DECISION
In the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen
against
Greiz District Office
, represented by the District Administrator,
– Legal Department –
Dr. Rathenau-Platz 11, 07973 Greiz
– Respondent –
The 21st Chamber of the Social Court of Altenburg, through its presiding judge, Judge xxx, decided without oral proceedings on January 13, 2025:
The respondent is ordered by way of an interim 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 November 24, 2024, until a final decision is reached on the applicant's objection of November 22, 2024.
The respondent must reimburse the applicant for the necessary extrajudicial costs.
The applicant is granted legal aid without installment payments for the proceedings from 24.11.2024 and, as requested, lawyer Sven Adam, Lange-Geismar-Straße 55, 37073 Göttingen is appointed as his legal counsel.
REASONS
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 applicant (hereinafter referred to as AS), born in 1975 and single, is an Iranian citizen. By order of the Thuringian State Administrative Office dated August 12, 2014, AS was assigned to the district of Greiz effective August 13, 2014. Since then, he has been housed in the communal accommodation operated by the respondent (AG) on Reichenbacher Straße in Greiz.
By decision dated August 8, 2024 (served to the applicant on August 13, 2024), the agency granted the applicant benefits for food, clothing, and healthcare in the amount of €229 per month and for personal daily living expenses (pocket money) in the amount of €184 per month as a cash benefit (standard benefit level 2), effective August 13, 2024. This grant is valid as long as there are no changes in the applicant's economic or personal circumstances, or at the latest until a reassessment. The benefit amount is based on Section 3 in conjunction with Section 3a, paragraphs 1 and 2 of the Asylum Seekers' Benefits Act (AsylbLG). The instructions on legal remedies state, among other things, that the objection can be submitted in writing, for the record, or by means of an electronic document bearing a qualified electronic signature to the special official mailbox (beBPo) of the office named in the letterhead, which is listed in the SAFE directory (secure directory services). On November 25, 2024, a further decision was issued, granting AS benefits for food, clothing, and healthcare in the amount of €220 and for personal needs in the amount of €177, effective January 1, 2025.
By decision dated 07.11.2024, the employer assigned the applicant to a work opportunity pursuant to Section 5 of the Asylum Seekers' Benefits Act (AsylbLG) at the Greiz-Ronneburg District Hospital GmbH, starting on 18.11.2024, with a maximum of 25 hours per week for a duration of six months and compensation of 0.80 euros per hour.
On November 22, 2024, AS, through his authorized representative, filed an objection against the granting of benefits under the Asylum Seekers' Benefits Act (AsylbLG) for the period from August 13, 2024, and also against the decision of November 7, 2024.
On November 24, 2024, the applicant filed an application for preliminary legal protection with the Social Court, arguing that the benefits under Sections 3, 3a Paragraph 1 No. 2 b, Paragraph 2 No. 2b of the Asylum Seekers' Benefits Act (AsylbLG) at standard benefit level 2 (for single persons in a reception center or communal accommodation) were unconstitutional. The applicant asserted that the legislature had failed to conduct any investigations into the needs of those affected by this regulation, nor had it determined the essential living expenses in a transparent and appropriate procedure. Their needs, the applicant argued, did not differ significantly from those of single adult benefit recipients living in their own apartments. The applicant further argued that the legislature's justification for comparing the synergy effects of accommodation in communal housing did not withstand scrutiny based on the actual circumstances. The applicant asserted that shared financial management, comparable to that between partners, did not occur in refugee accommodations.
He referred to a number of decisions by various social courts and state social courts, which, among other things, assumed that Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) could only meet the requirements of the fundamental right to a dignified minimum standard of living, guaranteed in Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 1 of the Basic Law (GG), by means of a constitutionally compliant restrictive interpretation. According to this ruling, benefits for single beneficiaries in communal accommodation should only be calculated according to standard benefit level 2 if there is actual and demonstrable shared household management with other residents in the communal accommodation, if they live and manage their finances together, and if this results in lower needs for things like food, but also leisure, entertainment and culture (see, among others, Social Court Leipzig, Decision of January 8, 2020 – S 10 AY 40/19 ER; Social Court Kassel, Judgment of November 19, 2020 – S 12 AY 22/20; Social Court Marburg, Decision of December 31, 2020 – S 9 AY 1/20; Bavarian State Social Court, Judgment of October 30, 2023 – L 8 A 33/23, para. 63f). In preliminary legal protection proceedings, an assignment to standard benefit level 1 therefore appears appropriate within the framework of the balancing of interests (cf. Saxon State Social Court, decision of 23 March 2020 – L 8 AY 4/20 B ER; Social Court Dresden, decision of 4 February 2020 – S 20 AY 86/19 ER).
Furthermore, he referred to the decision of the Federal Constitutional Court of 24 November 2022 – 1 BvL 3/21 – in which it declared Section 2 Paragraph 1 Sentence 4 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with Article 20 Paragraph 2 of the Basic Law (GG), insofar as a standard benefit for a single adult is only recognized at the level of standard benefit level 2, and ordered that, until a new regulation is enacted, standard benefit level 1 should also be applied for single adults.
According to Section 84 Paragraph 2 Sentence 3 in conjunction with Section 66 of the Social Court Act (SGG), the deadline for lodging an objection against the decision of August 8, 2024, is one year after notification, since the legal remedy information was incorrect or incomplete.
There is also grounds for an order, as AS currently does not have sufficient means to secure its existence.
The employment agency considers the assignment to the work opportunity unlawful, so that non-participation in it cannot have any effect on the grounds for or entitlement to the order in the present proceedings. It is incomprehensible why the employer only grants standard benefit level 2 when, for example, the initial reception centers of the state of Thuringia or the city of Erfurt recognize standard benefit level 1.
The applicant requests that
the court be ordered, by way of an interim injunction, to grant the applicant the requested benefits in the constitutionally compliant amount at standard benefit level 1, from the date of receipt of this application by the court, provisionally and subject to the right of recovery until a legally binding decision is reached on the applicant's objection of November 22, 2024, against the decision of August 8, 2024, as amended by the decision of November 25, 2024, taking into account the legal opinion of the court.
The AG requests that
the application be rejected.
He explained that there were good reasons to apply the Federal Constitutional Court's jurisprudence on Section 2 of the Asylum Seekers' Benefits Act (AsylbLG) regarding "analogous benefits" to the parallel provisions of Sections 3, 3a Paragraph 1 No. 2b, and Paragraph 2 No. 2b of the AsylbLG as well. However, the Federal Constitutional Court had also pointed out that the Basic Law does not prevent the legislature from making the granting of benefits contingent on the principle of subsidiarity, i.e., also on reasonable efforts to generate income. Since the applicant was assigned a work opportunity with an expense allowance for up to 25 hours by decision of November 7, 2024, he could earn an additional 80 euros per month by working and thus close the gap between standard benefit levels 1 and 2. The applicant therefore had the opportunity to help himself and, through additional income, to remedy the alleged lack of state support in securing his minimum subsistence level. The applicant did not take advantage of this opportunity.
Furthermore, the court pointed out the decreasing standard benefit rates from January 2025 onwards, which resulted from the standard benefit rates being adjusted in 2024 due to overestimated inflation. Therefore, the court was unable to establish a violation of the right to a dignified existence. Whether the applicant is entitled to the second standard benefit rate is ultimately a matter for the Federal Constitutional Court to decide.
II.
The application is admissible and well-founded.
Pursuant to Section 86b Paragraph 2 of the Social Court Act (SGG), the court of first instance may, upon application, issue a preliminary injunction concerning the subject matter of the dispute if there is a risk that a change in the existing state of affairs could frustrate or significantly impede the realization of a right of the applicant. 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.
Pursuant to Section 86b Paragraph 2 Sentence 4 of the Social Court Procedure Act (SGG) in conjunction with Section 920 Paragraph 2 of the Code of Civil Procedure (ZPO), the claim for an injunction and the grounds for the injunction must be substantiated. A claim for an injunction is presumed to exist if, after a summary examination, the main proceedings have a prospect of success. Grounds for an injunction exist if, after weighing the applicant's own interests, the interests of third parties, and the public interest, it is unreasonable to expect the applicant to await the decision on the merits. Therefore, there must be a particular urgency (see Keller in: Meyer-Ladewig/Keller/Schmidt, SGG, 14th ed. 2023, Section 86b, marginal notes 27 et seq.).
The claim for an injunction and the grounds for the injunction are not unrelated but form a dynamic system due to their functional connection. The greater the prospects of success in the main proceedings, the lower the requirements for the grounds for the injunction, and vice versa (cf. Keller, loc. cit., para. 27, with further references).
1. In accordance with these provisions, a claim for an injunction has been substantiated.
a) First, the finality of the grant notice of August 8, 2024, does not preclude a claim for an order for the period from November 24, 2024, to December 31, 2024. The objection of November 22, 2024, was admissible, in particular, it was filed within the prescribed time limit, as the one-year period pursuant to Section 66 Paragraph 2 Sentence 1 of the Social Court Act (SGG) was applicable. The instructions on legal remedies in the notice of August 8, 2024, were – after the required summary review – incorrect, since the court also provided information on the required form of the objection and, by referring to the document with a qualified electronic signature submitted to the Federal Postal Service (beBPo), did not fully cover all possibilities for electronic submission (see Hessian State Social Court, Decision of November 11, 2024 – L 4 AY 13/24 B ER, paragraphs 32 et seq.). Section 84(1) of the Social Court Act (SGG) refers to Section 36a(2) and (2a) of the SGG regarding the formal requirements for an objection, according to which, among other things, the submission of an electronic document bearing a qualified electronic signature is sufficient, or where further options for submission that replace written form are listed. This incomplete list could mislead the affected party, potentially preventing them from filing the appeal at all, in a timely manner, or in the correct form (see Federal Social Court, Judgment of September 27, 2023 – B 7 AS 10/22 R, para. 14).
Regardless, the objection could in any case be considered a review application pursuant to Section 44 of the German Social Code, Book X (SGB X). In such a case, an application for interim relief may also be admissible (see Keller, loc. cit., Section 86b, para. 26d), although particularly strict requirements would have to be placed on the grounds for the order due to the (potential) finality of the decision. A preliminary injunction would be possible if the earlier decision is manifestly unlawful (see Higher Social Court of Berlin-Brandenburg, decision of August 11, 2021 – L 23 AY 10/21 B ER, para. 5; Burkiczak in: jurisPK-SGG, 2nd ed., as of January 7, 2025, Section 86b, para. 397).
b) The Chamber finds that the benefit award notices of August 8, 2024, and November 25, 2024, are manifestly unlawful with regard to the amount of benefits. The applicant has credibly demonstrated a successful outcome on the merits. It must be assumed that an entitlement to benefits at standard benefit level 1 exists pursuant to Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG), even though the applicant is accommodated in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) and, according to the wording of the law, the needs at standard benefit level 2 are applicable to him.
The Chamber shares the considerable doubts, frequently expressed in case law and commentary, regarding the constitutionality of the special needs level for adult benefit recipients regulated by the legislature in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) who are housed in reception centers, communal accommodations, or comparable facilities (to name just a few examples: Higher Social Court of Mecklenburg-Western Pomerania; Decision of May 11, 2020 – L 9 AY 22/19 B ER and January 21, 2021 – L 9 AY 27/20 B ER; Social Court of Gelsenkirchen, Judgment of April 8, 2021 – S 32 AY 30/20, para. 16f; Social Court of Kassel, Decision of July 13, 2020 – S 12 AY 20/20 ER, para. 19f; Higher Social Court of Hesse, Decision of December 20, 2022). – L 4 AY 28/22 B ER; Stuttgart Social Court, Decision of May 15, 2024 – S 9 AY 1438/24 ER; Leupold in: Grube/Wahrendorf/Flint, 8th ed. 2024, AsylbLG, § 3a para. 12, Frerichs in: jurisPK-SGB XII, 4th ed., § 3a AsylbLG (as of December 23, 2024), para. 53). Regardless of whether one assumes a necessary interpretation in conformity with the constitution, in the sense that joint economic activity must be proven, or a direct derivation from the Federal Constitutional Court's decision, the prevailing case law and legal literature also assume an existing entitlement in the amount of standard benefit level 1. The Hessian State Social Court, for example, states the following in this regard (ibid., para. 39):
"Insofar as the Federal Constitutional Court limited its order to those entitled to benefits under Section 2 Paragraph 1 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) and those entitled to benefits under Sections 3, 3a Paragraph 1 Number 2 b) and Paragraph 2 Number 2 b) of the AsylbLG are not covered by the order, the constitutional issues of the regulations in Section 3a of the AsylbLG are comparable, because there is also no sound evidence that savings are regularly achieved or can be achieved in collective accommodations through shared resources that would justify a 10% reduction in benefits. Just as the respondent himself now evidently assumes, as evidenced by his partial admission of liability, the Senate therefore assumes that the order of the Federal Constitutional Court must also be implemented accordingly in the area of application of basic benefits under Sections 3 and 3a of the AsylbLG."
The decision of the Lower Saxony-Bremen State Social Court (decision of 29 June 2023 – L 8 AY 18/23 B ER, para. 10) states:
"It is very likely that she [the applicant] will be able to successfully claim benefits under Section 3a Paragraph 1 No. 1 and Paragraph 2 No. 1 of the Asylum Seekers' Benefits Act (AsylbLG) instead of these benefits. (...) The Federal Constitutional Court has ordered a transitional provision according to which, for single adults housed in communal accommodation or a reception center, a standard allowance at the level of standard allowance level 1 is granted under the conditions of Section 2 Paragraph 1 Sentence 1 and Sentence 4 No. 1 of the AsylbLG, and not at the level of standard allowance level 2. This undoubtedly also establishes the unconstitutionality of Section 3a Paragraph 1 No. 2b of the AsylbLG or Section 3a Paragraph 2 No. 2b of the AsylbLG and the necessity of applying the benefit rates of Section 3a Paragraph 1 No. 1 and Section 3a Paragraph 2 No. 1 of the AsylbLG in these cases. It is to be expected that the legislature will create a corresponding constitutionally compliant regulation." becomes."
The statements made by the Federal Constitutional Court can readily be applied to Section 3a of the Asylum Seekers' Benefits Act (AsylbLG). The same applies to the parallel provisions in Section 3a, paragraph 1, no. 2b and paragraph 2, no. 2b, especially since the introduction of the special needs level in Section 2, paragraph 1, sentence 4, no. 1 was merely a consequential amendment to these provisions (Bundestag printed matter 19/10052, pp. 19 et seq.); both provisions are therefore also unconstitutional (see Spitzlei in: BeckOK AuslR, 42nd ed., July 1, 2024, AsylbLG, Section 3a, marginal note 10; Leupold in: Grube/Wahrendorf, loc. cit., marginal note 12; Frerichs in: jurisPK-SGB XII, 4th ed., Section 3a AsylbLG (as of December 23, 2024), marginal note 53).
There is no obligation to refer the matter to the Federal Constitutional Court within the framework of preliminary injunction proceedings (see Lower Saxony-Bremen Higher Social Court, decision of August 24, 2022 – L 8 SO 56/22 B ER, para. 15; Keller in: Meyer-Ladewig/Keller/Schmidt, loc. cit., § 86b para. 39). The final review of the constitutionality of the applied provisions must be reserved for the main proceedings (see Mecklenburg-Western Pomerania Higher Social Court, decision of January 21, 2021 – L 9 AY 27/20 B ER, para. 26)
The appeal proceedings concerning the disputed legal question are pending before the Federal Social Court (BSG) under file number B 8 AY 1/22 R. A decision was issued in written proceedings on September 26, 2024, but the grounds for that decision are not yet available. Therefore, a referral to the Federal Constitutional Court (BVerfG) is likely.
2. Grounds for an order have also been substantiated.
a) The mere fact that basic social security benefits are affected is not sufficient to generally assume an irreparable disadvantage that cannot be corrected in the main proceedings (cf. Federal Constitutional Court, Decision of 19 September 2017 – 1 BvR 1719/17, para. 8; Higher Social Court of Baden-Württemberg, Decision of 28 August 2019 – L 7 AY 2735/19 ER-B, para. 8).
In view of the clearly predominant prospects of success in the main proceedings, taking into account the decision of the Federal Constitutional Court of 19 October 2022 – Case No. 1 BvL 3/21 – the Chamber is of the opinion that no high requirements should be placed on the substantiation of the urgency (similarly: Lower Saxony Higher Social Court, Decision of 29 June 2023 – L 8 AY 18/23 B ER, para. 10).
Even considering that the monthly difference in dispute here, amounting to 47 euros (or 44 euros from January 2025), represents approximately 11% of the standard benefit, the need for urgent relief must be justified given the impact on the constitutionally protected minimum subsistence level (see, e.g., Stuttgart Social Court, Decision of May 15, 2024 – S 9 AY 1438/24 E, para. 21; Hessian State Social Court, Decision of December 20, 2022 – L 4 AY 28/22 B ER, para. 40).
b) The employer is also unable to call into question the existence of grounds for an order by referring to the possibility of taking advantage of the work opportunity.
Firstly, it is unclear whether the applicant had, or still has, a sufficient and important reason for not commencing work at the hospital, at least temporarily. In the parallel preliminary injunction proceedings (file number: S 21 SO 1327/24 ER), the court merely stated that the applicant arrived at the hospital on time on November 18, 2024, but then called in sick, citing a fever. He has not appeared at the hospital since. The court has no further information regarding his state of health or any potential unreasonableness of work pursuant to Section 5 Paragraph 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 11 Paragraph 4 Sentence 1 Number 1, 3 of the German Social Code, Book XII (SGB XII) (as amended until December 31, 2022). According to the court's notification of January 7, 2025, the work opportunity is apparently no longer available to the applicant, as his deployment at the hospital is no longer being considered.
Apart from that, the court cannot agree with the lower court's argument that taking up the work opportunity would allow for additional income that could – temporarily – close the gap between the standard benefit levels, thus eliminating the need for urgent assistance. Firstly, it must be considered that asylum seekers living with partners are also included in work opportunities, meaning that they receive the same benefits despite the lack of comparability (no synergy or cost savings for the asylum seeker). Secondly, the €0.80 per hour is explicitly an expense allowance. This allowance is not paid because the benefit recipient performs work, but because taking up the work opportunity incurs additional expenses (see Siefert in: Siefert, 2nd ed. 2020, AsylbLG, § 5 para. 46). This amount is intended to cover the additional expenses of the benefit recipient arising from work-related needs, such as travel costs and work clothes (see Frerichs, loc. cit., § 5 para. 88). Therefore, any payments made under Section 5 para. 2 of the Asylum Seekers' Benefits Act (AsylbLG) cannot be considered "additional income." Referring to this provision to bridge unreasonable disadvantages due to the actual shortfall in the subsistence level (see Federal Constitutional Court, decision of October 19, 2022 – 1 BvL 3/21, para. 86) does not appear justified to the court. Classification or crediting as income is already precluded by the law itself, Section 7 para. 2 sentence 2 AsylbLG.
Insofar as the Local Court relies on the decision of the Federal Constitutional Court (BVerfG) of October 19, 2022 – 1 BvL 3/21, para. 60 et seq. – to preclude a provisional increase in benefits by invoking the principle of self-help, it must be noted that the Federal Constitutional Court's reasoning does not support the Local Court's argument. Firstly, the Federal Constitutional Court's reasoning pertains solely to the legislature's options within the framework of benefit legislation, not to direct individual needs or obligations. Secondly, the principle of subsidiarity is defined precisely by the requirement that existing income or potential savings due to communal management should be utilized first (which is not the case here), and obligations to cooperate could also be legally regulated. Even if one were to consider the obligation under Section 5 Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) as such an obligation to cooperate, it is certainly not intended to overcome, avoid, or reduce need (obviously already due to Section 7 Paragraph 2 Sentence 2 of the AsylbLG).
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and follows the outcome of the case.
The appeal is not excluded pursuant to Section 172 Paragraph 3 No. 1 of the Social Court Act (SGG). An appeal on the merits would be admissible (Section 144 Paragraph 1 SGG). While only the difference in benefits amounting to €47 or €44 per month from August 2024 onwards is in dispute, the Local Court (AG) issued permanent administrative acts for an indefinite period with its decisions of August 8, 2024, and November 25, 2024, respectively, and did not limit the duration of the benefits (Section 144 Paragraph 1 Sentence 2 SGG; see, e.g., LSB Mecklenburg-Vorpommern, Decision of January 21, 2021 – L 9 AY 27/20 B ER, para. 20; Social Court (SG) Stuttgart, Decision of May 15, 2024 – S 9 AY 1438/24 ER, para. 23).
Legal aid is granted in accordance with Section 73a Paragraph 1 Sentence 1 of the Social Court Act (SGG) in conjunction with Sections 114 Paragraph 1 Sentence 1 and 121 Paragraph 2 of the Code of Civil Procedure (ZPO). The required sufficient prospect of success for the non-frivolous application is evident from the above explanations.
The following is information on legal remedies.
