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 May 13, 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) at standard benefit level 1 provisionally and subject to recovery from 2 April 2025 until a final decision is reached on the applicant's objection of 1 April 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 in accordance with Sections 3 and 3a of the Asylum Seekers' Benefits Act (AsylbLG) at the standard benefit level 1.
The unmarried applicant is housed in communal accommodation within the meaning of Section 53 of the Asylum Seekers' Benefits Act (AsylbLG).
The respondent granted her basic benefits without a decision from 1 February 2025 in accordance with Sections 1, 3 AsylbLG in conjunction with Section 3a Paragraph 1 No. 2b and Section 3a Paragraph 2 No. 2b AsylbLG in the amount of the standard benefit level 2.
By letter dated 1 April 2025, the applicant lodged an objection against the decision, which the respondent has not yet decided upon.
On April 2, 2025, the applicant applied to the Stuttgart Social Court for an interim injunction on the grounds that, in accordance with the decision of the Federal Constitutional Court of October 19, 2022 – 1 BvL 3/21 – she was entitled to benefits of standard benefit level 1.
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 any 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.
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.
The provisional legal protection here is governed 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).
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 (see 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 €44 at issue here, which amounts to approximately 10% 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.
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.
The decisions are final and unappealable, § 172 para. 3 no. 1 SGG, the subject of the dispute within the framework of the preliminary injunction is the regular benefit period of one year (Lower Saxony-Bremen State Social Court, decision of 17.8.2017 – L 8 AY 17/17 B ER –, juris), thus the difference between standard benefit levels 1 and 2 of €44 times 12, therefore €528, which is below the appeal amount of €750.
