Bundessozialgericht

Selected Decisions

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.

Employment promotion

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.

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