DECISION
in the proceedings
xxx,
– Applicant –
Legal representative: Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
The State of Baden-Württemberg,
represented by the District Office of Schwäbisch Hall,
Münzstr. 1, 74523 Schwäbisch Hall
– Respondent –
The 16th Chamber of the Social Court of Heilbronn
on January 7, 2025 in Heilbronn
through Judge xxx of the Social Court
without oral proceedings:
The respondent is ordered by way of preliminary injunction to grant the applicant benefits pursuant to Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) provisionally from December 7, 2024 until a final decision is reached on the objection to the decision of November 21, 2024, but no later than May 31, 2025, taking into account benefits already received.
The respondent must reimburse the applicant's extrajudicial costs.
The applicant is granted legal aid with the appointment of lawyer Sven Adam.
REASONS
I.
The applicant is requesting benefits under the Asylum Seekers' Benefits Act (AsylbLG) at the level of standard benefit level 1 instead of standard benefit level 2.
The applicant, born on [date redacted] 2005 and a Syrian national, first entered Germany on December 26, 2023, and filed an asylum application. He was assigned to the Schwäbisch Hall District Office on February 8, 2024, for temporary accommodation, where he applied for benefits under the Asylum Seekers' Benefits Act (AsylbLG). He is entitled to a temporary residence permit. The respondent placed the applicant in communal accommodation. By decision dated February 7, 2024, the respondent granted the applicant benefits pursuant to Sections 3 to 7 of the AsylbLG. The respondent amended this decision by decision dated November 21, 2024, granting the applicant benefits pursuant to Section 3a, paragraphs 1 and 2 of the AsylbLG, effective January 1, 2025, in the amount of €220 per month as "basic asylum benefits" and €177 per month as "cash asylum allowance.".
On December 7, 2024, the applicant, through his authorized representative, lodged an objection against the decision of November 21, 2024, and submitted a request for review of the decision of February 7, 2024.
Also on December 7, 2024, the applicant, through his authorized representative, filed an application for a preliminary injunction. In support of his application, he argues that the provisions of Sections 3, 3a Paragraph 1 No. 2 lit. b, and Paragraph 2 No. 2 lit. b 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 (cf. Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175) and contravene the general principle of equality, Article 3 Paragraph 1 GG. The fundamental right to a dignified minimum standard of living guarantees every person in need of assistance the material prerequisites essential for their physical existence and for a minimum level of participation in social, cultural, and political life (Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, 1st headnote). The fundamental right to a dignified minimum standard of living necessitates a review of the basis and method of calculating benefits to determine whether they meet the objective of this fundamental right. The protection of this fundamental right also extends to the procedure for determining the minimum standard of living because a review of the outcome against the standard of this fundamental right is only possible to a limited extent. To ensure the transparency and judicial review of the scope of statutory assistance commensurate with the importance of the fundamental right, the determination of benefits must be justifiable on the basis of reliable figures and sound calculation methods (Federal Constitutional Court, judgment of February 9, 2010 – Case No.: 1 BvL 1/09, BVerfGE 125, 175, para. 109). With regard to the specific needs of those entitled to benefits under Sections 3, 3a para. 1 no. 2 lit. b, para. 2 no. 2 lit. b of the Asylum Seekers' Benefits Act (AsylbLG), the legislature has not conducted any investigations.
The applicant's representative requests that
the respondent be ordered, by way of preliminary injunction, 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 December 10, 2024, against the respondent's decision of February 7, 2024, taking into account the legal opinion of the court, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court.
The respondent requests that
the application be rejected.
The decision of February 7, 2024, is already legally binding. There is also no ground for an injunction. Basic needs can be met even with standard benefit level 2. Furthermore, the merits of the case must not be prejudged. There is also no legal basis for an injunction. The respondent lives in communal accommodation, which is why he is only entitled to standard benefit level 2. The Federal Constitutional Court ruled on a different set of circumstances, namely on analogous benefits. Moreover, the claim has already been definitively decided.
Furthermore, it should be noted that an appeal against the decision is not excluded.
For further details, reference is made to the court file and the administrative file of the respondent.
II.
The application is admissible and well-founded.
According to Section 86b Paragraph 2 Sentence 1 of the Social Courts Act (SGG), the court of first instance may, upon application, issue a preliminary injunction if there is a risk that a change in the existing situation could frustrate or significantly impede the applicant's exercise of a right. 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 (Section 86b Paragraph 2 Sentence 2 SGG). This is the case if, after weighing the interests involved and considering the circumstances of the individual case, it is unreasonable to expect the applicant to await the decision in the main proceedings (Keller in: Meyer-Ladewig/Keller/Leitherer, SGG § 86b Rn. 28). The likelihood of success of the main legal remedy (claim for an injunction) and the urgency of the desired preliminary injunction (ground for an 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)). A claim for an injunction is substantiated if the applicant has a claim to the requested benefit under substantive law with a high degree of probability (Burkiczak in: Schlegel/Voelzke, jurisPK-SGG § 86b SGG Rn. 384). The court conducts a summary examination of the facts and the law to the extent possible within the available time, with the examination being more thorough the more serious the potential consequences (Binder in Berchtold, Social Court Act, § 86b Rn. 41). A ground for an injunction is only credibly established if it is predominantly probable that the applicant would suffer unreasonable disadvantages if he were to wait for the outcome of the main proceedings (Burkiczak, loc. cit., para. 412).
The claim for an injunction and the grounds for it are interrelated, such that the requirements for the claim for an injunction decrease with increasing urgency or severity of the threatened harm (the grounds for the injunction), and vice versa. Due to their functional connection, the claim for an injunction and the grounds for it form a flexible system (Keller in Meyer-Ladewig/Keller/Leitherer, SGG, § 86b Rn. 27, 29 and 29a with further references). If a claim on the merits would be manifestly inadmissible or unfounded, the application for a preliminary injunction must generally be rejected regardless of the grounds for the injunction, because no right worthy of protection exists. Conversely, if a claim on the merits would be manifestly well-founded, the requirements for the grounds for the injunction are reduced, even though a ground for the injunction cannot be dispensed with entirely in this case. If the outcome of the main proceedings is uncertain, for example if a complete clarification of the factual and legal situation is not possible in the preliminary proceedings, a decision must be made by weighing the consequences as to which party can more reasonably be expected to wait for the decision in the main proceedings (LSG Hessen 13.03.2008 – L 7 SO 100/07 ER).
However, Article 19 Paragraph 4 of the Basic Law (GG) sets special requirements for the design of preliminary injunction proceedings if, without the granting of preliminary legal protection, serious and unreasonable impairments could arise that cannot be averted in any other way and that could no longer be remedied by the main proceedings (Federal Constitutional Court, Chamber Decision of May 12, 2005 – BvR 569/05, para. 24 in juris). While the decision in preliminary injunction proceedings can also be based on a summary examination of the merits instead of a balancing of interests, even if subsistence benefits are entirely at issue (Federal Constitutional Court, Decision of August 6, 2014, 1 BvR 1453/12), it must be noted that the more serious and probable a threatened violation of fundamental rights is, the more intensively the court must examine the factual and legal situation. If a definitive violation of fundamental rights is imminent, the court must lower the requirements for establishing prima facie evidence.
Based on this, the applicant is to be granted higher benefits by way of an interim injunction, as such a claim exists with a high degree of probability, which is why the applicant's objection to the decision of December 2, 2024, and the application for review of the decision of November 30, 2023, will be successful. Since the decision under review is manifestly unlawful, the finality of the decision does not preclude an interim injunction (Meyer-Ladewig/Keller/Schmidt SGG/Keller SGG § 86b Rn. 29c).
Regarding the illegality of the decisions of November 30, 2023, and December 2, 2024, the court concurs with the legal opinion of the Bavarian State Social Court (judgment of October 30, 2023, L 8 AY 33/23), according to which a constitutionally compliant interpretation of Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) is required. The court hearing the case here is also convinced that there are significant constitutional concerns regarding a literal interpretation. In this respect, the court refers to the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 (1 BvL 3/21). There, the Federal Constitutional Court stated: "If benefits to secure a life of human dignity are not already manifestly insufficient, it must be examined whether they are comprehensible, objectively differentiated, and overall justifiable." According to the Federal Constitutional Court, this is not the case when considering the legislature's assumption "that single people in need living in communal accommodation regularly achieve savings through shared living arrangements with other residents, which correspond to a 10% reduction in benefits compared to the standard benefit level 1." The legislature also based the provision of Section 3a, paragraph 1, no. 2 b) and paragraph 2, no. 2 b) on this unsubstantiated assumption of savings (see, in this regard, the decision of the Lower Saxony-Bremen State Social Court of June 29, 2023, L 8 AY 18/23 B ER). The Lower Saxony-Bremen State Social Court (LSG Niedersachsen-Bremen) states in this regard: “In its decision of October 19, 2022 – 1 BvL 3/21 – published on November 23, 2022, the Federal Constitutional Court (BVerfG) ruled that the special needs level 2 for a single adult housed in communal accommodation, according to 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 guaranteed minimum standard of living that ensures human dignity). The legislator's assumption that it is possible and reasonable for benefit recipients to utilize the opportunities for shared resources offered in the accommodations, and the consideration of the resulting savings when calculating the subsistence level (cf. BT-Drs. 19/10052, pp. 24 et seq.), is, in principle, constitutionally permissible under the…” The principle of subsidiarity is not objectionable. However, this obligation to share resources is only proportionate in the narrower sense 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 unconstitutional. Section 1 No. 2 lit. b AsylbLG or Section 3a Paragraph 2 No. 2 lit. b AsylbLG and the necessity of applying the benefit rates of Section 3a Paragraph 1 No. 1 and Section 3a Paragraph 2 No. 1 AsylbLG in these cases. It is expected that the legislature will create a corresponding constitutionally compliant regulation. Due to the overwhelmingly high prospects of success on the merits, the Senate no longer adheres to its restrictive case law in preliminary legal protection, which focuses on demonstrating the urgency (ground for the order) (see decision of July 9, 2020 – L 8 AY 52/20 B ER – juris para. 28 et seq.), in cases such as the present one (see also Frerichs in juris-PK SGB XII, 3rd ed. 2020, Section 3a AsylbLG, as of: May 25, 2023, paragraph 44.16 ff.).”
Therefore, a norm-preserving teleological reduction requires that, in addition to living together in communal accommodation, there must also be verifiable circumstances that justify cost savings, such as mutual support within a community, which is comparable to the situation of couples living together and the permissible assumption of actual cost savings associated with this (see also Bavarian State Social Court, Judgment of April 29, 2021, L 8 AY 122/20). In this regard, the respondent merely argued that the well-known arguments supporting the notion that a benefit recipient in communal accommodation can experience savings in various areas when the daily care of several people takes place under one roof cannot be categorically dismissed. The respondent was unable to identify any concrete cost savings beyond the general assertion of savings, nor are any such savings evident from the administrative file.
Because of the overwhelming likelihood of success in the main proceedings, there is also a ground for an order (cf. LSG Lower Saxony-Bremen, aaO).
The cost consequences result from the corresponding application of Section 193 of the Social Court Act (SGG).
The appeal is inadmissible, § 172 para. 3 no. 1 SGG.
Legal aid is granted pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 114 Paragraph 1 Sentence 1 of the Code of Civil Procedure (ZPO). The required sufficient prospect of success for the non-frivolous application is evident from the foregoing explanations. The applicant also meets the financial requirements for the granting of legal aid. The appointment of a lawyer is made pursuant to Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Section 121 Paragraph 2 of the Code of Civil Procedure (ZPO).
