with the constitution, and, by way of a norm-preserving teleological reduction, an actual "mutual support" must be read into the provision as an unwritten requirement.
The respondent filed an appeal against this decision, arguing that, contrary to the Social Court's legal opinion, the applicant was not entitled to benefits at standard benefit level 1. The Social Court lacked the authority to declare a legal norm invalid. Furthermore, the cited decision of the Federal Constitutional Court (decision of October 19, 2022 - 1 BvL 3/21) concerned the parallel provision for those entitled to analogous benefits under Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) and was not automatically applicable to Section 3a Paragraph 1 No. 2 Letter b of the AsylbLG. The respondent stated that he would only decide on the applicant's objection after the appeal had been decided. He further argued that the benefits were being provided without the "issuance of administrative acts" and that the appeal was admissible because the benefits in question were recurring or ongoing for more than one year within the meaning of Section 144 Paragraph 1 Sentence 2 of the Social Courts Act (SGG).
II.
1. Contrary to the Social Court's incorrect instructions on legal remedies, the respondent's appeal is inadmissible and must therefore be dismissed as inadmissible.
a. The introduction of the exclusion criteria in Section 172 Paragraph 3 of the Social Courts Act (SGG) was intended to exempt decisions of the Social Court from appeal if they would not be subject to appeal even in the event of a lawsuit or if they have only minor economic relevance. In the present case, the appeal against the preliminary injunction issued by the Social Court is inadmissible under Section 172 Paragraph 3 No. 1 SGG because an appeal on the merits would require leave to appeal. According to Section 144 Paragraph 1 Sentence 1 No. 1 SGG, an appeal requires leave to appeal in the judgment of the Social Court or, upon appeal, by decision of the Higher Social Court if the value of the subject matter of the appeal does not exceed €750.00 in a lawsuit concerning a monetary, service, or in-kind benefit or an administrative act related thereto. The value is not to be calculated based on the subject matter of a pending main action. Rather, the starting point is the value of the subject matter of the dispute on which the social court actually ruled (see also LSG Hessen, decision of April 13, 2021 – L 4 AY 3/21 B ER).
The relevant value of the appeal at the time of filing (§ 202 SGG in conjunction with § 4 Code of Civil Procedure - ZPO) of €750.00 is not exceeded here. The respondent was not ordered by the Social Court to make provisional payments exceeding the value of the appeal, also because, based on the interpretation of his application in this respect (…until a final and binding decision on the objection…), the applicant could neither obtain nor intended to obtain such an obligation by way of an interim injunction.
In order for the value of the appeal to exceed the amount due, based on the date of application to the Social Court, where there is a difference between the requested benefit of €204.00 per month according to standard benefit level 1 and the amount of €184.00 actually granted according to standard benefit level 2 (see Section 3a Paragraph 1 Sentence 1 No. 2 b of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with the announcement on the amount of the benefit rates pursuant to Section 3a Paragraph 4 of the AsylbLG for the period from January 1, 2024 – Federal Law Gazette I No. 288 of October 27, 2023), the respondent would have had to be provisionally ordered by way of an interim injunction to grant the applicant benefits by this amount for almost 38 months (€750.01 ÷ 20.00), i.e., for a period of over three years. However, this would contradict the purpose of issuing an interim injunction and was not done by the Social Court.
The Social Court ordered the respondent to pay benefits only until "a decision is reached on the objection of April 28, 2024," taking into account that the grounds for issuing a preliminary injunction also have a temporal dimension. Urgency only exists for a short-term period. The further into the future the period for which benefits are sought lies, the more reasonable it is for the applicant to await the outcome of the main proceedings. Therefore, grounds for an injunction can generally only exist for benefits for the present and near future. Consequently, the specialized courts are not obligated to issue a preliminary injunction for the entire (foreseeable) duration of the pending main proceedings or for the entire subject matter of the dispute (see Burkiczak in jurisPK-SGG, as of May 28, 2024, § 86b, para. 520 et seq.).
b. The appeal is also not admissible because an appeal would be exempt from leave to appeal pursuant to Section 144 Paragraph 1 Sentence 2 of the Social Court Act (SGG). Contrary to the respondent's view, the dispute does not concern recurring or ongoing benefits for more than one year. Based on the operative part of the contested decision, it is evident that no obligation to pay benefits for more than one year has been imposed. According to the legislative intent of Section 88 Paragraph 2 of the Social Court Act (SGG), the authority should, as a rule, decide on the objection pursuant to Section 85 of the Social Court Act (SGG) within three months. The purpose of the waiting period before filing an action for failure to act is to grant the authority a reasonable amount of time to reach a decision. As announced, the respondent will accordingly decide on the applicant's objection of April 28, 2024, immediately after the Senate's decision, i.e., within the legally prescribed period.
c. Moreover, the admissibility of the appeal does not follow from the Social Court's incorrect instructions on legal remedies. Incorrect instructions on legal remedies cannot open up a legal remedy that is excluded by law (see Keller in: Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, before § 143 para. 14b; Bavarian State Social Court, decision of May 4, 2020 – L 11 AS 63/10 B PKH, juris, paras. 9f.).
2. The decision on costs is based on a corresponding application of Section 193 Paragraph 1 Sentence 1 of the Social Court Act (SGG).
3. Legal aid shall be granted for the appeal proceedings without examination of the prospects of success (§§ 73a para. 1 sentence 1 SGG in conjunction with § 119 para. 1 sentence 2 ZPO).
4. This decision is not subject to appeal (§ 177 SGG).
