The Federal Social Court
The Federal Social Court and social jurisdiction
The structure of the courts in the Federal Republic of Germany and Europe
According to the constitution it is clear that the administration of justice represents an independent state power, which stands alongside legislature and executive authority. The principle of the division of powers derived from Article 20 paragraph 2 of the Basic Law serves to diversify political power and thus moderate State control.
According to Article 92 of the Basic Law, judges are invested with judicial powers exercised by the Federal Constitutional Court, the Federal Courts envisaged in the constitution or Basic Law and the courts of the federal states (Länder). In accordance with Article 95 paragraph 1 of the Basic Law, the Federal Government established as the highest courts in the country the Federal Court of Justice in Karlsruhe, the Federal Administrative Court in Leipzig, the Federal Finance Court in Munich, the Federal Labour Court in Erfurt and Federal Social Court in Kassel.
This corresponds to the five independent branches of the law:
- ordinary jurisdiction (civil and criminal) consisting of district courts, regional courts, higher regional courts and the Federal Court of Justice;
- administrative jurisdiction consisting of administrative courts, higher administrative courts and the Federal Administrative Court;
- financial jurisdiction with financial courts and the Federal Finance Court;
- labour jurisdiction with labour courts, regional labour courts and the Federal Labour Court;
- social jurisdiction with social courts, higher social courts and the Federal Social Court.
Financial and social courts can be regarded as special administrative courts: Like the (general) administrative courts, they decide on public law disputes of a non-constitutional nature. This typically concerns lawsuits in which citizens try to assert their entitlement to social assistance or oppose official rulings.
Federal Constitutional Court
The Federal Constitutional Court was established in 1951 in Karlsruhe and occupies a special position being tasked with ensuring that the constitution is complied with. The Federal Constitutional Court cannot be appealed to as an additional appellte court. It checks court judgements - within the context of a constitutional complaint - to determine whether the court’s decision, possibly also the legal norms it is based on, conflict with the constitution and whether the individual‘s constitutional rights have thus been violated.
The Court of Justice of the European Union
The European Court of Justice established in 1952 is domiciled in Luxembourg and as the European Union’s judicial organ is responsible for the interpretation of the laws of the European Union, and ensures uniformity across member states. In addition, the Court of Justice can rule on legal disputes between national governments and EU institutions. Private persons, companies or organisation can also turn to the Court of Justice with a legal matter if they feel that a European Union organ has violated their rights.
Included in the courts of the European Union are also the Court of the European Union (Court of the First Instance) formed in 1989 and the Court for Public Services created in 2005.
In order to prevent individual member states interpreting European legal provisions differently, the concept of "preliminary reference" was introduced. Should a national court have doubts about the interpretation or validity of a legal provision of the European Union, as the decision-making court of last resort it can - and must - consult the Court of Justice. This advice is issued in the form of a "preliminary reference".
European Court of Justice for Human Rights
Based on the European Human Rights Convention, the European Court of Justice for Human Rights was established in 1959 with domicile in Strasbourg. It reviews judicial, legislative and executive acts in signature states relating to violations of the civil and political rights laid down in the Convention.
The 47 members of the European Council have ratified the European Convention on Human Rights. Every citizen has the right of appeal to the Court of Justice if one of their rights under the Convention has been violated.
The Social Court Act dated 3 September 1953 (Federal Law Gazette part I, page 1239) came into force on 1 January 1954. The inauguration of the Federal Social Court took place on 23 March 1955 when the first public session was held.
Before legislation establishing the Social Court Act, there were no independent courts with jurisdiction for the legal areas that today are allocated to social legislation. The German Reich’s Board of Social Insurance (Reichsversicherungsamt), founded in 1848 as the highest instance for social security matters is often regarded as the forerunner of the Federal Social Court. During its existence until 1945, the Board not only dealt with administrative matters, but was also and specifically given a judicial function. The highest instance for the important area of supporting victims of war in those days was the Reich’s welfare courts formed at the German Reich’s Board of Social Insurance.
Even in the post-war period, legal disputes in the field of social security were still dealt with by administrative authorities for several years, in particular, by the upper insurance agencies. It was only the Social Court Act that ensured uniform application and development of the law through independent courts with judges only bound by the rule of law. Since then the preconditions required by today’s interpretation of the constitution have been met and ensure that citizens receive the full legal protection constitutionally enshrined in Article 19 paragraph 4 of the Basic Law.
After German reunification on 3 October 1990, independent courts with social jurisdiction (Social Courts, Higher Social Courts) were established in all new Länder, while the Federal Social Court is the highest instance for the whole of Germany.
Competence of social jurisdiction
The competence of social jurisdiction and the Federal Social Court is precisely regulated by law. They are especially responsible for the following areas jointly also called "social security matters":
- statutory pension plan
- statutory accident insurance
- statutory health insurance
- long-term care insurance
- social security for artists
- panel doctor/dentist rights
- tasks of the Federal Labour Office (in addition to unemployment insurance, for example also insolvency substitute benefits)
- basic income for job seekers
- social welfare and Asylum Seekers Benefits Act
- social compensation for health impairment, including support for victims of war, support for soldiers, indemnification for vaccine-induced disabilities, compensation for victims of violence and certain matters under the Disabilities Act
- other government transfers (child allowance/parental benefits)
The factual jurisdiction of the social courts thus covers essential areas of the statutory social security system in the Federal Republic of Germany.
Courts with social jurisdiction
The courts are independent and separate especially from the administrative authorities. Social jurisdiction is - like administrative jurisdiction but unlike financial jurisdiction - organised into three instances. Courts with social jurisdiction in the Länder are Social Courts and Higher Social Courts. The highest court of justice with social jurisdiction in Germany is the Federal Social Court.
In principle, Social Courts rule in the first instance. The Social Court is a court of substance and examines the disputed matter in terms of law and facts. Accordingly, it also conducts investigations itself, in particular, by calling witnesses and obtaining medical expert reports. This investigation must be conducted officially and without submissions or suggestions from the participants in the case.
Higher Social Courts
When a judgement pronounced by a social court is appealed, the Higher Social Court makes the ruling. The appeal court is also a court of facts like the court of the first instance.
Federal Social Court
Aside from its competence as the first instance for certain disputes that exist in exceptional cases, the Federal Social Court rules as the final resort on appeals against judgements pronounced by a higher social court. Under certain circumstances, Social Court judgements can be appealed directly in the Federal Social Court (so-called "leap-frog appeals"). As a matter of principle, the Federal Social Court only decides on points of law, so contrary to the Social and Higher Social Courts, the Federal Social Court does not grant temporary legal protection. The Federal Social Court also has no competence in proceedings of temporary legal protection.
Many years of experience have shown that about 10% of all disputes referred to a particular instance on appeal proceed to the next higher instance of social jurisdiction.
Composition of the decision-making bodies (panels)
In all three instances of social jurisdiction and thus also in the Federal Social Court lay judges contribute to passing the judgement.
Judgements passed by Social Courts are usually pronounced by a chamber with one professional and two lay judges, while those in Higher Social Courts and the Federal Social Court by a panel including three professional and two lay judges.
In cases heard by Social and Higher Social Courts, participants do not have to be represented by an attorney. They can lead their own defence but are free to instruct an attorney.
When appearing before the Federal Social Court, the participants must be represented by an attorney ("mandatory representation"). Here all attorneys admitted to the bar of a German court as well as law lecturers at a state or state accredited university in a member country can be considered. In addition, trade union representatives, employer associations and legal representation associations also qualify. Their statutory task must consist mainly of representing the interests of society as well as consulting and representing the beneficiaries in line with the social and disabled compensation code. These organisations must act through people with the qualification for judicial office.
Exempted from this mandatory representation are, among others, public authorities and legal persons under public law who may act through employees qualified to take judicial office.
Proceedings before the courts with social jurisdiction of all instances and thus also the Federal Social Court are free of legal costs for citizens filing a suit (or being sued) as insured parties, recipients of other benefits or disabled persons; excluded from this are disputes that lead to excessively long court proceedings. Other complainants and respondents, however, must pay flat-rate legal fees (for proceedings Social Courts: 150 Euro, Higher Social Courts: 225 Euro, Federal Social Court: 300 Euro). This also applies if the ruling is in their favour. Legal fees charged according to the value of disputes, also common in other judicial branches, apply to proceedings where no insured or similar entity is involved (such as legal disputes between service providers or matters concerning panel doctors).
Out-of-court cost, on the other hand, that accrue especially when appointing an attorney must generally be borne by the losing party; the winner’s out-of-court costs are usually imposed on the losing party. This is different with regard to public authorities, whose expenses are never reimbursed.
A needy party that cannot bear the costs of a lawsuit will receive legal aid on request if the proceedings are not frivolous and there is a good chance of winning the case. The costs of the attorney of record are then either borne completely by the state treasury or the party is granted instalment payments depending on their income situation.
Federal Social Court
Function and tasks of the Federal Social Court
As in the case of other Federal Courts, the Federal Social Court acts as an appeal court only on points of law.
In legal proceedings before the Federal Social Court it is therefore basically unimportant whether, for example, the ruling being appealed is based on the wrong interpretation of a medical report, whether a witness made a false statement or the Higher Social Court extracted something from the court file which was not contained in it in such a form. This is because the Federal Social Court is bound to the actual findings made in the judgement being appealed. Alternatives only apply if the Higher Social Court makes procedural errors in its actual findings. However, these must then also be contestable in the legal process before the Federal Social Court and contested in the proper form. The Federal Social Court cannot conduct its own fact findings in the appeal process. It cannot, for example, call witnesses. If the case cannot be ruled on the basis of the findings actually available, the legal dispute must be referred back to the previous instance for a new trial and ruling.
Significance of Federal Social Court rulings
As a matter of principle, the legal validity of a Federal Social Court judgement only applies to the participants in the respective case. Generally, administrative authorities that have to decide on numerous similar cases are involved in appeals heard by the Federal Social Court. Despite not being legally binding, the rulings of the Federal Social Court thus often actually form a guideline for the decisions that administrative authorities make in similar cases. This also essentially contributes to the fact that important decisions made by the Federal Social Court are published in law reports, professional journals and social security organisation publications. In addition, the Federal Social Court informs the public by reporting all court dates on its website (www.bundessozialgericht.de). Furthermore, up-to-date judgement transcripts for the current year and the previous 5 years are made available.
Among other rulings in recent times, court panels have decided that
- within the complex process of allocations from the health fund (in 2010 more than Euro 170 billion), healthcare companies have no entitlement to higher allocations,
- tied attorneys (so-called "corporate counsel") are not entitled to exemption from the insurance obligation contained in statutory pension provisions,
- successor’s pension paid to the surviving wife by a statutory accident insurance can also be paid out when treatment of the long-term comatose husband is stopped,
- statutory accident insurance during company events (such as Christmas parties) that are held by management or with their approval as their own is valid,
- rental fees for a cello used at school are not benefits included in educational or participation packages,
- there are no constitutional objections to digital data matching among job centres and the Federal Central Tax Office to determine capital gains,
- the payment of child allowances to unaccompanied minors or orphaned refugee children who have already been living in Germany for a long time and cannot be deported because they possess the necessary residence permit, may not be conditional on gainful employment,
- unemployable disabled adults who receive subsistence grants or basic old-age and reduced earning capacity benefits and live with both parents or one parent, have a claim to maintenance benefits at requirement level 1 (100%),
- supplying a wig is not part of the statutory health insurance service package especially not to an older man,
- the entitlement to a knee brace (propelled by muscle power) ("CAM brace") enabling independent therapy and to modern continuous blood sugar monitoring instruments ("Continous Glucose Monitoring System") in the context of medical treatment depends on a positive recommendation from the German Joint Government Committee (G-BA),
- preliminary ruling proceedings will be initiated at the European Court of Justice on the question to what extent EU citizens residing in Germany as job seekers can be excluded from social benefits.
Access to the Court of Appeal
The duty of the Federal Social Courts is above all to secure legal uniformity and the development of the law and accordingly access to appeal courts is restricted. An appeal is only admissible if leave to appeal was expressly granted in the judgement of the Higher Social Court (or a leap-frog version of the judgement of the Social Court) or is granted by the Federal Social Court in response to a refusal of leave to appeal.
In 2014 about 70% of all appeals received by the Federal Social Court were granted by Higher Social Courts, 12% (as leap-frog appeals) from the Social Courts; about 18% of appeals were granted by the Federal Social Court on the basis of refusals of leave to appeal.
Leave to appeal is only granted if
- the legal matter has fundamental significance, in other word it addresses unresolved legal issues and its significance goes beyond the individual case or
- the judgement made by the previous instance deviates from a decision of the Federal Social Court, the Joint Panel of the Supreme Courts of the federal government or the Federal Constitutional Court or
- a procedural irregularity is asserted that impacts on the result (this reason for appeal is only considered for refusals of leave to appeal); not all procedural irregularities can be asserted; the asserted procedural irregularity can only be based on a violation of the official duty to investigate the facts if it relates to an application to produce evidence which the Higher Social Court did not follow without giving sufficient justification.
Experience has shown that if the appeal has not yet been granted by a Social or Higher Social Court, an appeal to the Federal Social Court against refusal of leave to appeal presents a hurdle that can be difficult to overcome. So for example in 2014 only about 6% of applications against refusal of leave to appeal were granted.
A complaint against refusal of leave to appeal submitted by the attorney on record must describe the reasons raised against the appeal precisely, comprehensively and according to certain rules in order to be admissible in the first place. It is only justified if the grounds for appeal actually exist. If the procedural irregularity does not actually exist or had no influence on the result of the judgement being appealed, the complaint against refusal of leave to appeal is rejected for being unjustified. Then there will also be no appeal proceedings.
Development of the judicial functions
When the Federal Social Court started its public sessions in March 1955, there were about 1,000 appeals pending. 2,280 new appeals were received in the same year. By 1964 the number of new appeals had risen to about 3,000 per annum with certain fluctuations. Then the number of new appeals dropped to about 2,000 in 1974, essentially due to the reduction of issues regarding the care of victims of war.
A fundamental up-date of the law on appeals in 1975 led to a permanent restructuring of the types of proceedings. The number of new appeals dropped noticeably: from about 2,000 per annum in 1974 to about 1,000 in 1975. This reduction, however, was counterbalanced by the receipt of appeals against the refusal of leave to appeal (1975: 1,151). Thereafter for many years, new appeals and complaints against non-allowance were received at a ratio of 1 to 2.
Over recent years the proportion of appeals against refusal of leave to appeal rose steadily. From 2010 to 2014, an average of about 480 appeals and about 2,080 appeals against refusal of leave to appeal were received every year.
Organisation of the Federal Social Court
The Federal Social Court is led by a President who holds a special legal position. On the one hand, he is the supervisor of the judges, civil servants and salaried employees at the Federal Social Court. In this function he exercises among other things administrative supervision of judges, however, only within the limits arising from judicial independence. On the other hand, he is a judge, who holds the chair on an expert panel and in addition by law that of the Great Panel, Executive Committee and Presidential Council.
Since 1 January 2008, Peter Masuch has been the President of the Federal Social Court. Dr. Rainer Schlegel (Prof) has been the Vice-President since July 2014.
Former Presidents of the Federal Social Court: Dr. Joseph Schneider, September 1954 to October 1968; Dr. Georg Wannagat (Prof), November 1968 to June 1984; Dr. Heinrich Reiter (Prof), July 1984 to August 1995; Dr. Matthias von Wulffen, September 1995 to December 2007.
Expert panels are established to ensure that the judicial tasks at the Federal Social Court are performed. These decide on the appeals with in principle five members including the chairman, three of which are professional judges. In addition, two lay judges are always included.
The expert panels are each tasked with certain matters of social security through the distribution-of-business plan and allocated to the judges as well as the lay judges. The distribution-of-business plan is always drawn up by an executive committee selected from the panel of judges at the start of each calendar year for its duration.
The Federal Social Court was inaugurated in 1953 with 10 panels. Currently there are 14.
The Grand Panel
Like in all federal supreme courts, there is also a Grand Panel in the Federal Social Court which decides in cases where a panel wants to deviate from the decision made by another panel or by the Grand Panel concerning a question of law, or one panel calls on the Grand Panel regarding a question of fundamental importance because in its view this is necessary for the development of law or securing legal uniformity. The Grand Panel consists of the President and a professional judge from each panel where the President is not the chairman. In addition, there are at least six lay judges.
Judges appointed to the Federal Social Court
At the beginning of its activities in 1954, the Federal Social Court had 24 permanent posts for professional judges. In view of the changing case loads, the number of judges has fluctuated over the years. As of 1 August 2015 there are 43 permanent posts for judges (President, Vice President, 10 presiding judges, 31 judges).
Professional Federal Social Court judges must be 36 years or older. The judges’ selection code specifies that they are to be elected by the judge election board and then appointed by the Federal President. Half the members of the judge election board are social jurisdiction ministers (or senators) of the respective state and the other half are appointed through election by the Bundestag.
Only in social and labour jurisdiction do lay judges also participate in reaching a verdict in the court of the last instance. Their participation in expert chambers (Social Courts) or expert panels (Higher Social Courts and the Federal Social Court) is important in order to involve and anchor social jurisdiction in civil society, and also for scenarios in which aside from legal questions, actual complex cases are dealt with (for example when judging work accidents and work-related illnesses, or categorising new treatment methods in the health insurances).
Like the professional judges, the lay judges acting in the Federal Social Court may not be younger than 36 and must have regularly participated in a social or a higher social court for at least five years. When decisions are being made their voice carries the same weight as that of professional judges.
Lay judges are generally appointed for five years by the Federal Ministry for Labour and Social Affairs on the basis of nomination lists from trade unions, independent associations of employees with socio-political and occupational objectives, employer associations, associations of state health service doctors and dentists as well as the health insurance groupings. For lay judges on the panel responsible for matters of the social compensation and disabled codes, the highest administrative authorities of the federal states and beneficiary associations pursuant to the social compensation code and associations of the disabled are entitled to submit nominations if their influence extends across Germany and they have a certain number of members. Lay judges participating in the panel responsible for social assistance and the Asylum Seekers Benefit Act are appointed on the basis of nomination lists from districts and independent towns.
Just as for the Social and Higher Social Courts, there is also a committee of lay judges. It is composed of seven members elected by the lay judges. The committee must be heard in advance of the formation of panels, the distribution of business and before lay judges are allocated to panels.
The expert panels at the Federal Social Court are supported by scientific co-workers from the various federal states. As a rule, scientific co-workers are qualified Social Court judges, who are generally seconded to the Federal Social Court for two years. Their main function is to support the Federal Social Court judges with preparatory work, in particular, by compiling votes and examining individual questions of law.
The administration of the Federal Social Court is the administrative manager’s responsibility and comprises central division, business unit, information technology as well as the scientific service, library and document office. In addition, judicial subject specialists are appointed for special tasks, especially a presidential advisor and press officer.
The Central Division makes personnel and equipment available to the entire operation of the Federal Social Court and organises business processes, providing the central services of the court administration.
The Central Division is divided into the following areas: "presidential administrative tasks", "personnel management", "personnel development", "press and publicity work", "equality", "audit jobandfamily", "social matters", "budget", "organisation", "allocation office", "contract matters", "internal service" as well as "property and building management".
The Federal Social Court employs (as of August 2015) a total of 216 people (43 judges, 10 scientific co-workers, 68 civil servants, 89 employees subject to wage negotiations and 6 apprentices).
Funds required for personnel and material expenses are allocated to the Federal Social Court within the budget framework via its own budget chapter (1115) in the individual budget plan of the Federal Ministry for Labour and Social Affairs.
The administrative office of the Federal Social Court is divided into three service units which are staffed by civil servants and salaried employees.
Service units are responsible for the proper and appropriate course of business of the panel allocated to them. Their tasks include supporting judges in their judicial duties and editing judicial decisions, taking minutes of verbal negotiations, registrations and certifications as well as taking care of the necessary written work.
The IT department is responsible for equipping the workplaces with proper functional hard- and software as well as for the proper operation of the local network, central facilities in the data centre and lines of communication with the outside world, while adhering to the requirements of IT security. In addition, it assists court members with all problems connected to the use of IT. Particularly important is the adaptation of existing IT processes to changing technology and the introduction of new IT-supported work processes especially in electronic communication (electronic legal communication) and electronic filing.
Concomitant with the establishment of the Federal Social Court in 1954, the library was created as a specialised judicial library to provide literature to judges as well as scientific co-workers at the Federal Social Court. In principle, it is open to the public and is used by judges and particularly also by scientists at the University of Kassel with which there is close cooperation. Through extensive acquisitions, an annual addition of about 3,000 volumes led to a total stock of about 169,500 volumes by the end of 2014, among these about 290 current loose-leaf publications, 560 current periodicals and about 600 social security provider statutes.
All areas of social legislation aim at an acquisition that is as complete and continuous as possible. The extensive stock of specialised legal periodicals that can be consulted at any time should be highlighted. To round off the stock of social legislation works, related areas (for example labour law, social sciences) are specifically incorporated. There is basic and standard literature relating to nearly all other legal areas.
The historical stock comes almost exclusively from the German Reich’s Board of Social Insurance in Berlin which was dissolved in 1954. In this regard, the library experienced an impressive growth when it inherited almost 20,000 volumes from the Reich’s Board. Included here is rare literature that former lower instances could not afford. Many of the old works are no longer available in any other library today.
An information centre with two permanent attendants and 26 reading stations is available to users. The majority of the literature is freely accessible. Visitors from outside are welcome and may be granted regular use, provided there is enough space. The Federal Social Court library is purely a reference library.
The entire stock has been captured electronically and can be researched using the online catalogue in the library. For this purpose, a computer is available to visitors. The library frequently sells selected specialist books from its stock which are mainly out-dated editions of texts and commentaries.
The sphere of activities of the Federal Social Court’s document office includes internal services and the preparation of documents for data inventory on the Federal Republic of Germany’s Judicial Information System (juris). The services are predominately used by judges as well as scientific co-workers to support them in their judicial function. However, they are also available to non-judicial court employees and in part to the public.
The document office’s internal services mainly comprise the creation of information services and pending legal questions in the Federal Social Court, communicating information and producing special data compilations. The information on legal questions regarding appeals pending in the Federal Social Court supplied by the document office can be accessed on the website of the Federal Social Court (www.bundessozialgericht.de). In addition, the document office prepares judgements, literature and administrative regulations for juris; this information is available to Federal Social Court judges for research purposes via this link.
Press and public relations work
Schedule preview and report
The expert panels at the Federal Social Court report on all upcoming hearings and decisions beforehand with the schedule preview, which can be downloaded on the Federal Social Court’s website (www.bundessozialgericht.de). Immediately after the hearings, information on the decisions taken by the Federal Social Court in the sessions is made available. The schedule previews are usually published seven to ten days before every session and contain a short description of the cases being decided. The schedule reports give the participants information on the results after every ruling or in the event of a decision without verbal proceedings after the judgement has been delivered.
Schedule indicators and media information
The Federal Social Court makes special schedule indicators available to the press which inform the public in advance of hearing dates that are particularly important or interesting to the public. The schedule indicator contains a summary the upcoming legal question being decided on, its practical relevance and the facts it is based on.
The Federal Social Court communicates the result of interesting proceedings and important events through separate press releases. Should the press release report on decisions taken by the Federal Social Court, the facts and the main reasons for the decision are presented and actual and legal backgrounds of the case may be explained for better understanding.
Schedule indicators and media information as well as schedule previews and reports are, however, not official Federal Social Court publications but primarily work documents for media representatives.
In the spring of every year, the Federal Social Court issues a report on its previous year’s activities. Aside from statistics, the activity report also contains contextual information on court judgements.
Annual press conference
The activity report is presented during the traditional annual press conference serving not only to communicate the object and extent of Federal Social Court judgements over the previous year, but also to discuss current pending problems regarding social law and social policies.
The website "www.bundessozialgericht.de" offers visitors access to diverse information about the Federal Social Court such as business distribution, questions of law, rulings and the media.
On the website under "Press" the schedule indicators and media information can be downloaded and while "Schedule" contains the schedule previews and reports. The offer is supplemented under "Decision" by free access to the complete text and - if available - the guiding principles of Federal Social Court decisions in the current and the last five years. Older decisions and decisions for commercial purposes can be obtained from the Court‘s dispatch office for a fee.
The Federal Social Court offers up-dated RSS feeds for all schedule previews and reports, media information as well as all decisions recently made available on the website.
The Federal Social Court building
The Federal Social Court building is a place of jurisprudence and encounters, but at the same time also a symbol of Germany‘s chequered history.
Built during National Socialism as a monumental symbol of their claim to power, and envisaged as the seat of the German Chancellor and Federal Government during Kassel’s bid to become the capital of post-war Germany, the building has been a centre for upholding democratic values since the middle of the 1950s. Here independent jurisdiction is exercised in the service of the social constitutional state.
During renovating and extending the group of buildings in 2008 and 2009, the architectural past was united with the present. Within 22 months, the old building was subjected to complete renovation by removing deficient features and replacing them with modern building standards. Due to functional and heritage protection requirements, a structure separate from the old building was erected in the inner court to house the Federal Social Court’s main courtroom. With its organic and free design, the new courtroom – named after Elisabeth Selbert – creates a great contrast to the power architecture of the 1930s. In contrast to the symmetrical and square style of the historical building, the oval architecture aims to symbolise a free way of thinking and living.
Situated in "Vorderer Westen" a district of the city of Kassel on the border of "Bad Wilhelmshöhe", the entire group of buildings surrounded by green space is a protected monument for historical, artistic and town-planning reasons.
The monumental group of buildings erected for military district purposes in the period from 1935 to 1938 was constructed in the neo-classical style around a square inner court as a four-wing complex with an extended north wing. Due to the sloping terrain of a former stream, the building had to be anchored on 1,250 concrete pillars. On the south side towards Wilhelmshöher Allee, it is four storeys high and on the Regentenstrasse side five storeys. The plaster façades above the rustic base level are divided by sandstone walls and pilaster strips.
The historical building had two entrances embodying the Nazi’s claim to power with their monumental architecture: On the east side towards the Graf-Bernadotte-Platz, was a column portal with an exterior stairway, two monumental sculptures and a triple internal marble staircase and the former hall of flags on the south side with an outdoor commemorative courtyard and colonnades.
Hardly damaged during the Second World War, the extensive building was used by the Americans as their headquarters and "general hospital" from April 1945. In 1947 the building together with its medical facilities were handed over to the city of Kassel, which then used it exclusively for civil purposes - as "Stadtkrankenhaus Wilhelmshöhe".
After the hospitals were destroyed in Kassel during the war had been reconstructed and the "Krankenhaus" closed down, the border patrol commando west moved into the building in 1951 as the main occupant.
In May 1954, the Federal Labour Court and in September 1954 the Federal Social Court commenced work in the former "General commando". During this period the interior of the building was renovated for court purposes.
In 1999 the Federal Border Guard headquarters were moved to Fuldatal and the Federal Labour Court was relocated to a new building in Erfurt. Since then only the Federal Social Court has been using the property.
For years it had already been obvious that defects to the building itself and the lack of technical infrastructure resulting from its age required fundamental renovation and modernisation of the entire property. Technical wear and tear, water damage, fire prevention problems, blocked external stairways were all signs of its condition. The dilapidated desolate natural stone cladding and falling plaster made protective measures necessary on a number of the building’s sections.
After testing various alternatives to functionally house the Federal Social Court, the building application to modernise the property in Graf-Bernadotte-Platz in Kassel was approved in early 2006 and the project published throughout Europe according to the German regulations for contracts and execution of freelance services (VOF).
Planning work already began in December 2006 when the community of architects from the Weimar architectural offices Junk & Reich Architekten BDA, Planungsgesellschaft mbH and Hartmann + Helm Planungsgesellschaft mbH were commissioned.
After the design documents for the building were approved and the contract was awarded in September 2007, the conditions were given for a Europe-wide tender for the building work.
After intensive planning and coordination, building started on 18 February 2008. A construction site measuring 21,200 m² and the tight building schedule with completion planned for December 2009 presented the planning and supervising team with a challenge. At times, this meant organising up to 250 construction workers in a process ranging from hiring over coordinating the building process and the interdependent work right up to the defect-free approval, while protecting completed parts as well as possible. Additional problems had to be overcome, for example, development issues of the original building, disguised war damage, load-bearing problems and obstacles on the building terrain as well as extreme weather conditions in the winter of 2008/2009. During construction, the former Federal Labour Court building and a three-story container office complex served as alternative quarters.
From 7 to 14 December 2009, the Federal Social Court moved back into the modernised and renovated court building. On 15 December 2009, the new courtroom in the inner courtyard was used for the inaugural meeting of the 1st panel.
The new main entrance
The south entrance is the new main entrance to the building. On the same level, you reach the new entrance foyer from Graf-Bernadotte-Platz. The former hall of flags was given a completely new character for this function. The back wall was removed and replaced with glass. Right here is also the entrance to the main courtroom. The modern design of the foyer matches the historical natural stone cladding while the illuminated ceiling enhances the impression of modernity.
The new main courtroom
Named after the Kassel lawyer and politician, Elisabeth Selbert, the new main courtroom is the heart of the modernised and renovated court building. Situated at the end of the new traffic artery from Wilhemshöher Allee, the building presents a visual example of the contemporary treatment of former military buildings. It is a symbol of the new content, namely social jurisdiction. Thanks to its location close to the main entrance, the courtroom is easily accessible for participants in proceedings and for visitors.
The newly designed functional areas
The functional areas in the Federal Social Court have been completely restructured because of the functional relationship of the areas to one another, questions of safety, structural considerations for different departments as well as economic and technical considerations regarding the spatial arrangement.
The existing courtroom in the old building (today Jacob-Grimm-Hall) was modernised and a second courtroom (today Weißenstein-Hall) was incorporated into the structure of the old building based on the same principle. The big meeting hall (today Bernadotte-Hall) was also modernised and meeting rooms of different types and sizes were incorporated into the court building.
A large part of the 1st lower level and the rooms on the ground floor house the new central library. This involved complicated statistical retrofitting to increase the load capacity.
All office rooms were completely renovated and redesigned in accordance with current requirements regarding soundproofing, ergonomics and contemporary information and communication technology.
Close to the entrance area, a new cafeteria with proper kitchen facilities was built, which is also open to the public.
Basic support for job seekers
1. Judgment dated 29/04/2015 - B 14 AS 29/14 R
1. An administrative act establishing the infringement of an obligation and a reduction in Volume Two of the Social Insurance Code - Basic support for job seekers (SGB II) may, in any event, be challenged separately if the ruling does not also provide for the implementation of the findings.
2. There are no substantial constitutional concerns barring a reduction in the entitlement to unemployment benefits II by thirty percent of the relevant standard support amount due to the infringement of an obligation.
The plaintiff received unemployment benefits II (“ALG II”) from the defendant Jobcenter since 2009. The defendant invited her to a meeting at the defendant’s offices on 24 October 2011 to discuss her employment situation. After the plaintiff failed to appear at the meeting, the defendant determined that she had failed to report and reduced her ALG II by 10% of the standard support amount (sections 31a et seq. SGB II). Additional invitations were sent for meetings on 4 November, 11 November, 21 November, 25 November, 7 December and 12 December 2011. The plaintiff did not comply with the invitations each of which resulting in a finding of a failure to report and an additional reduction in ALG II.
The plaintiff lodged complaints against all of the notices of action. Some of the complaints were successful before the Social Court (Sozialgericht - “SG”), however the Regional Social Court (Landessozialgericht - “LSG”) dismissed all of the complaints. The plaintiff’s appeal was successful in part. She correctly lodged an action for annulment on a separate basis against the so-called “sanction notices”. Legal grounds were lacking to challenge the first three notices of action, however this was not the case for the next four because a request to report lies within the discretion of the defendant and there were no grounds for the exercise of such discretion in the case of the subsequent identical requests to report. To the extent that the lawful notices of action set reductions that, in some months, cumulatively reached 30% of the relevant standard support amount, the Senate was not able to be sufficiently convinced of the unconstitutionality of the applicable regulations.
2. Judgment dated 20/01/2016 - B 14 AS 35/15 R
Only a right of residence pursuant to the “Act on the residence, employment and integration of foreign nationals in the territory of the Federal Republic of Germany”, which provides for long-term perspectives, justifies an exception to the preclusion of benefits in Volume Two of the Social Code for foreign nationals from member states of the European Union.
The plaintiffs - a mother and her twins born during the time to which the dispute relates - are EU citizens. A process initiated by the Foreigners’ Registration Office to determine the loss of the right of residence and entry was not pursued any further once the plaintiff had described her circumstances. The defendant Jobcenter denied her application for a subsistence allowance pursuant to Volume Two of the Social Insurance Code - Basic support for job seekers (SGB II, Unemployment Benefits II) on the grounds that the plaintiff and her children were precluded from receiving benefits by virtue of section 7 subsection (1) second sentence SGB II.
The Social Court (Sozialgericht - “SG”) ordered the defendant to provide benefits under SGB II and the Regional Social Court (Landessozialgericht - “LSG”) denied its appeal. The preclusion from benefits was not applicable to the plaintiff. On appeal by the defendant, the Federal Social Court (Bundessozialgericht - “BSG”) suspended the ruling against the defendant and dismissed the complaint lodged against it because the preclusion from benefits applied to the plaintiffs. It found that they could neither rely on a material right of the free movement of persons under the Freedom of Movement Law/EU that was not included within the scope of the preclusion from benefits nor a right of residence under the Residence Act that could justify an exception to the preclusion from benefits. However, the plaintiffs were to be granted benefits pursuant to Volume XII of the Social Code (SGB XII) by the welfare authorities who intervened in the appellate proceedings. In this case, the systemic boundary between SGB II and SGB XII does not preclude the applicability of SGB XII. Within the scope of social welfare assistance for foreign nationals (section 23 SGB XII), the plaintiffs first have a right to a decision regarding their request for benefits that is free of abuse of discretion. After six months of actual residence in Germany, their benefits are to be reduced to zero pursuant to SGB XII within the scope of a discretionary reduction under consideration of the constitutional law-related requirements.
3. Judgment dated 23/06/2016 - B 14 AS 30/15 R
Individually specified personal efforts on the part of the eligible beneficiary within the scope of an integration agreement are, in view of the prohibition of coupling, only appropriate under the law applicable to public contracts if support for such measures in the form of benefits from the Jobcenter is specifically and bindingly defined in the integration agreement.
The plaintiff and the defendant Jobcenter concluded an integration agreement pursuant to section 15 Volume Two of the Social Insurance Code - Basic support for job seekers (SGB II). This agreement specified the plaintiff’s job application efforts, however it did not include any provisions regarding the assumption of job application costs by the defendant. The defendant found multiple infringements of the plaintiff’s obligations based on a failure to satisfy his job application efforts and completely suspended his claim to unemployment benefits II (ALG II) for a period of three months (“100% sanction”; sections 31 set seq. SGB II).
The Social Court (Sozialgericht - “SG”) set aside the notices concerned, finding that there had been no violation of an obligation because the integration agreement was invalid as it did not provide a provision governing the assumption of job application costs. The Regional Social Court (Landessozialgericht - “LSG”) rejected the defendant’s appeal finding that provision governing job application efforts are void in an integration agreement that does not include a provision governing the assumption of job application costs. The Federal Social Court (Bundessozialgericht - “BSG”) denied the defendant’s appeal. The sanction notice challenged by the plaintiff is void because the plaintiff was not obligated to make efforts to apply for work as a result of the integration agreement. As a contract under public law this was entirely void by virtue of the so-called prohibition of coupling under sections 58, 55 Volume Ten of the Social Insurance Code - Social welfare administrative procedure and social welfare data protection (“SGB X”) because the personal obligation to apply for jobs did not include any specific and binding specification of support in the form of benefits from the defendant, namely the assumption of job application costs.
1. Judgment dated 04/04/2017 - B 11 AL 19/16 R
An ineligibility period based on insufficient personal efforts is applicable even if the eligible beneficiary makes the personal efforts effectively specified in an integration agreement in a specific case however does not provide verification on a timely basis.
The plaintiff has lodged suit to challenge a notice of action in which the unemployment insurance institution suspended approval for unemployment insurance benefits (“ALG”). It claimed that an ineligibility period due to insufficient personal efforts (section 144 subsection (1) second sentence number 3 Volume Three of the Social Insurance Code - Employment promotion (“SGB III”) prior version, now section 159 subsection (1) second sentence number 3 SGB III) was in effect from 1 to 14 February 2012.; concurrently, the right was reduced for the corresponding period.
The plaintiff was employed as a baker in Luxembourg on a rotating shift basis and lived in Germany. He commuted to work daily. He had to stop working for health reasons. The plaintiff notified the unemployment insurance institution that he was unemployed in November 2011 and applied for ALG. He was granted benefits for a period of 450 days. He concluded an integration agreement with the defendant unemployment insurance institution on 5 January 2012. The parties agreed, inter alia, that the plaintiff was required to actively apply for jobs within 50 kilometres of his residence five times per month commencing January 2012. He was required to document all written, telephonic and personal application efforts on a list and send it to the defendant by mail prior to 31 January 2012. In the integration agreement, the defendant also made commitments to provide benefits to the plaintiff (job-application coaching, job application and travel expenses) and informed him of the legal consequences in the event that he did not verify his personal efforts. After the plaintiff failed to verify job application efforts by 31 January 2012, the defendant suspended approval of ALG between 1 and 14 February 2012 due to the start of an ineligibility period due to insufficient personal efforts (notice of action dated 7 March 2012). Protest, complaint and appeal were all without success.
In his appeal, the plaintiff alleged a violation of section 144 subsection (1) second sentence number 3 SGB III (prior version). He performed the required personal efforts. He argued that the fact that he had merely not verified his activities was insufficient to trigger the ineligibility period.
The Federal Social Court (Bundessozialgericht - “BSG”) denied the defendant’s appeal. The unemployment insurance institution was permitted to suspend the approval of benefits because an ineligibly period commenced on 1 February 2012 due to insufficient personal efforts. This suspended ALG for two weeks. The plaintiff and the defendant specified the plaintiff’s obligations with regard to his personal efforts in an integration agreement dated 5 January 2012. An integration agreement within the scope of unemployment insurance (section 37 subsection (2) SGB III) is an exchange contract under public law (sections 53 et seq. Volume Ten of the Social Insurance Code - Social welfare administrative procedure and social welfare data protection (“SGB X”). Such a contract may contain agreements specifying the inclusion objective, job placement efforts related to the specific person, the eligible beneficiary’s personal efforts and the benefits related to the specific case. The integration agreement concluded on 5 January 2012 is not void. The plaintiff agreed to undertake personal efforts and to provide verification by certain deadlines. These obligations related to reciprocal obligations by the defendant - such as job application coaching and the assumption of job application and travel costs. In such a case, the agreements made are only to be examined as to their invalidity (section 40 SGB X). The plaintiff did not - as he had agreed - provide verification of this personal efforts to the defendant by 31 January 2012. The requirements for an ineligibility period are not to be understood to (solely) relate to undertaking the personal efforts. In point of fact, based on its text, the provision also requires that the unemployed person “verify” his or her personal efforts. A statutory requirement to provide verification does not raise any concerns. The purpose of such a requirement is to be able to examine whether the unemployed person in a particular case has undertaken the agreed efforts. The requirements for an ineligibly period were also satisfied in all other respects.
2. Judgment dated 09/06/2017 - B 11 AL 14/16 R
Right to repeated payment of insolvency benefits (“InsG”) from the Federal Employment Agency upon discontinuation of self-employment during pending insolvency proceedings.
The plaintiff was employed by the owner of a nursing service (hereinafter the “employer”) as a housekeeper starting in October 2010. Insolvency proceedings were opened with regard to his assets on the basis of an inability to pay by order of the Local Court (Amtsgericht - “AG”) Essen on 1 November 2011. The defendant Federal Employment Agency approved insolvency benefits for the plaintiff to cover outstanding wages for the months of September/October 2011.
During the insolvency proceedings, the insolvency administrator released the employer’s self-employment activity from the insolvency restraint pursuant to section 35 subsection (2) Insolvency Code (Insolvenzordnung - “InsO”). Thereafter, the employer continued to operate the nursing service on a reduced scale.
New insolvency proceedings due to an inability to pay that related to the activity that had been released during the first insolvency proceedings, were initiated by order of the AG Essen on 1 August 2012. The defendant Federal Employment Agency denied the additional application for approval of insolvency benefits dated 7 August 2012 in which the continuously-employed plaintiff had asserted that wages for the months of June/July 2012 were still outstanding. Protest, complaint and appeal were all without success.
The Federal Social Court (Bundessozialgericht - “BSG”) denied the plaintiff’s appeal. Pursuant to section 165 subsection (1) first sentence number 1 Third Volume of the Social Insurance Code - Employment promotion (SGB III), employees have right to insolvency benefits if they were employed domestically and had outstanding claims to wages for the preceding three months of the employment relationship following an insolvency event. Among other things, an insolvency event includes the initiating of insolvency proceedings in relation to the assets of the employer.
It is the case that insolvency proceedings were initiated again with regard to the employer’s assets by order of the AG Essen dated 1 August 2012 so that additional insolvency proceedings within the meaning of the InsO were pending. However, this did not result in a (new) employment promotion-relevant insolvency event within the meaning of the social welfare provisions of section 165 subsection (1) first sentence number 1 SGB III. The earlier insolvency event, i.e. the initiation of insolvency proceedings with regard to the assets of the same employer on 1 November 2011 triggers a bar for employment promotional purposes in relation to the occurrence of an additional insolvency event due the continuing inability to pay on the part of the employer. For purposes of assuming the recovery of the ability to pay, it is not sufficient for the employer to continue his business activities and satisfy current obligations. In point of fact, the continued inability to pay should be presumed for as long as the debtor is not able to satisfy his outstanding debts in general due to lack of funds that is more than temporary. With regard to continuing inability to pay, the Regional Social Court (Landessozialgericht - “LSG”) - binding on the Senate - found (section 163 Social Courts Act (Sozialgerichtsgesetz - “SGG”) that the debtor never regained the ability to pay outstanding debts in general prior to the initiation of the second insolvency proceedings.
The scenario presented here, that of a second insolvency proceedings after the release of assets related to the self-employment activity within the scope of the first insolvency proceedings, does not justify a waiver of the requirement for the actual elimination of the inability to pay on the part of the employer. It is true that the insolvency administrator finally and unconditionally waives his powers of administration and disposition under section 80 subsection (1) InsO with regard to the assets from the continued self-employment activities with overall effect as to all objects and assets by virtue of the release declaration. As separate assets that are outside of the scope of the insolvency, income earned by the debtor from self-employment activities after the effective date of the release declaration is fundamentally available solely to new creditors whose claims first arose after the release declaration and not, however, the (prior) insolvency creditors as part of the insolvency estate.
However, a release declaration does not give rise to the mandatory presumption under insolvency law that the employer has regained his ability to pay within the meaning of the rules governing insolvency benefits under SGB III. In pursuit of dual purposes, the release of a self-employment activity within insolvency proceedings is not only intended to provide the debtor to successfully continue his self-employment and an opportunity for an economic fresh start, but rather the insolvency estate is likewise intended to be relieved of additional liabilities from the debtor’s continuing commercial activities. Furthermore, the provisions of section 35 subsection (2) InsO is likewise a consequence of the fundamental protection accorded the debtor’s freedom of profession. Accordingly, as a rule it remains to be seen whether ability to pay may be restored through the continuation of self-employment activities by means of a release. In this case, the employer did not regain the ability to pay according to the factual findings of the LSG, which are binding on the Senate (section 163 SGG), including a consideration of the short period between the two insolvency events. With regard to conducting another insolvency plan process, the Senate already emphasised that it precludes competition between the regular insolvency proceedings and the insolvency plan process to exclusively benefit the insolvency plan process by creating a special benefit for creditors by means of the repeated recognition of claims to insolvency benefits. Any trust that the plaintiff had in the potential restoration of the ability to pay of her employer cannot create a new claim to insolvency benefits because the requirements of section 165 subsection (3) SGB III have not been satisfied. This interpretation and application of section 165 subsection (1) first sentence number 1 SGB III does not conflict with the provisions of Article 2 (1) of Directive 2008/94/EC. The Directive relates to a formal insolvency event and permits the member states to combine several formally independent insolvency proceedings that are materially continuing however factually-related into collective proceedings. However, such a combination is not ordered from a European law standpoint; it does not exist under national law. The European legal rule does not spell out the circumstances under which an insolvency event that has already occurred has concluded for employment promotion purposes in order to be able to presume a new insolvency event.
Law of panel physicians
Judgment dated 30/11/2016 - B 6 KA 38/15 R
Panel physicians may not close their practices in order to exercise pressure on health insurance funds and associations of statutory health insurance physicians to increase remuneration for services provided by panel physicians by refusing to treat insured patients (“physicians’ strike”).
The plaintiff, a doctor serving as a panel physician specialising in general medicine, closed his practice on 10 October 2012 and 21 November 2012 in order to participate in a panel physicians’ “warning strike”. In response, he received an admonishment from the Association of Statutory Health Insurance Physicians (“KÄV”). The KÄV claimed that the plaintiff had intentionally breached his duties as a panel physician given that he breached his obligation to be present in his practice during office hours without there having been permissible grounds for an interruption.
The Stuttgart Social Court denied the complaint lodged in response to the admonition with the explanation that the law of panel physicians did not provide for a right to strike on the part of physicians as grounds to interrupt work at their respective practices; the protection afforded by Article 9 (3) of the Basic Law of the Federal Republic of Germany (Grundgesetz - “GG”) (“freedom of association”) did not apply to panel physicians. In his appeal, the plaintiff asserted that a strike on the part of panel physicians was justified if it was proportionate. As a matter of principle, panel physicians cannot be placed in worse position than employees or civil servants. He claimed that panel physicians also were included within the protected scope of Article 9 (3) GG and Article 11 (1) of the European Convention for Protection of Human Rights and Fundamental Freedoms (“ECHR”). The strike did not endanger patient care or the functionality of the system as such given that sufficient emergency care and/or coverage by colleagues had been provided for.
The panel physician’s appeal was unsuccessful. The defendant’s decision to issue a disciplinary admonition to the plaintiff was found to be lawful. He had intentionally violated his duties as a panel physician by repeatedly closing his practice during office hours in the fall of 2012 in order to participate in a panel physicians’ “warning strike”. Under section 24 subsection (2) of the Admission Regulation for Panel Physicians (“Ärzte-ZV”), panel physicians are obliged to hold office hours at the panel physician’s offices, i.e. to be available to provide patient care as a panel physician during posted office hours (so-called “compulsory presence”). The panel physician is only relieved of this obligation in cases in which the Ärzte-ZV provides for a substitute. However, the scenarios listed there (i.e. section 32 Ärzte-ZV) - including illness, holiday, training - do not include participation in a “warning strike”.
The plaintiff may likewise not claim that he is entitled to “right to strike” that is protected under constitutional or human rights law. The Federal Social Court has left unresolved the question of whether members of the liberal professions, which includes panel physicians, may rely on the rights provided for in Article 9 (3) (“freedom of association”) or Article 11 (1) ECHR or whether a “right to strike” may be derived from the nature of the freedom of occupation (Article 12 (1) GG). Independent of this issue, a right on the part of panel physicians to enforce demands vis-à-vis the statutory health insurance funds by means of “industrial action” has been restricted through the provisions of the law of panel physicians in a manner that does not raise constitutional concerns.
Such provisions directly preclude the rules applicable to care provided by panel physicians - in particular payment for services - from being negotiated between the participating physicians and the statutory health insurance funds and, if applicable, enforced by means of “industrial action”. In designing the law of panel physicians, the legislature created equilibrium between the partially-conflicting interests of patients and service providers in order to thus ensure reliable care to the insured patients on reasonable terms. The material structural elements of the law of panel physicians include a system of collective agreements as well as the transfer of the duty of ensuring care to the KÄV’s.
Within the system of collective agreements, the statutory health insurance funds and the KÄV’s, as representatives for the physicians, occupy the position of counter-parties. Viewed historically, the replacement of separate contracts between physician and health insurance fund by collective agreements services to protect the panel physicians. Within the scope of the legislative framework, the legislature grants the parties to the collective agreements a high degree of autonomy by granting physicians and health insurance funds the right to specify the details for the provision of care by the panel physicians in so-called “standard-setting contracts” as part of their joint self-governance. At the same time however, the legislature also imposes on them the obligation to reconcile their interests by concluding the necessary agreements based on the directive to cooperate (section 72 subsection (1) first sentence Volume V of the Social Insurance Code - Statutory health insurance - SGB V). If the health insurance funds and the KÄV’s are not able to agree as to the contents of a contract at the regional level - or their umbrella organisations at the national level - such a conflict is not conducted by means of industrial action such as a “strike” or “lock-out” but rather is resolved by means of binding decisions by courts of arbitration the lawfulness of which may be reviewed by the courts.
By transferring the duty to ensure the provision of care to the KÄV’s, they are obliged to ensure that care is provided to the degree provided by law and to assume a guarantee vis-à-vis the health insurance funds and their associations for ensuring that care conforms to the statutory and contractual requirements. The individual panel physician is bound by this duty to provide care by virtue of his license and as a member of the KÄV. On the other hand, the duty to provide care also creates responsibly on the part of the KÄV’s and their members to ensure the functionality of the system created by the law of panel physicians and statutory health insurance.
Social compensation law
Judgment dated 16/03/2016 - B 9 V 6/15 R
1. The application deadline for the retroactive grant of benefits has not been missed by no fault of the applicant solely because the applicant comes from a different foreign language and cultural group.
2. Youth Welfare Offices are not integrated into the administrative process for administering benefits based on a theory of divided responsibilities within a functional unit nor are they closely-linked to such administration from a material-legal standpoint.
The requirement of a foreign national who is not familiar with applicable German laws (in this case: the deadline for an application for victims’ compensation under section 60 subsection (1) first sentence Federal Law on War Pensions (Bundesversorgungsgesetz - “BVG”)) to inquire as to their contents doesn’t require anything unreasonable of the applicant even from a constitutional perspective.
The plaintiff, who is from current-day Congo, became the victim of an act of violence within the meaning of the Victims’ Compensation Act (Opferentschädigungsgesetzes - “OEG”) in January 1997. She was granted benefits under the OEG from the date of an application submitted in July 2005. She is now requesting benefits under the OEG for the period prior to the application, namely from January 1997 to June 2005. The defendant Regional Association denied the earlier commencement of benefits as did the Social Court (Sozialgericht - “SG”) and the Regional Social Court (Landessozialgericht - “LSG”). The latter explained, inter alia, that the plaintiff had no right to benefits prior to submitting the application because she - as was also the case for her father who was likewise eligible for benefits - had not been prevented through no fault of her own from applying for victims’ benefits prior to the expiry of the annual deadline that commenced upon the injury.
The Federal Social Court denied the plaintiff’s appeal of the judgment of the LSG because the plaintiff had no entitlement to benefits pursuant to the OEG for periods preceding submission of the application in July 2005. During the period at issue, the plaintiff’s father - as her authorised representative for personal and property affairs - was not hindered through no fault of his own from applying for the benefits concerned prior the expiry of the annual deadline that commenced upon the occurrence of the injury. He was subjectively able to comply with the reasonable duty of care required under the circumstances. Accordingly, other standards do not apply to foreign nationals from a different language or cultural group in this context.
Rights of severely disabled persons
Judgment dated 16/03/2016 - B 9 SB 1/15 R
1. Persons who suffer from Parkinson's disease are entitled to the code “aG” if, due to the severity of their illness, they are permanently unable to move outside of their vehicle without assistance or only with great difficulty.
2. The requirement for constant use of a wheelchair is of material importance in the case of the code “aG” in association with Parkinson's disease.
The comprehensive definition of a disability within the meaning of section 2 of Volume Nine of the Social Insurance Code - Rehabilitation and participation by disabled persons - (SGB IX) requires the inclusion of all physical, mental and emotional impairments in light of the constitutional prohibition of discrimination and based on the direct applicability of international law (Article 3 (3) second sentence Basic Law of the Federal Republic of Germany; Article 5 (2) United Nations Convention on the Rights of Persons with Disabilities).
The plaintiff suffers from Parkinson's disease. In the course of a re-assessment, the defendant state determined a degree of disability of 100 as requested and satisfaction of the requirements for the code H (“Helpless” as well as “G” for mobility in traffic and the right to be accompanied by a companion “B”), however denied the request to find that the satisfactions for the code aG (“exceptional walking disability”) has been met. The Social Court (Sozialgericht - “SG”) sustained the complaint lodged against this decision and as an explanation stated, among others, after evidence gathering had been completed the plaintiff was only able to move with great difficulty in the so-called “off phases”. The court found that the expert who testified explained in an understandable manner that the plaintiff was subject to severe motor skill related impairments for significant parts of the day. In response to the defendant’s appeal, the Regional Social Court (Landessozialgericht - “LSG”) denied the complaint and, in turn, stated that the question of whether conditions of near total immobility could be compared to that of paraplegics need not be addressed. In any event, when compared to seizures, the requirement of permanence had not been satisfied.
The plaintiff’s appeal was unsuccessful. The plaintiff has no right to a finding that the requirements for the code aG had been met. Parkinson's disease is not included among the codified examples of cases where the requirements for the code aG may be presumed as a matter of course. However, Parkinson's disease does belong to those illnesses that may be equated with the codified examples by means of a determination from the treating physician if, due to the severity of their illness, persons affected are permanently unable to move outside of their vehicle without assistance or only with great difficulty.
Federal Act on Parental Allowance and Parental Leave (“BEEG”)
Judgment dated 29/06/2017 - B 10 EG 5/16 R
At issue is whether the plaintiff may demand parental allowance for her daughter born in June 2014 under consideration of holiday allowance and Christmas bonus paid during the assessment period.
Pursuant to her contract of employment, the plaintiff had a right to monthly wage payments equal to 1/14 of the agreed annual remuneration. The once-annual payment of a holiday allowance in May and a Christmas bonus in November were supposed to each equate to 1/14 of agreed annual remuneration. The defendant state granted the plaintiff parental allowance without consideration of the holiday leave and Christmas bonus payments. The state claimed that such wage payments were excluded from the assessment based as “other payments”. In contrast to the Social Court, the Regional Social Court ordered the defendant to pay increased parental allowance considering the holiday leave and Christmas bonus payments. According to the court, holiday leave and Christmas bonus payments were paid twice during the assessment period and thus on a regular basis and were consequently to be characterised as current wages.
The appeal of the defendant state was successful. The plaintiff did not have a right to higher parental for her daughter allowance beyond what had already been determined without consideration of holiday leave and Christmas bonus payments made during the assessment period. The defendant correctly approved parental allowance solely on the basis of current average income from employment - in this case current monthly wages - during the assessment period comprising the twelve calendar months preceding the month of birth. Holiday leave and Christmas bonus payments owed by contract and in fact paid during the assessment period did not comprise part of current wage income but rather so-called “other income” that was irrelevant for purposes of assessing parental allowance. If holiday leave allowance and Christmas bonus are paid each year in May and November respectively they do not comprise repeated payments during the assessment period. The circumstance that holiday leave allowance and Christmas bonus are to be included as part of annual remuneration and each of them correspond to the amount of regular monthly wages does not make them repeated payments. By contrast, they represent event-related one-time payments, in each case prior to the normal holiday leave and Christmas periods.
Asylum Seekers Benefits Act
Judgment dated 12/05/2017 - B 7 AY 1/16 R
The dispute involved a claim to increased benefits under the Asylum Seekers Benefits Act (Asylbewerberleistungsgesetz - “AsylbLG”) for the month of January 2013.
The plaintiff entered the Federal Republic of Germany in 2002. He claimed to be a citizen of Cameroon. He did not provide a passport or passport substitute. The rejection of his application for asylum became final in 2004. Since then, the plaintiff has been permitted to remain on a discretionary basis (temporary suspension of deportation under section 60a subsection (2) first sentence Residence Act (Aufenthaltsgesetz - “AufenthG”)). Through April 2013 the immigration authorities requested that he assist in obtaining a passport or passport substitute at least 19 times; he was interviewed twice by Cameroon’s embassy for this purpose. At both of these interviews, the plaintiff remained silent in response to all questions he was asked. Since 2005, the defendant district has only granted the plaintiff reduced basic benefits under the AsylbLG (cf. section 1a number 2 AsylbLG - prior version; since 1 March 2015: section 1a subsection (3) AsylbLG). For the last month subject to dispute, January 2013, the defendant merely provided him vouchers that could be used to purchase food, clothing and health and hygiene items totalling € 168.12 (so-called “physical subsistence minimum”) in addition to accommodation at shared accommodations in as in-kind benefit, however he was not provided money that could be freely spent (so-called “socio-cultural subsistence minimum”).
The Cottbus Social Court denied the plaintiff’s complaint requesting increased benefits. The “leapfrog appeal” filed by the plaintiff was denied by the Federal Social Court on the following grounds: Pursuant to section 1a number 2 AsylbLG in the version in effect through 28 February 2015, foreign nationals who actually reside within the Federal Republic of Germany, are permitted to stay temporarily under section 60a AufenthG and for whom measures to end their residency cannot be executed on grounds for which they are responsible, only receive benefits under the AsylbLG to the extent unavoidable based on the circumstances of the specific case. Based on the application of this standard, during January 2013 the plaintiff was only entitled to benefits to the extent that they were unavoidable. The plaintiff had no right to additional benefits in order to satisfy personal needs of daily life (so-called “socio-cultural subsistence minimum”). This was the case because he had prevented the execution of his final deportation order only by virtue of his failure to cooperate in obtaining a passport and thus deliberately violated his duties of cooperation under immigration law following conclusion of the asylum proceedings. Under these circumstances, benefits below those necessary for basic necessities under section 3 AsylbLG may be provided according to the determinations of the legislature.
Constitutional law does not require a different interpretation. Section 1a number 2 AsylbLG, prior version, does not violate the fundamental right to providing a subsistence minimum that is in line with human dignity (Article 1 (1) in conjunction with Article 20 (1) Basic Law of the Federal Republic of Germany). Constitutional law does not preclude the legislature from linking the unrestricted grant of benefits to ensure a subsistence minimum under the AsylbLG to complying with obligations applicable under immigration law. The legislature is exercising its available discretion on a constitutional basis in section 1a number 2 AsylbLG, prior version. This does not result in the qualification of the right to benefits (on a standardised basis) based on immigration policy. On the contrary, the limitation on benefits is tied to abusive behaviour for which the eligible beneficiary is at fault and which the beneficiary may cease at any time - thus restoring unrestricted benefits. Furthermore, section 1a number 2 AsylbLG, prior version, requires that the particular circumstances of a given case be taken into consideration. In light of this, benefits may likewise be reduced over a period of years because the plaintiff was aware of his opportunities to avoid the reduction in benefits from the outset.