DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange Geismarstraße 55,
37073 Göttingen
against
City of Ludwigshafen am Rhein, represented by the Mayor,
Bismarckstraße 25, 67059 Ludwigshafen am Rhein
– Respondent –
The 15th Chamber of the Social Court of Speyer decided on October 2, 2024, through
Judge xxx of the Social Court
:
1. The respondent is ordered by way of preliminary injunction to provide the applicant with provisionally higher benefits for the period from 29 September 2024 to 31 December 2024 in accordance with Sections 3, 3a Paragraph 1 No. 1, 3a Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), but at the latest until the decision on the applicant's objection of 19 September 2024 against the decision of 26 July 2024 becomes final and binding.
2. The respondent shall reimburse the applicant for his necessary extrajudicial costs.
3. The applicant is granted legal aid without installment payments and lawyer Sven Adam is appointed to represent him from the date of application.
REASONS
The application is admissible and well-founded.
1. According to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act (SGG), preliminary injunctions to regulate a provisional state of affairs with regard to a disputed legal relationship are permissible if such regulation appears necessary to avert substantial disadvantages. The application is admissible in particular because the main legal dispute is not a purely contestable matter. The applicants seek the granting of higher benefits.
A prerequisite for issuing a preliminary injunction is the existence of both a claim to the injunction (i.e., a legally valid entitlement to the provisionally sought benefit) and grounds for the injunction (in the sense of the urgency of a preliminary ruling). Both the grounds for the injunction and the claim to the injunction must be substantiated (§ 86b para. 2 sentence 4 of the Social Court Act (SGG) in conjunction with § 920 para. 2 of the Code of Civil Procedure (ZPO)). Due to the provisional nature of a preliminary injunction, it should generally not prejudge a final decision on the merits. In its decision, the court may both weigh the consequences and conduct a summary review of the prospects of success on the merits. However, if, without granting preliminary legal protection, serious and unreasonable impairments are imminent that cannot be averted otherwise and that could no longer be remedied by the main proceedings, then the courts may only consider the prospects of success once the factual and legal situation has been conclusively clarified. If, however, the court is unable to fully clarify the facts and the legal situation in expedited proceedings, the decision must be based solely on a balancing of interests (Federal Constitutional Court, decision of May 12, 2005 – 1 BvR 596/05 – all decisions cited according to Juris). If – as in this case – the benefits in question are those under the Asylum Seekers' Benefits Act (AsylbLG), which serve to ensure a life of human dignity and thus secure the minimum subsistence level, the paramount importance of these benefits for the recipient must be taken into account, with the consequence that, in cases of doubt, the benefits must be granted provisionally for constitutional reasons.
2. The applicant has substantiated his claim to an injunction. He has – which is undisputed between the parties – a claim to benefits to secure his livelihood pursuant to Section 3 of the Asylum Seekers' Benefits Act (AsylbLG). These benefits were granted to the applicant in principle by decision dated May 23, 2024.
The applicant is most likely entitled to benefits in accordance with Sections 3, 3a Paragraph 1 No. 1, 3a Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), even though he is accommodated in communal accommodation and therefore, according to the law, the reduced needs according to Section 3a Paragraph 1 No. 2, Paragraph 2 No. 2 of the Asylum Seekers' Benefits Act (AsylbLG) should apply.
However, based on the decision of the Federal Constitutional Court of 19 October 2022 (1 BvL 3/21), the adjudicating chamber assumes that the reduction of benefits for beneficiaries housed in communal accommodation compared to single adult beneficiaries is unconstitutional and that instead (possibly until a change in the law) the benefit rates must be applied in accordance with Sections 3, 3a Paragraph 1 No. 1, 3a Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG).
At this point, she adopts the statements of the Lower Saxony-Bremen State Social Court in its decision of June 29, 2023 (L 8 AY 18/23 B ER – Rn. 10):
"In its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, the Federal Constitutional Court ruled that the special needs 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 Asylum Seekers' Benefits Act (AsylbLG), is incompatible with the Basic Law (Article 1 Paragraph 1 GG in conjunction with Article 20 Paragraph 1 GG) (fundamental right to a dignified minimum standard of living). The Court held that the legislature's assumption that it is possible and reasonable for benefit recipients to utilize the opportunities for shared resources offered in the accommodations, and that the resulting savings should be taken into account when calculating the necessary subsistence level (see Bundestag Printed Matter 19/10052, pp. 24 et seq.), is, in principle, not objectionable under constitutional law according to the principle of subsidiarity. The obligation to share resources is proportionate in the narrower sense only if it is sufficiently ensured that the collective accommodations actually meet the necessary conditions to fulfill this obligation and thus achieve corresponding savings. No evidence of this has emerged in the case of shared accommodation (§ 53 Asylum Act) or reception facilities (§ 44 Asylum Act) (see Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/21 – juris para. 74 et seq.). The Federal Constitutional Court has ordered a transitional provision according to which single adults housed in communal accommodation or reception facilities are granted a standard allowance at the level of standard allowance level 1, and not at the level of standard allowance level 2, under the conditions of § 2 para. 1 sentence 1 and sentence 4 no. 1 Asylum Seekers' Benefits Act.
This undoubtedly also renders § 3a para. 1 no. 2 lit. b unconstitutional. Asylum Seekers' Benefits Act (AsylbLG) or Section 3a Paragraph 2 Number 2 Letter b AsylbLG and the necessity of applying the benefit rates of Section 3a Paragraph 1 Number 1 and Section 3a Paragraph 2 Number 1 AsylbLG in these cases. It is to be expected that the legislature will create a corresponding constitutionally compliant regulation. (...)
3. The applicant has also credibly demonstrated grounds for an injunction. Since the requested benefits are intended to secure the minimum subsistence level, urgency must be assumed. The vast majority of the benefits to be granted are intended to cover current needs and are required for this purpose. Therefore, waiting for a decision on the merits is unreasonable.
4. Specialized courts are not prevented from granting preliminary legal protection if they deem the challenged regulation unconstitutional, simply because they cannot decide on the question of unconstitutionality themselves, but must instead obtain a ruling from the Federal Constitutional Court pursuant to Article 100 Paragraph 1 of the Basic Law. While the Federal Constitutional Court's monopoly on declaring a law unconstitutional means that a court may only draw conclusions from its finding of unconstitutionality in the main proceedings after the Federal Constitutional Court has established this finding, this does not preclude the court from granting preliminary legal protection. However, Article 100 Paragraph 1 of the Basic Law does not prevent the specialized courts from granting preliminary legal protection based on their legal opinion even before the Federal Constitutional Court's decision, which may be obtained in the main proceedings, if this appears necessary in the interest of effective legal protection under the circumstances of the case and does not prejudge the decision on the merits (Federal Constitutional Court, Decision of June 24, 1992 – 1 BvR 1028/91 –, para. 29). From a procedural law perspective, the necessity of considering the unconstitutionality of a legal provision when reviewing the issuance of a regulatory order pursuant to Section 86b Paragraph 2 Sentence 2 of the Social Courts Act arises from the fact that the prospects of success in the main proceedings must be assessed. This includes the possibility of conducting a specific judicial review procedure under Article 100 Paragraph 1 of the Basic Law in the main proceedings and its prospects of success (Social Court Speyer, decision of 17 August 2017 – S 16 AS 908/17 ER –, para. 75).
This does not concern the derivation of specific benefit claims directly from the fundamental right to a guaranteed minimum standard of living (rejecting this: North Rhine-Westphalia Higher Social Court, decision of March 16, 2017 – L 19 AS 190/17 B ER –, para. 47), but rather the obligation to provisionally fulfill statutory benefit claims while temporarily disapplying a restriction in the justified expectation that the Federal Constitutional Court will declare this restriction unconstitutional in the context of main proceedings with binding effect also for the present main proceedings (cf. Speyer Social Court, decision of August 17, 2017 – S 16 AS 908/17 ER –, para. 76).
5. The court orders the respondent to continue the proceedings beyond September 30, 2024, because, despite the limitation of the decision of July 26, 2024, to this date, it can be assumed that, assuming unchanged circumstances, a tacit or explicit extension of the grant will occur. In the absence of any indication of imminent factual changes, it therefore appears appropriate to issue the regulatory order for the period until the end of the calendar year.
The fact that the objection of September 19, 2024, against the decision of July 26, 2024, may have been filed untimely does not preclude the order to be issued. Even in this case, the respondent would be obligated to correct an unlawful decision at any time in accordance with Section 44 Paragraph 1 of the Tenth Book of the German Social Code (SGB X).
6. The decision on costs is based on Section 193 Paragraph 1 Sentence 3 of the Social Court Act (SGG). The applicant has clearly expressed through his application for legal aid that he is also requesting reimbursement of his necessary extrajudicial costs from the respondent.
7. The decision is final, as the value of the appeal does not reach 750 euros (§ 172 para. 3 no. 2 SGG in conjunction with § 144 para. 1 sentence 1 no. 1 SGG).
