DECISION
In the legal dispute
1. xxx
Applicant,
2. xxx
Applicant,
Legal representative:
Attorney Sven Adam,
Lange-Geismar-Straße 55, 37073 Göttingen,
against
Fulda District,
represented by the District Committee,
Department 5500 – Immigration,
Wörthstraße 15, 36037 Fulda,
Respondent,
The 7th Chamber of the Fulda Social Court decided on March 17, 2025, through Judge xxx of the Social Court:
1. The suspensive effect of the action brought on 11 February 2025 against the decision of 10 October 2024 as amended by the objection decision of 3 January 2025 is ordered.
2. The respondent is ordered, with the annulment of the enforcement of the decision of 10 October 2024 as amended by the objection decision of 3 January 2025, to pay the applicants the benefits withheld since 1 February 2025 as a consequence of the reduction in benefits pursuant to Section 1a of the Asylum Seekers' Benefits Act.
3. The respondent shall reimburse the applicants for the necessary extrajudicial costs of the legal proceedings.
4. The applicants are granted legal aid without installment payments for the first instance proceedings, effective from February 11, 2025, with the appointment of Mr. Adam, Attorney at Law, in Göttingen. The appointment is subject to the same conditions as for an attorney established within the district of the court hearing the case.
REASONS
With the present application for preliminary legal protection, the applicants seek an order suspending the effect of their action filed on February 11, 2025, against the decision of October 10, 2024, as amended by the decision on the objection of January 3, 2025. This application is admissible pursuant to Section 86b Paragraph 1 No. 2 of the Social Court Act (SGG) and is also admissible in all other respects. The respondent's decision of October 10, 2024, which revoked the initial decision of August 27, 2024, regarding the benefit amount as of October 31, 2024, and recalculated the monthly benefits as of November 1, 2024, pursuant to Section 1a Paragraph 4 Sentence 2 of the Asylum Seekers' Benefits Act (AsylbLG), as amended by the decision on the objection of January 3, 2025, constitutes an administrative act by which a benefit under the AsylbLG was partially withdrawn and against which objections and appeals pursuant to Section 11 Paragraph 4 No. 1 AsylbLG have no suspensive effect.
The application is also well-founded.
Pursuant to Section 86b Paragraph 1 Sentence 1 Number 2 of the Social Court Procedure Act (SGG), the court of first instance may, upon application, order the suspensive effect in whole or in part in cases where an objection or appeal does not have suspensive effect. The decisive factor in determining whether an application under Section 86b Paragraph 1 Sentence 1 Number 2 SGG is successful is whether, within the framework of an open balancing of interests, a public interest in the immediate enforceability of the administrative act takes precedence over the legitimate interests of the addressee. If the objection or appeal in the main proceedings is manifestly inadmissible or unfounded, the application for an order of suspensive effect must generally be rejected without further balancing of interests in the cases specified in Section 86a Paragraph 2 Numbers 2–4 SGG, because no legitimate interest of the addressee of the decision can oppose the legally mandated immediate enforceability of the administrative act. If, on the other hand, the objection and the action on the merits are obviously admissible and well-founded, the application must be granted, because then there is no public interest in immediate enforceability.
If the prospects of success cannot be assessed, a general balancing of interests is required, taking into account the degree of likelihood of success in the main proceedings. The principle is: the greater the prospects of success, the lower the requirements for the applicant's interest in a stay of execution. Conversely, the more severe the administrative measure, the lower the requirements for the prospects of success. The consequences that would ensue if the preliminary injunction were not issued, but the action were later successful, must be weighed against the disadvantages that would arise if the requested preliminary injunction were issued, but the action were ultimately unsuccessful. In this balancing, it may be considered that the legislature has provided for immediate enforcement as a general rule, as long as the applicant's interest in legal protection is respected, taking into account their rights under Article 19, Paragraph 4, Sentence 1 of the Basic Law, and in particular, as long as immediate enforcement does not impose a severe, unreasonable hardship on them. (Keller in: Meyer-Ladewig/Keller/Schmidt, Social Courts Act, 14th edition 2023, § 86b, Rn. 12 f, 12c, 2a).
Measured against this standard, the application for an order suspending the effect of the action brought on 11 February 2025 against the decision of 10 October 2024 as amended by the objection decision of 3 January 2025 was to be granted, because the contested decision proves to be manifestly unlawful.
With the contested decision of October 10, 2024, the respondent revoked the initial decision of August 27, 2024, regarding the amount of benefits as of October 31, 2024, and recalculated the benefits granted to the applicants as of November 1, 2024. The court already explained in its decision of November 28, 2024, in proceedings S 7 SO 6/24 ER, to which reference is made, that this decision was flawed due to an error of discretion and therefore unlawful, and why.
Following service of the decision of November 28, 2024, the respondent, by letter dated December 10, 2024, provided the reasons for the decision of October 10, 2024, and in this context discussed in detail why, in his opinion, the applicants did not enjoy protection of legitimate expectations within the meaning of Section 45 Paragraph 2 Sentences 1 and 2 of the German Social Code, Book X (SGB X). In this respect, the question can already be raised whether the method chosen by the respondent to provide the reasons is even suitable to remedy a failure to exercise discretion, or whether this should not rather have been done in the form of a substitute/supplementary administrative act (cf. Schütze, SGB X, 9th edition 2020, Section 41, marginal note 11). Ultimately, this question can remain open, since the subsequent review of legitimate expectations conducted by the respondent does not render the exercise of discretion required by Section 45 of the German Social Code, Book X (SGB X), unnecessary, unless – as in the present case – the exceptional circumstance of a so-called reduction of discretion to zero applies. The elimination of legitimate expectations, which is only determined after the balancing process, is, in a sense, a negative element of the legal definition for the revocation decision. The review of legitimate expectations thus precedes the discretionary decision both temporally and substantively (Federal Social Court [BSG], Judgment of November 5, 1997 – 9 RV 20/96 –, juris, para. 16; Jan Oliver Merten in: Hauck/Noftz SGB X, 1st Supplement 2025, Section 45 SGB X, para. 44). A discretionary decision should therefore only be made if the general and specific factual prerequisites of the revocation provision are met and the beneficiary has no legitimate expectation of revocation.
The fact that such a discretionary decision was made in the present case cannot be inferred from the supplementary statement of reasons dated December 10, 2024. In this respect, the court does not, in particular, follow the respondent's position in the written submission dated February 28, 2025. The supplementary statement of reasons dated December 10, 2024, did not merely fail to clearly separate the discretionary decision from the examination of the factual prerequisites of the revocation provision. Rather, it is clear from the respondent's letter of December 10, 2024 (page 2, second paragraph) that only a review of legitimate expectations pursuant to Section 45 Paragraph 2 Sentences 1 and 2 of the German Social Code, Book X (SGB X), was conducted, and not a discretionary decision regarding the legal consequences. The appeals authority also did not make a discretionary decision in the appeal decision of 03.01.2025, but merely referred to the respondent's subsequently provided justification, which it considered sufficient.
The decision of 10 October 2024, as amended by the appeal decision of 3 January 2025, therefore still appears to be flawed in terms of the exercise of discretion.
The decisive point in time for the proper exercise of discretion is, at the latest, the issuance of the decision on the objection. Subsequently adding discretionary considerations is not permissible if the decision – as in the present case – was not based on any discretionary considerations whatsoever. The deficiency in the exercise of discretion cannot be remedied in the legal proceedings. A failure to exercise discretion is irreparable (Federal Social Court [BSG], Judgment of March 1, 2011 – B 7 AL 2/10 R –, juris, para. 14; Federal Social Court [BSG], Judgment of January 20, 2021 – B 13 R 13/19 R –, SozR 4-2400 § 18a No. 4, SozR 4-1300 § 44 No. 41, SozR 4-2600 § 97 No. 3, juris, para. 37; Mrozynski, SGB I, General Part, 7th edition 2024, § 39, para. 31). The respondent's subsequent submission of its discretionary considerations in its brief of February 28, 2025, is therefore irrelevant.
The application for interim legal protection was therefore to be granted and the suspensive effect of the action brought on 11 February 2025 against the decision of 10 October 2024 in the form of the objection decision of 3 January 2025 was to be ordered.
The court simultaneously orders, pursuant to Section 86b Paragraph 1 Sentence 2 of the Social Court Act (SGG), the suspension of the enforcement of the contested decision, as this appears necessary in view of its illegality. This means that the respondent must pay out the benefits withheld from the applicants since February 1, 2025, pursuant to Section 1a of the Asylum Seekers' Benefits Act (AsylbLG).
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG).
The applicants were to be granted legal aid, as they are unable to pay the costs of litigation, even in installments, due to their personal and financial circumstances. Furthermore, the application has a reasonable prospect of success and does not appear frivolous (Sections 73a of the Social Courts Act (SGG) and 114 of the Code of Civil Procedure (ZPO)). Legal representation is required (Sections 73a of the Social Courts Act (SGG) and 121 Paragraph 2 of the Code of Civil Procedure (ZPO)).
Section 121, paragraph 3 of the German Code of Civil Procedure (ZPO) stipulates that a lawyer not established within the district of the court hearing the case can generally only be appointed if this does not result in additional costs. Since no special circumstances justifying the appointment of a lawyer from outside the district are apparent, the appointment of the lawyer from outside the district can only be made under the same conditions as for a lawyer established within the court's district (B. Schmidt in: Meyer-Ladewig/Keller/Schmidt, Sozialgerichtsgesetz [Social Courts Act], 14th edition 2023, § 73a, marginal note 9c with further references).
The following is information on legal remedies.
