DECISION
in the legal dispute
xxx,
– Applicant –
Legal representative:
Attorney Sven Adam
, Lange-Geismar-Str. 55, 37073 Göttingen
against
City of Stuttgart – Office for Social Affairs and Participation,
represented by the Mayor,
Eberhardstr. 33, 70173 Stuttgart
– Respondent –
The 9th Chamber of the Stuttgart Social Court
on April 2, 2025 in Stuttgart
through Judge xxx (additional supervising judge)
without oral proceedings:
I. The respondent is ordered by way of preliminary injunction to grant the applicant basic benefits pursuant to Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) in the standard benefit level 1 in the amount of the standard benefit rates for 2024, provisionally and subject to the right of recovery, from 18 February 2025 until a final decision is reached on the applicant's objection of 11 February 2025
The respondent shall bear the applicant's extrajudicial costs.
II. The applicant is granted legal aid without installment payments, with the appointment of lawyer Adam.
REASONS
I.
The parties are in dispute regarding the granting of basic benefits under Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1, as well as the question of the protection of the benefit amount.
The unmarried applicant is housed together with her son in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act.
By decision dated January 9, 2025, the respondent granted her basic benefits for January 2025 pursuant to Sections 1 and 3 of the Asylum Seekers' Benefits Act (AsylbLG) in conjunction with Section 3a Paragraph 1 No. 2b and Section 3a Paragraph 2 No. 2b of the AsylbLG, in the amount of standard benefit level 2 according to the lower benefit rates for 2025 published in the Federal Gazette. Subsequently, the respondent granted benefits in this amount without a further decision.
By letter dated 11.2.2025, the applicant lodged an objection against the de facto granting of benefits, on which the respondent has not yet decided.
On February 18, 2025, the applicant applied to the Stuttgart Social Court for an interim injunction, arguing that, according to the decision of the Federal Constitutional Court of October 19, 2022 – 1 BvL 3/21 – she was entitled to benefits at standard benefit level 1. She also claimed entitlement to benefits at the rates applicable in 2024.
The applicant requests that
the respondent be ordered, by way of preliminary injunction, to grant the applicant, provisionally and subject to the right of recovery, the requested benefits in the constitutionally compliant amount at standard benefit level 1 from the date of receipt of this application by the court, in accordance with the legal opinion of the court, and to grant the applicant legal aid with the appointment of lawyer Sven Adam – Göttingen.
The respondent requests that
the application be dismissed.
The respondent argues that there is no legal basis for the standard benefit level 1. The Federal Constitutional Court's decision refers only to analogous benefits under Section 2 of the Asylum Seekers' Benefits Act (AsylbLG). Furthermore, the applicant has not credibly demonstrated grounds for an injunction. It is not apparent that the applicant's financial resources are exhausted, and she has not explained what disadvantages she would face if she were referred to the outcome of the main proceedings. Moreover, as an authority, the respondent is bound by the amounts published in the Federal Gazette.
Regarding the facts of the case and the further details thereof, reference is made to the attached paper administrative file of the respondent and the electronically maintained court file.
II.
The application for an interim injunction is admissible and well-founded.
Preliminary legal protection is governed here by Section 86 Paragraph 2 Sentence 2 of the Social Courts Act (SGG). According to this provision, the court of first instance may issue a preliminary injunction to regulate a provisional state of affairs with regard to a disputed legal relationship if such regulation appears necessary to avert substantial disadvantages.
This is the case if, upon preliminary examination, the applicant has a claim to the requested benefit (claim for an injunction) and the enforcement of the claim cannot wait until a decision on the merits due to particular urgency (ground for an injunction). The claim for an injunction and the ground for an injunction must be substantiated (§ 86b paragraph 2 sentence 4 of the Social Court Act (SGG) in conjunction with § 920 paragraph 2 of the Code of Civil Procedure (ZPO)).
The applicant has substantiated both the claim to an injunction and the grounds for the injunction.
The court is convinced that the claim already arises from the decision of the Federal Constitutional Court of 19 October 2022 (Case No. 1 BvL 3/21).
With this decision, the Federal Constitutional Court declared Section 2 Paragraph 1 Sentence 1 Number 1 of the Asylum Seekers' Benefits Act (AsylbLG) incompatible with Article 1 Paragraph 1 of the Basic Law (GG) in conjunction with the social state principle from Article 20 Paragraph 1 GG, which guarantees a dignified minimum standard of living, insofar as a standard allowance for a single adult is only recognized at the level of standard allowance level 2, and ordered that, until new regulations are enacted, Section 28 of the German Social Code, Book XII (SGB XII) in conjunction with the Standard Allowance Determination Act and Sections 28a and 49 of the SGB XII shall apply mutatis mutandis to beneficiaries of benefits under Section 2 Paragraph 1 Sentence 1 of the AsylbLG, with the proviso that, in the case of accommodation in communal accommodation within the meaning of Section 53 Paragraph 1 of the Asylum Act (AsylG) or a reception facility pursuant to Section 44 Paragraph 1 of the Asylum Act (AsylG), a standard allowance at the level of the respective current standard allowance level 1 shall be used as the basis for calculating benefits for each single adult.
This undoubtedly also results in the unconstitutionality of the parallel regulation of Section 3a Paragraph 1 No. 2 lit. b AsylbLG or Section 3a Paragraph 2 No. 2 lit. b AsylbLG, which also provides for lower benefits than the analogous benefits under Section 2 AsylbLG (see also: Hessian State Social Court, decision of 20 December 2022 – L 4 AY 28/22 B ER; Frerichs in: Schlegel/Voelzke, jurisPK-SGB XII, 3rd edition, Section 3a AsylbLG, marginal note 44).
There is also a ground for an order with regard to the granting of the standard benefit rates after 2024/protection of existing rights.
The entitlement to this arises directly from the statutory provision, since the grandfathering provision of Section 28a Paragraph 5 of the German Social Code, Book XII (SGB XII), which according to the wording of Section a is directly applicable to the calculation of the monetary amounts in Section 3a of the Asylum Seekers' Benefits Act (AsylbLG) (for details see Social Court Marburg, decision of 14 February 2025 – S 16 AY 11/24 ER –, juris Rn. 21 – 46; aA without further explanation Social Court Heilbronn, decision of 17 February 2025 – S 15 AY 181/25, in juris Rn. 23 f).
Because Section 3a Paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) stipulates that the monetary amounts according to Paragraphs 1 and 2 are to be updated on January 1st of each year in accordance with the rate of change pursuant to Section 28a of the Twelfth Book of the Social Code in conjunction with the Ordinance on the Updating of Standard Needs Levels pursuant to Section 40 Sentence 1 Number 1 of the Twelfth Book of the Social Code.
Section 28a paragraph 5 of the German Social Code, Book XII (SGB XII) stipulates the following: "If the update according to paragraphs 2 to 4 results in euro amounts for the standard benefit levels that are lower than the euro amounts applicable in the previous year, the euro amounts determined for the previous year shall continue to apply until a subsequent update results in higher euro amounts."
Section 3a paragraph 4 of the Asylum Seekers' Benefits Act (AsylbLG) refers to the entire provision of Section 28a of the Twelfth Book of the Social Code (SGB XII) with the wording "in accordance with the rate of change pursuant to Section 28a of the Twelfth Book of the Social Code (SGB XII) in conjunction with the Ordinance on the Adjustment of Standard Needs Levels pursuant to Section 40 sentence 1 number 1 of the Twelfth Book of the Social Code (SGB XII)," and not just individual paragraphs. An exclusion of the grandfathering provision of Section 28a paragraph 5 of the SGB XII cannot be inferred from the wording and also does not correspond to the legislator's intent (Social Court Marburg, decision of February 14, 2025 – S 16 AY 11/24 ER – juris para. 21-46).
Grounds for an injunction also exist. The mere fact that basic social security benefits are affected is not sufficient to generally assume an irreparable disadvantage that cannot be rectified in the main proceedings (cf. Federal Constitutional Court, decision of 19 September 2017 – 1 BvR 1719/17, juris, para. 8; Baden-Württemberg State Social Court, decision of 28 August 2019 – L 7 AY 2735/19 ER-B, para. 8, juris).
In view of the prevailing prospects of success in the main proceedings, as outlined in the decision of the Federal Constitutional Court of 19 October 2022 (Case No. 1 BvL 3/21) and the grounds for the referral decision of the Federal Social Court of 26 September 2024 – B 8 AY 1/22 R – juris, the court is of the opinion that a restrictive jurisprudence focused on demonstrating urgency (cf. Burkiczak in: Schlegel/Voelzke, jurisPK-SGG, 2nd ed., § 86b SGG, para. 425 with further references) is not appropriate in the present case.
Against this background, the court considers the monthly difference of €63 at issue here, which amounts to approximately 15% of the currently approved standard allowance, to be sufficient to establish an urgent need (cf. regarding the standard allowance 2023 also State Social Court of Mecklenburg-Vorpommern, decision of 21 January 2021 – L 9 AY 27/20 B ER, para. 25, juris).
The decision on costs is based on a corresponding application of Section 193 of the Social Court Act (SGG) and takes into account that the application was successful in its entirety.
The court assumes that provisional benefits must be granted for longer than one year until the main proceedings are concluded with final legal effect, which is why an appeal in the main proceedings would be admissible pursuant to Section 144 Paragraph 1 Sentence 2 of the Social Court Act (SGG) and therefore an appeal (Section 172 Paragraph 3 No. 1 SGG).
In view of the sufficient prospects of success and the applicant's need, legal aid was to be granted, whereby only the public treasury has the right to appeal in this respect.
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