Basic benefits for job-seekers – Exclusion of benefits for foreign nationals staying for the purpose of seeking work – Union citizens – Other right of residence – Free movement of workers – Continuing effect of worker status in case of employment for longer than 1 year – No addition of periods of employment in case of interruption of several months
The plaintiff was born in the Federal Republic of Germany in 1992 and is a citizen of the Hellenic Republic. In 1997, he left for Greece. On 1 February 2016, the applicant re–entered the Federal Republic of Germany, where he has been registered since then. At least between 27.4.2016 and 31.12.2016, between 15.8.2017 and 30.9.2017 and between 1.4.2018 and 31.7.2018, the plaintiff was employed. He was then unemployed again. On 24 January 2019, the plaintiff concluded an employment contract for an indefinite period of time with a working time of ten hours per month and a monthly remuneration of EUR 100; he performed this work approximately every fortnight for five hours each.
The defendant Jobcenter refused to grant benefits in February 2019. The plaintiff was excluded from benefits under the Second Book of the German Social Code – Basic benefits for job-seekers (SGB II) because he had a right of residence solely for the purpose of seeking employment. In April 2019, the applicant applied for a review of the rejection decision. The defendant rejected this request. The Social Court dismissed the subsequent claim, which was limited to the period from March to December 2019. The Regional Social Court dismissed the appeal.
The Federal Social Court overturned the decision of the Regional Social Court and referred the case back to the Regional Social Court for a new hearing and decision. However, the Regional Social Court rightly decided that the plaintiff was excluded from benefits under SGB II because he had, at most, a right of residence for the purpose of seeking employment. In particular, the plaintiff did not have a right of residence as a worker under Section 2 (2) Number 1 of the Act on the General Freedom of Movement for Citizens of the Union (Freizügigkeitsgesetz/EU). The plaintiff only worked ten hours a month, spread over two days a month of five hours each. This activity thus presents itself as completely subordinate and insignificant, and does not establish employee status. Nor can the plaintiff invoke a continuing right of residence under Section 2 (3) Sentence 1 Number 2 of the Freedom of Movement for Citizens of the Union/EU. A Union citizen’s continuing right of residence as a worker in the event of involuntary unemployment after more than one year of employment cannot, in the event of interruptions, in any case be based on periods of employment that precede a period of unemployment lasting longer than six months. In the present case, this means that only activities of the plaintiff with a total duration of less than one year were to be taken into account.
It is also compatible with the basic right to guarantee a minimum subsistence level worthy of human life (Article 1 (1) in conjunction with Article 20 (1) of the Basic Law) that foreign nationals who have no right of residence or only a right of residence for the purpose of seeking work, and for whom it is possible and reasonable to leave the Federal Republic of Germany, are excluded from benefits under the basic benefits for job-seekers. The legislature has established a regulatory regime that is in conformity with the constitution with Section 7 (1) Sentence 2 Number 2 Letters a and b of Book II of the German Social Code and Section 23 (3), (3a) of Book Twelve of the German Social Code – Social Assistance (Book XII of the Social Code) in the version in force since 29 December 2016. In contrast to the persons covered by the Asylum Seekers’ Benefits Act, there is, in principle, no reason to doubt the reasonableness of their departure in the case of EU citizens and thus also the plaintiff. If a departure is not possible or not reasonable due to special circumstances of the individual case, the hardship provision of Section 23 (3) Sentence 6 SGB XII applies.
However, the judgement of the Regional Social Court had to be set aside and the case had to be referred back to the Regional Social Court so that it could summon the locally competent social welfare agency and, if necessary, order it to pay benefits. In view of the case law of the Federal Social Court on Section 23 SGB XII, old version, there is the possibility that the social welfare agency is liable to pay benefits on the basis of Article 1 of the European Welfare Convention. Due to the lack of an invitation to attend and the right to be heard to be granted to the person to be invited, the Federal Social Court cannot decide at this point in time whether this case law is to be applied to Section 23 of the Social Code Book XII in the version relevant here. In addition, the Regional Social Court has so far left open whether the plaintiff has a right of residence for the purpose of seeking work and, therefore, falls within the personal scope of application of Article 1 of the European Welfare Convention. The obligation to be summoned is not precluded by the fact that the present case is a proceeding in favour of the court pursuant to Section 44 of the Tenth Book of the German Social Code – Social Administrative Procedure and Social Data Protection (SGB X). In such a constellation, too, the procedural–economic purpose of the so-called “non-genuine necessary supplementary summons” (“unechte notwendige Beiladung”) must be taken into account.
Original German version of the judgment: B 4 AS 2/21 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.
Original German version of the judgment: B 14 AS 30/15 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.
Original German version of the judgment: B 14 AS 35/15 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.
Original German version of the judgment: B 14 AS 19/14 R
Calculation of short–time allowance – Net difference in remuneration – Consideration of lump–sum deductions for wage tax and solidarity surcharge – Inadmissibility of fictitious deduction in the case of genuine cross–border commuters and lack of wage tax liability in Germany – Conformity with European law
If a genuine cross–border commuter is not subject to tax liability in Germany under a double taxation agreement, no lump–sum deduction for wage tax and solidarity surcharge may be taken into account when assessing the short–time allowance due to the lack of a wage tax class as a wage tax deduction feature.
The plaintiff – a limited liability company with its registered office and operations in Germany – received short–time allowance for the months of March and April 2020 for a worker employed by it who resided in France. This was calculated by the defendant labour administration, taking into account a fictitious wage tax deduction. This deduction was also to be made in the case of cross–border workers who were exempt from wage tax liability in the Federal Republic of Germany on the basis of a double taxation agreement, even if the short–time allowance paid under German law was taxed in France. Cross–border workers from the member states of the European Union would have to be treated in the same way as German workers in the assessment of short–time allowance.
The legal action and appeal, directed at short–time allowance without taking into account the fictitious wage tax deduction, were unsuccessful. There was no double taxation because the calculation under section 153(1) of the Third Book of the German Social Code – Promotion of Employment (SGB III) was not a form of taxation. In her appeal to the Federal Social Court, the plaintiff asserted a violation of Section 153 (1) SGB III and discrimination that was impermissible under European law.
The plaintiff’s appeal was successful in the sense that the appeal judgement was set aside, and the case was referred back to the Regional Social Court. The Senate could not decide whether the plaintiff’s employee in question was entitled to higher short–time allowance than that granted by the defendant for lack of sufficient findings by the Regional Social Court. There is a lack of findings on the operational and personal requirements for short–time allowance. In addition, the findings on the gross remuneration that the employee would have earned during the period of lost work (target remuneration) and actually earned (actual remuneration), which are indispensable for assessing the amount of the short–time allowance, are missing. Only when the Regional Social Court has made up for these findings in the (reopened) appeal proceedings, can the question arise as to which flat–rate net remuneration is to be used as a basis for calculating the net remuneration difference that is decisive for the amount of the short–time allowance. In this respect, in the case of a tax exemption as a cross–border commuter, there is no tax liability in Germany. According to its wording, as well as its meaning and purpose, Section 153 (1) SGB III does not provide a basis for assigning tax class I. There is no loophole in the law. In the absence of a tax class to be assigned, the deduction amount resulting from Section 153 (1) Sentence 2 Number 2 SGB III is EUR 0 in this case.
The principle of equal treatment laid down in Article 45 of the Treaty on the Functioning of the European Union (TFEU) and Article 7 of Regulation (EU) 492/2011 does not require equal treatment of cross–border workers with workers residing (and working) in Germany. On the contrary, equal treatment would possibly constitute indirect discrimination because cross–border commuters who are not subject to wage tax in Germany would be treated, to their disadvantage, as persons subject to wage tax in Germany, and would thus de facto be subject twice to income / wage tax law – in this case in France and Germany – with the same remuneration.
Original German version of the judgment: B 11 AL 6/21 R
Assessment of unemployment benefit in case of cross-border facts
With its judgement of 23 January 2020, the European Court of Justice decided on the order for referral of the 11th Division of the Federal Social Court of 23 October 2018 (B 11 AL 9/17 R) regarding the assessment of unemployment benefit for an employee, who was employed in Switzerland for many years and subsequently for just under three weeks in Germany by taking Article 62 of Regulation (EC) 883/2004 into consideration (compare with the activity report of the Federal Social Court for 2018, page 21).
Following the judgement of the European Court of Justice the 11th Division of the Federal Social Court decided that the amount of the unemployment benefit from the German unemployment insurance will be solely calculated on the basis of the not yet settled wages of the plaintiff from the brief domestic instance of employment (judgement of 17 September 2020 - B 11 AL 1/20 R). As opposed to that which is envisaged according to the German regulations for the assessment of the unemployment benefit, no fictitious remuneration can be taken into account. According to the case law of the European Court of Justice relating to Article 62 Para. 1 Regulation (EC) 883/2004 the wage not yet settled upon exit of the plaintiff from his brief German employment is to be taken into account without exception. For this reason alone a corresponding application of Article 62 Para. 3 Regulation (EC) 883/2004 cannot be taken into consideration for cross-border commuters. Accordingly - in case of a lack of employment in the domestic country – the remuneration from the employment in Switzerland would have to be used as a basis.
Following the decision of the European Court of Justice the 11th Division assumed that the non-inclusion of high earnings in Switzerland is compatible with overarching EU law. The consideration without exception of the last remuneration of an instance of employment in the member state of residence can indeed lead to unfavourable results if the person concerned - as in this case - previously earned substantially more in another member state than in the member state that is subsequently responsible for unemployment support. Depending on the possibilities for earnings in the last member state of employment and residence however contrary results are also possible.
Article 62 Regulation (EC) 883/2004 ranges in the further leeway for discretion of the Union legislator with the design of the right to freedom of movement. The regulation may be supported on aspects of practicability, because the administration work should be minimised in relation to a duration of unemployment support that is limited according to its purpose. With its decision the European Court of Justice emphasised that especially unemployment benefits were aimed at facilitating the mobility of the unemployed persons. It should be ensured that the persons concerned receive benefits with which as far as possible the employment conditions and in particular the remuneration are taken into account which these would have achieved according to the legal regulations of the member state of their last employment. The circumstance that no unemployment support could be paid to the Plaintiff according to the periods spent in Switzerland, is a direct consequence of the only limited possible payment export in the coordination law of the unemployment support. Binding Union law and therefore also the content of the Agreement on the Free Movement of Persons with Switzerland, due to the lack of harmonisation on Union level, cannot guarantee that the relocation of a professional activity to another member state is always neutral with regard to social security.
Original German version of the judgment: B 11 AL 1/20 R
Only decisive for the employment of seriously disabled persons are domestic jobs owing to employment relationships, which as a rule are subject to German employment contract statutes.
It is disputed whether the sued Federal Employment Agency should be allowed to issue an assessment notice on the basis of Section 80 Para. 3 Ninth Book German Social Insurance Code [Neuntes Buch Sozialgesetzbuch -SGB IX] old version, because the Plaintiff as an employer is obligated to employ seriously disabled persons and did not fulfil its reporting obligation arising from Section 80 Para 2 SGB IX old version. Such assessment notices serve to calculate the scope of the employment obligation, the monitoring of its fulfilment and the levy of the countervailing charge. The Plaintiff is a stock corporation under Polish law operating in the construction industry with the headquarters in Poland and a branch in Germany. It concluded contracts for work and services with German companies, for the fulfilment of which its employees worked in Germany. The Defendant determined, by notification, the data that were necessary for the calculation of the scope of the employment obligation, for monitoring its fulfilment and the countervailing charge for the calendar year 2013. Following the legal action, the social court revoked the notification in the form of the objection notification. The State Social Court dismissed the appeal.
Following the appeal of the Defendant the Federal Social Court revoked the judgement of the State Social Court and referred the matter back to this court for a renewed hearing and decision. The Federal Social Court could not finally decide whether the Plaintiff was an employer liable to employment and had not fulfilled its reporting obligation, which is the prerequisite for the fact that the Defendant was allowed to issue an assessment notice according to Section 80 Para. 3 SGB IX old version. It can be derived from the legal system that only those employers are obliged to submit reports, which are subject to the employment obligation according to Section 71 Para. 1 Sentence 1 SGB IX old version. Whether the Plaintiff was obliged to employment in 2013 depends on whether it had jobs within the meaning of Section 73 Para. 1 SGB IX old version. The Federal Social Court decided that the standard only covers domestic jobs, the employment obligation according to Section 80 Para. 3 SGB IX old version thus only applies to such jobs. The prerequisite for the establishment of a domestic job is the actual employment in the domestic country and that the underlying legal relationship was established for the scope of validity of the SGB IX. The latter is in any case to be assumed if the employment relationship is subject to German contractual statutes.
The regulations of the SGB IX serve the participation of seriously disabled persons and should promote their integration into the labour market by steering behaviour. The purpose of this law can only be pursued and promise success within the spatial boundaries of the own sovereignty. The Federal Social Court in particular determined that the affiliation to the foreign labour market in such case structures is, as a rule, connected through Article 8 Para. 2 Regulation (EC) 593/2008 of the European Parliament and of the Council of 17 June 2008 through the law that is to be applied to contractual obligations (Rome I Regulation) with a reference to the foreign employment contract statute. This applies both to the temporary project-related secondment of employees, who were deployed at a foreign employer in the home country already, as well as to those who are solicited by this employer in the home country for a concrete project in Germany and are not further employed after this. Whether a secondment existed in this manner must be examined by the State Social Court based on the respective contractual agreements of the Plaintiff with its employees and involve and evaluate the contractual documents for this purpose.
Original German version of the judgment: B 11 AL 1/19 R
Seasonal-short-time work benefit is not to be paid for a loss of work that occurred overseas.
The Plaintiff is a construction company that is based in Germany, which carries out work based on contract work on construction sites of contractors. In February 2012, it had its posted workers carry out formwork, concrete and shell construction work on one construction site in Germany and Luxembourg and five construction sites in Austria, and in March 2012 on one construction site in Germany and Luxembourg. Following corresponding applications of the Plaintiff, the Defendant approved for seasonal –short-time work benefits for February 2012 and March 2012 as well as additional expenses winter benefit and reimbursed social insurance contributions owing to loss of work with the employees deployed in Germany. The Defendant rejected the further applications for corresponding benefits for the employees employed on foreign construction sites. For substantiation it stated that loss of work on foreign construction sites owing to the territorial principle do not substantiate any claims for seasonal-short-time work benefits and supplementary benefits. Action and appeal remained unsuccessful.
The Federal Social Court dismissed the appeal. The claim for seasonal-short-time work benefits is opposed by the fact that this is not to be paid for a loss of work, which has occurred overseas. A restriction to the granting of seasonal-short-time work benefit to loss of work that has occurred in Germany can be derived from an interpretation of Section 175 Third Book German Social Insurance Code [Drittes Buch Sozialgesetzbuch -SGB III] old version according to the history of how it occurred by taking the meaning and purpose of the regulation and systematic connections into consideration. Section 175 SGB III old version as well as the successor regulation Section 101 SGB III pursue the economic policy purpose to counteract an increase in unemployment in the winter months, thus to stabilise employment relationships and therefore relate to the German domestic market. The stipulation of the period of subsidisation corresponds with the German weather conditions and the extensive control and examination activity of the welfare authority requires a restriction to the domestic country. With the abolishment of on Section 216 Para. 1 SGB III, the legislator particularly intended to exclude workers for the duration of the overseas restriction from receiving substitute remuneration payments due to weather conditions. The special interlinking between benefits of the work promotion in the form of the seasonal-short-time work benefit with industry-own, supplementary payments financed by re-allocation constitutes a closed system of supplementary individual benefits, which does not allow any supplementary interpretation.
This result in particular is not opposed by the European Community law. The requirement for equal treatment from Article 4 Regulation (EC) 883/2004 is not breached. All employees of the building industry with an employment relationship in Germany are subjected to the
exclusion of seasonal-short-time work benefit overseas, irrespective of whether they are a national or an EU foreigner. The secondment of employees to a foreign country is no case of the freedom of movement of workers, Article 45 Treaty on the Functioning of the European Union (TFEU), but the freedom to provide services of the employer, Article 56 TFEU. This is however not breached, because the access to the market of participants in business from other member states is not impaired. Claims of the employees of the Plaintiff to a subsidy-winter benefit and additional expenses-winter benefit are therefore excluded, as well as own claims of the Plaintiff for reimbursement of the contributions to the social insurance that are to be borne by it alone. The territorial principle according to Section 30 First Book German Social Insurance Code [Erstes Buch Sozialgesetzbuch -SGB I] is not applicable. As opposed to intervening state behaviour overseas ,the field of application of the right to benefits is oriented to the interpretation of the respective factual standard.
Original German version of the judgment: B 11 AL 11/18 R
Insurance obligation during the child raising period according to the Third Volume German Social Insurance Code [Drittes Buch Sozialgesetzbuch -SGB III] can also be substantiated by Austrian previous insurance periods.
The object of dispute is a claim for unemployment benefit of the German Plaintiff from 1 April 2013. Since 2006 she has lived in Austria, was initially employed there and after the birth of her son was on parental leave. In January 2011 the family moved back to Germany. For the period of time from 27 February 2012 to 7 March 2012 the Plaintiff received a leave settlement/compensation for leave from her Austrian employer, which was paid out retroactively. It concerns an insurance period that is subject to contributions within the meaning of the Austrian unemployment insurance. In Germany the Plaintiff initially claimed a further child raising period between 8 March 2012 and 30 September 2012. From 1 October 2012 to 31 March 2013, she was employed subject to insurance in Germany for a limited period of time. The sued Federal Employment Agency rejected the claim for unemployment benefit, because the child raising period from 8 March 2012 to 30 September 2012 is not to be taken into consideration with the calculation of the expectant entitlement times. In the first instance the Defendant was sentenced to grant unemployment benefit as per application. The state social court, on the other hand, did not calculate the child raising period from 8 March 2012 to 30 September 2012 as an expectant entitlement time, because the leave substitute payment only substantiated an obligation for insurance according to Austrian law. According to the SGB III however, previous employment in Germany subject to insurance is necessary for the consideration of child raising periods as an eligibility period.
The Federal Social Court revoked the judgement of the state social court and dismissed the appeal of the Defendant against the judgement of the court of the first instance. Within the framework deadline of 1 April 2011 to 31 March 2013 the employment relationship subject to insurance in Germany from 1 October 2012 to 31 March 2013 is to be taken into consideration, Section 25 Para. 1 Sentence 1 SGB III (182 days). The Austrian leave remuneration between 27 February 2012 and 7 March 2012 (ten days) is to be included as a further period of a work relationship that is subject to insurance by taking Article 61 Para. 1 Sentence 1 Regulation (EC) 883/2004 into consideration. The fact that the Plaintiff in Austria according to Article 61 Para. 1 Sentence 1 Regulation (EC) 883/2004 had times that are to be taken into consideration by the Defendant, can be derived from the certificate submitted by the Plaintiff E 301 of the responsible body of the Austrian unemployment insurance. This has a binding effect for the Federal Employment Agency and can only be corrected by way of the proceedings envisaged in the Regulation (EC) 883/2004 and the Regulation (EC) 987/2009. The Federal Social Court determines that therefore the subsequent child raising period between 8 March 2012 and 30 September 2012 (a further 206 days) is also to be taken into consideration, without which no expectant entitlement time of twelve months pursuant to Section 142 Para. 1 Sentence 1 SGB III would have been fulfilled. The Plaintiff only fulfils the eligibility period by consideration of this period of time as time that is subject to insurance according to Section 26 Para. 2a Sentence 1 SGB III. The Austrian leave remuneration in the period of time from 27 February 2012 to 7 March 2012 also substantiates an insurance obligation according to German law directly before the child raising period (8 March 2012 to 30 September 2012) so that the parental leave time is also to be taken into consideration.
Original German version of the judgment: B 11 AL 15/18 R
Periods of time from the transfer of business are only protected by insolvency benefit in the event of insolvency of the buyer.
The parties are disputing over a claim for insolvency benefit in the period of time from 12 December 2014 to 31 January 2015. Since August 2014 the Plaintiff worked for her former employer. Applications for the opening of insolvency proceedings over the employer’s assets were rejected by the County Court with court orders of 13 July 2015 due to insufficient assets. Months before already -with the letter of 12 December 2014 -the employer had terminated the employment relationship of the Plaintiff with the consent of the provisional insolvency administrator as of 31 January 2015. The sued Federal Employment Agency only approved insolvency benefit, following the application that was filed in time, for the period of time from 1 November 2014 to 11 December 2014. After this the business operation was transferred to another business owner and no insolvency benefit can be paid. The previous instances sentenced the Defendant to approve further insolvency benefit for the Plaintiff for the disputed period of time.
The Federal Social Court revoked the judgement of the state social court and referred the matter back to it for a renewed hearing and decision. Claim for insolvency benefit only exists for those claims under labour law, which fall in the insolvency benefit period, Section 165 Para. 1 Sentence 1 Third Book German Social Insurance Code [Drittes Buch Sozialgesetzbuch -SGB III]. The position of this period of time is determined, besides the time of the insolvency event, according to the last three months of the employment relationship with the employer before the occurrence of the insolvency event. In this case the former employer terminated the employment relationship as of 31 January 2015 and the insolvency benefit period ended for this reason already before the actual insolvency event, resulting in the rejection of the application for the opening of the insolvency proceedings according to Section 165 Para. 1 Sentence 2 Number 2 SGB III. In the event of a transfer of business the insolvency benefit period ends, despite a continuously existing employment relationship. This is concluded from Section 613a German Civil Code [Bürgerliches Gesetzbuch]. With the transfer of business, the business buyer is the new employer and the prerequisites of Sections 165 et seqq. SGB III must be present at the buyer itself. If the employment relationship has been terminated, it shall pass to the buyer and will continue until the termination date. A transfer will only not take place if the employee concerned objects, Section 613a Para. 6 German Civil Code. The Plaintiff did not however object to the transfer of her employment relationship. The state social court must therefore determine whether a transfer of business took place. If this fact can no longer be clarified this will be for the expense of the sued party, the Federal Employment Agency. If it cannot be determined that a transfer of business took place, the Defendant will bear the objective burden of proof for this (burden of determination).
Original German version of the judgment: B 11 AL 3/18 R
1. Is Article 62(1), in conjunction with Article 62(2), of Regulation (EC) No 883/2004 to be interpreted as meaning that, when a worker becomes unemployed, the competent institution of the Member State of residence must base the calculation of the benefits on the ‘salary’ that the person concerned ‘received’ in respect of his/her last activity as an employed person in the territory of that institution even in the case where, under the national legislation on unemployment benefits administered by the competent institution, that salary cannot be taken into account due to insufficient duration of receipt and a notional assessment of the benefits is provided for as an alternative?
2. Is Article 62(1), in conjunction with Article 62(2), of Regulation (EC) No 883/2004 to be interpreted as meaning that, when a worker becomes unemployed, the competent institution of the Member State of residence must base the calculation of the benefits on the ‘salary’ that the person concerned ‘received’ in respect of his/her last activity as an employed person in the territory of that institution even in the case where, under the national legislation administered by the competent institution, that salary may not be included as a basis for calculating the benefits in the reference period because it was not processed timeously and a notional assessment of the benefit is provided for as an alternative?
The questions presented to the European Court of Justice arise in the case of a German national who was employed for several years in Switzerland and who commuted daily from his place of residence in Germany. Following the end of his activity in Switzerland as a tool set-up worker from 1 July 1990 to 30 November 2014, he pursued gainful employment in Germany for three weeks. The employer only settled the remuneration resulting from this employment once the employment relationship had ended.
The sued German employment service assumed that the amount of unemployment benefits, for which the plaintiff had filed an application, needed to be determined on the basis of a notional assessment because the plaintiff was unable to furnish proof of the minimum requirement in accordance with German law of 150 days with an entitlement to unemployment benefits within the assessment period that was extended to two years. The notional assessment in accordance with the national regulation of section 152 subsection (1) of volume three of the Social Insurance Code - Employment Promotion - which is independent of the individually generated remuneration, is allocated on a flat rate basis to remuneration that is conditional on a reference figure in social security (Section 18 of volume four of the Social Insurance Code - Joint Requirements for Social Security (“SGB IV”)). This is aimed at simplifying the benefits law. The reference figure within the meaning of the requirements for social security is determined in principle in accordance with the average remuneration of the statutory pension insurance in the previous calendar year (Section 18 subsection (1) of volume four of the Social Insurance Code - Joint Requirements for Social Security). The development of the gross wages and salaries is authoritative for such an average remuneration (section 69 subsection (1) sentence 1 number 1 of volume six of the Social Insurance Code - Statutory Pension Insurance (“SGB VI”)).
The Social Court and the Regional Social Court decided that the unemployment benefits are to be calculated by way of taking into account Article 62(1) of Regulation (EC) No 883/2004 exclusively in accordance with the plaintiff’s (higher) remuneration resulting from the last employment in Germany. Pursuant to Article 62(1) of Regulation (EC) No 883/2004, the relevant institution of a Member State, whose legislation forms the basis for the amount of the former remuneration or income from gainful employment, in this case, therefore, the defendant, takes into account exclusively the remuneration or income from gainful employment that the affected person received during their last employment or non-salaried occupation in accordance with such legislation. The regulation also applies if, pursuant to the legislation that applies to the relevant institution, a certain reference period is stipulated to determine the remuneration to be used as a basis on which to calculate the benefits and the affected person was subject to the legislation of another Member State during such a period or a part thereof.
The 11th Senate has doubts about the interpretation of the Community law provision of Article 62(1) of Regulation (EC) 883/2004, and believes clarification is required regarding the issue of a decision in the main proceedings by the Court of Justice of the European Communities. Doubts about the narrow interpretation of Article 62 of Regulation (EC) 883/2004 by the Social Court and the Regional Social Court arise, above all, from the principle of the European social law co-ordination, on the basis of which harmonisation of the legal systems of the Member States is not specified. The provisions of the co-ordination law do not affect the material and formal differences between the social security systems of the individual Member States and, as a result, between the claims of the insured persons there. Taking into account an interpretation of Article 62 of Regulation (EC) 883/2004, in the case of which not only its wording but also the correlation and the goals it pursues are to be taken into account, the Senate sees this regulation in conjunction with Article 61 of Regulation (EC) 883/2004. Accordingly, the employment and insurance periods completed in the various Member States are added together, including in the case of only brief employment in the respective Member State, by the institution of such a Member State that is, therefore, simultaneously responsible for paying benefits. Given this combination of circumstances, Article 62 of Regulation (EC) 883/2004 is to facilitate the recourse of the Member States to the national assessment requirements intended by the Union legislator for the sake of simplifying administration including if there is no sufficiently long reference period for calculating the respective unemployment benefits arranged by a nation.
In view of this, Article 62 of Regulation (EC) 883/2004 could also be understood to mean that the term "received remuneration” is to be seen within the meaning of normal linking for the co-ordination and essentially does not affect the respective, national, calculation regulations of the Member States. Therefore, the Senate is inclined, in relation to the first presented question, not to take into account all “unemployment benefits” received in the reference period but rather only those which are to be incorporated in the reference period in accordance with the additional national legislation of the relevant Member State. Insofar, an interpretation of Article 62 of Regulation (EC) 883/2004, on the basis of which all remuneration is to be incorporated, will probably extend beyond the regulatory purpose of Article 62 of Regulation (EC) 883/2004.
Original German version of the judgment: B 11 AL 9/17 R
1. Residence abroad (including close to a border) is an obstacle to a claim to unemployment benefits if, during employment in Germany for which contributions were due, residence has been transferred abroad and a claim to unemployment benefit exists in the other EU Member State under coordinating European social law.
2. This entitlement to benefits existing in the other EU member state excludes a teleological interpretation of section 30 German Social Code (SGB) I on the scope of application of the Social Code with the waiver of a domicile or habitual residence in Germany
The dispute involved unemployment benefits from the German unemployment insurance scheme for the period from 1.2. to 4.8.2014.
The plaintiff, who had been employed in N. in Germany subject to compulsory insurance since 2001, moved to Switzerland in June 2012. Approximately one and a half years later, she terminated her employment in Germany through a termination agreement with payment of a severance payment as of 31 December 2013. The unemployment insurance fund of the Canton of Bern in Switzerland did not provide the plaintiff with “unemployment compensation” until 12 September 2014 and refused benefits from the Swiss unemployment insurance fund for the preceding period in light of benefits from the former employer.
The plaintiff had already registered as unemployed in Germany with the defendant Federal Employment Agency and applied for unemployment benefits. The defendant rejected unemployment benefits from the German unemployment insurance fund on the ground that the applicant was not resident in Germany.
The first legal action and appeal were unsuccessful. The Federal Social Court dismissed the plaintiff’s appeal. A claim to unemployment benefits cannot be based directly on the provisions of the Third Book of the Social Code - Promotion of Employment (SGB III), because section 30 (1) of the Social Code - General Part - (SGB I), which applies to all parts of the Social Code, restricts the scope of application of the entire Social Code to persons who have their place of residence or habitual abode within the territorial scope of the SGB I, i.e. in Germany. The plaintiff is not such a person because, during the period in question, she had both her domicile and habitual residence in Switzerland.
Nor does the reservation in favour of supranational and intergovernmental law in section 30 (2) SGB I give rise to any claim to unemployment benefits under German law. The plaintiff cannot derive any right to unemployment benefits under German law from the provisions of EC Regulation (EC) No 883/2004, which apply here because of the agreements between the European Union and Switzerland. As a “genuine” frontier worker within the meaning of Article 1(f) of Regulation (EC) No 883/2004, they receive unemployment benefits in accordance with Article 65 of Regulation (EC) No 883/2004 exclusively under the legislation of the Member State of residence. The Court of Justice of the European Communities (ECJ) has already ruled in its judgement of 11 April 2013 (C-443/11 <Jeltes>) that the amended version of Regulation (EC) No 883/2004 is no longer to be interpreted in the sense of the Miethe judgement of the ECJ (judgement of 12 June 1986 /C-1/85 <Miethe>) with a right for the genuine frontier worker to choose between benefits from the State of residence and those from the State of employment. Since the plaintiff had been resident in Switzerland since May 2013 at the latest and at the same time could claim benefits from the Swiss unemployment insurance, this - regardless of the differences in unemployment benefits under both legal systems - entails a change in applicable law in favour of Swiss law.
The exclusion from the German unemployment insurance scheme does not give rise to any serious constitutional objections in this specific case. With regard to Article 3 (1) of the Basic Law for the Federal Republic of Germany, the exclusion of benefits does not conflict with the Chamber decision of the Federal Constitutional Court of 30 December 1999 (1 BvR 809/95), according to which the legislature is not permitted to change the connecting factor between the levying of contributions and the entitlement to benefits without substantial objective reasons. That decision, with a restrictive interpretation of section 30 (1) SGB I, took account of a different starting position, because the plaintiffs there could not have received any unemployment benefits without a constitutional interpretation of section 30 (1) SGB I. They were not included in the scope of protection of European coordination law with claims deriving from it. On the other hand, under the agreements between the European Union and Switzerland, the plaintiff could claim unemployment benefits in her State of residence in accordance with Swiss law.
Original German version of the judgment: B 11 AL 21/16 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.
Original German version of the judgment: B 11 AL 14/16 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.
Original German version of the judgment: B 11 AL 19/16 R
The interest in gaining a competitive advantage as a foreign enterprise in the target state (here: Germany) through the agreed continuation of foreign law by means of lower social security contributions over other enterprises and employees operating in the target state and subject to the social security system there is not a sufficient reason for extending the secondment by concluding an exceptional agreement under European law.
In principle, companies from the European Union are not entitled to the conclusion of exceptional agreements under which the social law regulations at the company’s registered office also apply to its employees who have been working in Germany for many years. However, the rejection of an agreement is subject to judicial review.
The plaintiff, a Polish company, deployed workers on construction sites in Germany for the years 2005/2006 as well as other years. It applied to the competent Polish body (ZUS) for a retroactive derogation agreement between ZUS and the defendant Deutsche Verbindungsstelle Krankenversicherung - Ausland (DVKA) pursuant to Article 16(1) of Regulation (EC) No 883/2004 with a view to the application of Polish law: Based on this, two or more Member States, the competent authorities of those Member States or the bodies designated by those authorities may, by common agreement, provide for derogations from Articles 11 to 15 of Regulation (EC) No 883/2004 (formerly Article 17 of Regulation <EEC> No. 1408/7) in the interests of certain persons or groups of persons.
Social security schemes in this case were still governed by Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community. This Regulation has been replaced with effect from 1 May 2010 by Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems. The following principles apply: workers are subject to the social security legislation of only one Member State of the European Union, usually the Member State in which they are employed. Unless the Regulation provides otherwise, this shall also apply where they reside in the territory of another Member State or where their employer or the undertaking which employs them has its head office in the territory of another Member State. Special rules apply to cases of posting of workers to another EU country: workers posted by their employer to perform work in another EU Member State continue to be subject to the legislation of the sending state (employer’s place of business), provided that the expected duration of this work does not exceed twelve months or, as of 1 May 2010, 24 months and that they do not replace another worker for whom the posting period has expired. Irrespective of the foreign application of social tariffs in the case of secondments that is strictly limited in time, two or more Member States or the competent authorities of such States may agree to exceptions to the basic provisions of European law in the interests of certain workers or groups of workers.
The Federal Social Court dismissed the complaint against the rejection of the agreement by the DVKA. It is true that the rejection of an exception agreement must be subject to judicial review because of the constitutional requirement of effective legal protection. However, there was no overriding interest on the part of the employees which could possibly justify ordering DVKA to conclude the sought-after agreement. In addition, the requirement for a focal point (more than 25%) of the company’s activities at its registered office in another Member State of the European Union required in order to avoid letter-box companies conformed to established administrative practice. The interest in gaining a competitive advantage as a foreign enterprise in the target country (here: Germany) through the continued application of foreign law by means of lower social security contributions over enterprises resident in the target country and subject to the social security system there does not justify the assumption of a claim to an exceptional agreement. The same applies with regard to the processing time and the hope of the plaintiff company with regard to the price calculation that an agreement could be reached.
Original German version of the judgment: B 12 KR 19/16 R
1. With regard to the comparability of a foreign retirement pension with a German retirement part-respectively full retirement pension for the exclusion respectively of the reduction of the claim for sickness benefit.
2. With regard to the examination of foreign law in the appeal proceedings, if the court of appeal has not determined any findings relating to the applicable foreign law.
The subject of dispute is the payment of sickness benefits owing to incapacity to work from the statutory health insurance.
The Plaintiff who was born in February 1953 is living in France and is insured with the sued German health insurance fund. Since 1 May 2014 she has received a retirement pension from the regional responsible body of the French old-age provisions of the state social insurance with the registered seat in Strasbourg (in the amount of EUR 420.22 per month). In addition, she is employed subject to compulsory insurance at a company based in Germany with a weekly working time of 20 hours. On 13 April 2015 she became ill and incapable of working. Her incapacity to work was certified by a doctor consistently until 7 June 2015. Until 25 May 2015 the Plaintiff received continued payment of wages in the event of illness from her employer. At the end of May 2015, the Defendant gained knowledge of the receipt of the retirement pension in France and refused the simultaneous payment of sickness benefit. Her objection and the legal action, with which the Plaintiff referred to the ban on discrimination (Article 45 Treaty on the Functioning of the European Union <TFEU>) and to case law of the European Court of Justice, remained unsuccessful. The State Social Court essentially referred to the grounds of the judgement of the social court that dismissed the action: The Plaintiff is excluded from the receipt of sickness benefit according to Section 50 Para. 1 Sentence 1 Number 1 and Number 4 Fifth Book German Social Insurance Code (Fünftes Buch Sozialgesetzbuch -SGB V) as she receives benefits from a foreign country, which are in terms of their type comparable with the German full retirement pension from the statutory pension insurance. There are no misgivings with regard to the avoidance of double provisions with wage replacement benefits under constitutional law and this does not contradict the European coordination law (Article 12 Regulation <EEC> 1408/71 or Article 5 Regulation <EC> 883/2004). The judgement of the European Court of Justice of 15 September 1983 (C 279/82) is not relevant as the disputed claim for sickness benefit claim was not established owing to the application of regulations of the European coordination law. The exclusion of sickness benefit with the receipt of a full retirement pension applies likewise to benefits received in Germany as well as to benefits received in another member state of the European Union.
The Federal Social Court revoked the judgement of the State Social Court and referred the lawsuit back to the court of appeal for a renewed hearing and decision. The Federal Social Court could not make a final decision on the basis of the findings of the State Social Court whether the claim for sickness benefit was excluded from the German statutory health
insurance owing to the receipt of the retirement pension from the state social insurance in France. The French retirement pension does in fact principally concern a benefit that according to its type is comparable with a German retirement pension from the statutory pension insurance. In connection with the receipt of sickness benefit a distinction is however to be made according to German law and so far it has not been sufficiently examined whether the Plaintiff received a full pension that is comparable according to its type, which excludes the claim for sickness benefit according to Section 50 Para. 1 Sentence 1 Number 4 SGB V, or whether she only received a foreign benefit that is comparable with the partial retirement pension from the statutory pension insurance according to Section 50 Para. 2 Number 4 SGB V. Should the French retirement pension be comparable with a partial pension from the statutory pension insurance, however a reduction of the claim for sickness benefit could not be taken into consideration according to the law of the German health insurance, because the retirement pension had been awarded before the start of the incapacity for work of the Plaintiff. In the appellate proceedings that were referred back the State Social Court will have to determine after determination of further facts by complying with the legal assessment of the Federal Social Court, the basic conception of the retirement pension concretely granted in France in order to subsequently carry out the necessary qualification of the retirement pension under a comparison of laws from the point of view of German social law. It decisively depends here on whether, as a rule, a complete or only a partial exit from the working life is associated with the receipt of the foreign retirement pension. In addition, more in-depth statements regarding European primary or secondary coordination law are currently not required.
Original German version of the judgment: B 3 KR 15/18 R
1.The health insurance fund must grant the consent for the overseas stay of an insured person who is incapable of working in a member state of the EU for the continued payment of the sickness benefit if there are no doubts about his incapacity to work and there is no abuse of benefits.
2.The lack of participation in a medical examination or in curative treatment may only be sanctioned after a written notice to the insured who is incapable of working.
Disputed is the payment of sickness benefit during a stay in a member state of the European Union.
The Plaintiff is insured at the sued health insurance fund, which paid him sickness benefit from 29 July 2014. The incapacity to work of the Plaintiff due to illness owing to a spinal shoulder syndrome was certified by a doctor with consecutive certificates without interruption until 29 September 2014. On 2 September 2014 he notified the Defendant that during the time from 8 September until 12 September 2014 he would be going on holiday to stay in a holiday home in Denmark (Sydals). Whereas the attending doctor had no objections to a short holiday, the medical service of the health insurance funds had misgivings about the long outward and return journey by car and the thus associated forced posture of the spine, which could lead to a worsening and an extension of the Plaintiff’s incapacity to work. Therefore, the Defendant rejected the consent for the overseas stay and ordered the sickness benefit claim to be suspended during the holiday. The social court dismissed the action. The State Social Court revoked the judgement of the social court and the contested notification because the claim for sickness benefit was not suspended during the stay overseas. The Plaintiff must not be prevented from claiming a service within the European Union. In any case he was entitled to the granting of the consent to the stay overseas.
The Federal Social Court dismissed the appeal of the sued health insurance fund: The State Social Court ultimately rightly decided that the Plaintiff was also entitled to sickness benefit during his holiday in Denmark. The Defendant was not allowed to refuse consent to the stay overseas. The granting of the consent was not at the discretion of the Defendant. The European regulation regarding the export of cash benefits (Article 21 Regulation <EC> 883/2004) applies to the claim for sickness benefit during a stay overseas in a member state of the European Union. According to this regulation insured, who stay in another state than the responsible member state, are entitled to monetary benefits, which are provided by the responsible funding body according to the legal regulations that are applicable for him. Accordingly, the payment claim for sickness benefit here is oriented towards the national health insurance law (Fifth Book of the German Social Insurance Code [Fünftes Buch Sozialgesetzbuch -SGB V]), the prerequisites of which were determined binding by the State Social Court owing to incapacity to work without interruption during the entire disputed period of time that was certified by a doctor. The principal ordered suspension of benefits according to Section 16 Para. 1 Sentence 1 Number 1 SGB V during a stay overseas was not applied in this case. The Defendant had to grant the consent requested by the Plaintiff for the stay overseas according to Section 16 Para. 4 SGB V. The purpose of the requirement for the consent of the health insurance fund to the stay overseas after occurrence of the incapacity to work is the administrative examination of the statutory prerequisites for the sickness benefit claim and serves to prevent benefit abuse. The same aim is pursued by the European procedural regulations in case of monetary benefits owing to incapacity to work with a stay in another state than the responsible member state (compare Article 27 Para. 6 the following Regulation <EC> 987/2009). However, if the prerequisites for a sickness benefit claim undoubtedly exist there are no legal points of reference for discretionary considerations that can only be examined by a court to a limited extent, which could oppose the consent.
Insofar as the Defendant expressed misgivings about the holiday from the point of view of the economic efficiency requirement (Section 12 Para. 1 SGB V) because of the worsening of the health condition and the possible extension of the incapacity to work, it did not draw any legal consequences from this. According to the findings of the State Social Court it did not request the Plaintiff to carry out corresponding acts of assistance, for example to participate in a medical examination or curative treatment. If, as here, an impairment to performance due to own fault cannot be taken into consideration, the insured person who is incapable of working -irrespective of the destination of the trip -is only responsible for the obligations to provide assistance that are standardised by law, which may be sanctioned after a corresponding notification (compare Section 66 Para. 1 to 3 First Book of the German Social Insurance Code [Erstes Buch Sozialgesetzbuch -SGB I]; similar to Article 27 Para. 4 Sentence 2 and Para. 6 Regulation <EC> 987/2009). The Federal Social Court was able to leave undetermined whether the refusal of consent violated the freedom to provide services anchored in primary law (Article 56 Treaty on the Functioning of the European Union <TFEU>) respectively, the free movement of persons from the Union citizenship (Articles 20, 21 TFEU).
Original German version of the judgment: B 3 KR 23/18 R
So-called ghetto pension as to ZRBG
English translation of the judgment: B 13 R 9/19 R
Original German version of the judgment: B 13 R 9/19 R
In accordance with European law, a Czech pension must be credited to the German old-age pension at the percentage rate at which the Czech periods of insurance overlap with pension-relevant periods under federal law, without a need to assess these periods in detail.
The dispute concerned the suspension of the plaintiff’s pension due to the payment of Czech benefits and the amount of the subsidy for health insurance expenses in the period between July 2007 and December 2011.
The plaintiff, who was born in Prague in 1942, is the holder of a displaced person card A and has private health insurance. From September 1956 to June 1959 he attended grammar school in Czechoslovakia and then studied in Prague until December 1964. He was then employed in Czechoslovakia until May 1969, with a break for military service. He then worked in Austria for around approximately one and one-half years. He has lived in Germany since January 1971 and was subject to compulsory insurance in Germany from February 1971 until the start of his old-age pension.
Starting 1 February 2007, the defendant granted the plaintiff a standard old-age pension and, by virtue of a later decision, also a subsidy for his health insurance expenses. Since 1 January 2007, the plaintiff has been receiving a Czech old-age pension based on an insurance period from September 1956 to 8 May 1969 (153 months). The calculation of the German pension was based on periods of school and university education from January 1959 to December 1964 and on contribution periods assessed under the Act on Foreign Pensions (FRG) from January 1965 to May 1969 (125 months). With regard to the periods to be simultaneously credited for purposes of the Czech pension and the German pension, the defendant calculated a ratio of 0.8170 (125 months: 153 months) and suspended the German pension in part in an amount equal to that part of the Czech pension that corresponded to this ratio. Subsequently, it adjusted the amount to be suspended several times. In a decision dated 11 August 2010, it again ruled on the amount to be suspended and the amount of subsidies for health insurance expenses - retroactively to 1 February 2007. It rejected the plaintiff’s opposition to that decision.
The plaintiff was also unsuccessful during the initial legal action and on appeal. In support of its decision, the Higher Social Court essentially held that the defendant was entitled to find that the right to receive an old age pension could be suspended by virtue of the receipt of the Czech pension under section 31 FRG. The asserted purpose of this provision is to avoid the double payment of benefits. The Czech pension was to be counted towards the German pension to the extent of the temporal overlap. The German pension would then be suspended to such an extent. Nor is the plaintiff entitled to a higher subsidy for health insurance, which is based on the amount paid to the pensioner and not on what he could otherwise claim without the finding suspending benefits.
The plaintiff’s appeal before the Federal Social Court was unsuccessful. The suspension ordered by the defendant of his German old-age pension amounting to 81.70% of the Czech old-age pension paid to him and the amount of the contribution to the costs of his health insurance are not objectionable.
The legal basis for the partial suspension is section 31 FRG. The provision continues to apply even after the Czech Republic’s accession to the European Union (EU) and thus under the application of EEC Treaty 1408/71 (Council Regulation EEC No. 1408/71 of 14 June 1971 on the application of social security schemes to employed persons and their families moving within the Community) or EC Treaty 883/2004 (Regulation EC No. 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems). Pursuant to Article 7(2)(c) of Regulation (EEC) No 1408/71 in conjunction with point 5 of Annex III to that Regulation, point 14 of the Final Protocol of 27 July 2001 between the Czech Republic and the Slovak Republic (SVA), as set out in that provision, shall continue to apply. It does not affect German legislation on, inter alia, benefits for periods of insurance credited under the FRG. Therefore, section 2, first sentence FRG does not preclude the application of section 31 FRG in the present case. Under EC Treaty 883/2004 the application of the FRG is standardised in Article 83 EC Treaty 883/2004 in conjunction with Annex XI - Germany - point 7.
Section 31 (1), first sentence FRG provides that: “If the person entitled is granted a pension by a social security institution... outside the Federal Republic of Germany from the statutory pension insurance... for periods to be taken into account under federal law, the pension shall be suspended for the amount converted into euro which is paid outside the Federal Republic of Germany as a benefit by the social security institution. Periods to be taken into account in this sense are exclusively those on which both German and foreign pension accruals are based, i.e. for which there is a temporal congruence.”
The wording of section 31 FRG does not indicate - contrary to the plaintiff’s opinion - that the “periods to be taken into account under federal law” must also have been directly included in the pension calculation in the form of a pension increase. On the contrary, an interpretation which is based on temporal congruence of pension law-relevant facts alone does justice to the integration concept underlying the FRG. Temporal congruence understood in this way also guarantees - in accordance with the intent of section 31 FRG - the avoidance of duplication of benefits and is solely appropriate and in conformity with European law based on the intent to achieve its purpose.
The plaintiff had no right to a higher subsidy for the costs of his private health insurance than that granted by the defendant.
Original German version of the judgment: B 13 R 15/16 R
Statutory accident insurance – Occupational accident – Factual connection – Action tendency – Third–party interest – Standing in for a work colleague – Obligation under the employment contract – Exercise of proprietary company–related rights arising from the legal relationship – Accident event – Outside event acting on a physical body – Everyday occurrence – Influence on mental health – Dispute with the deputy bank branch manager: further action due to cashier’s error of a work and team colleague – cardiac arrest
Even an everyday occurrence can be classified as an occupational accident as an outside event acting on physical body.
A sudden cardiac arrest of a bank employee during an argument with her supervisor about an alleged cash difference may constitute an occupational accident.
Even if the dispute only concerns the liability of a colleague, insurance cover can be considered from the point of view of exercising one’s proprietary company–related rights in the regulation of internal matters or social matters. This corresponds with the requirement under EU law for the employer to consult “employees or their representatives ... at the appropriate levels”.
Original German version of the judgment B 2 U 15/19 R
The decision of the accident insurance institution as to whether and, if so, which joint and several debtor is liable and to what extent, is within the reasonable exercise of its discretion.
If a British Limited (registered office in Great Britain) actually conducts its business at the place of its branch in Germany, this place is regarded as the registered office of the company under accident insurance law.
The parties are disputing the legality of an official decision on contributions to accident insurance amounting to EUR 8,639.41 against a limited liability company under English and Welsh law.
The plaintiff was a shareholder and sole managing director of Bau & Forstbetrieb LHW Limited (LHW Limited), a limited liability company incorporated under English and Welsh law and registered in the Companies House for England and Wales, founded in November 2005 by him and two other shareholders. The liable equity capital was 100 pounds sterling. The registered office of LHW Limited was Birmingham. The company’s purpose included bricklaying, plastering and concrete work. On 29 December 2005, a branch of LHW Limited, whose business purpose was identical to that of the main undertaking, was registered as a trade with the municipality of R.-N. in Germany at an address in R.-N. In addition, the branch office was entered in the commercial register of the Frankfurt (Oder) District Court. Business operations commenced on 1 January 2006. In the notification of business registration received by the defendant in 2006, the plaintiff was appointed as agent of LHW Limited. After business operations were discontinued and the business was deregistered on 28 February 2007, the Frankfurt (Oder) District Court opened insolvency proceedings against the assets of LHW Limited by order of 2 April 2007. The defendant demanded personal accident insurance contributions of EUR 8,639.41 from the plaintiff.
The Social Court annulled the contested contribution notices. Recourse against the plaintiff under section 130 (2) of the Seventh Book of the Social Code - Accident Insurance - (SGB VII) was not possible because the provision only covers cases in which a foreign undertaking has no registered office in Germany at all. A place of business would be located in Germany would if there were a permanent establishment in the country under the responsible management of the entrepreneur. According to the intent of the provision, recourse against an authorised representative would not then be necessary because the branch would be person who could be reached by the accident insurance institution. The Federal Social Court reversed the judgement of the Regional Social Court and referred the case back to that court for a new hearing and decision. As such he is liable in accordance with section 150 (2), second sentence in conjunction with section 130 (2), second sentence SGB VII with the entrepreneur as joint debtor for her (contribution) obligation and could be claimed as such. As a managing director with sole power of representation, he was an authorised representative within the meaning of section 130 (2), first sentence SGB VII. Nor did LHW Limited have a domestic registered office. According to both the articles of association and the foundation theory of the ECJ, LHW Limited continues to have its registered office in Great Britain. The rulings of the European Court of Justice (ECJ) on the foundation theory have provided that the basic idea is that if an EU national lawfully establishes a limited liability company in one Member State, but the company’s business activity then takes place exclusively in another Member State, the law of the founding State applies to the company. The plaintiff cannot establish a company under foreign law cherry-picking amongst his options, pursue business activities exclusively in Germany and nevertheless want to be treated as a domestic company. Moreover, in the case of foreign companies which are less solvent due to a lack of minimum capitalisation, there is a need to appoint an authorised representative jointly and severally liable under section 130 (2) of the Second Book of the Social Code (SGB VII). In particular, section 130 (2), third sentence SGB VII, which states that the place of the domestic permanent establishment is the registered office, also speaks in favour of a definition based on legal aspects. Such a fiction would not be necessary if the mere existence of a branch would establish a domestic registered office without need to look further. Finally, pursuant to sections 13d et seq. of the German Commercial Code (HGB), a branch would be registered for foreign companies within the scope of application of the HGB without any change in the registered office.
The Federal Social Court has quashed the judgement of the Higher Social Court. It is true that at the time of the last administrative decision the applicable requirements under section 130 (2) in conjunction with section 150 (2), second sentence SGB VII had been satisfied. However, the defendant failed to exercise the discretion granted to it in the selection of the debtor.
The party obliged to pay the contribution was initially and exclusively LHW Limited. According to the wording of the first sentence of section 130 (2) (“If an undertaking has no registered office in Germany...”), the provision only contains a rule applicable if the enterprise has no domestic registered office. Accordingly, it does not apply to companies domiciled in Germany. In point of fact, section 130 (1), first sentence SGB VII, which does not initially provide for the appointment of an authorised representative, applies in such cases. The branch of LHW Limited was a company with its registered office in Germany within the meaning of section 130 (1), first sentence SGB VII, because the registered office for purposes of accident insurance law was not the registered office of LHW Limited in Birmingham but the location of the branch in R. -N. in Germany. The headquarters of a company is its organisational centre, from which the business is managed from a commercial and technical standpoint. For LHW Limited, this was the location of the domestic branch. An understanding of the term “registered office” based on legal aspects as assumed by the LSG is not compatible with the term “enterprise” of the SGB VII relating to the actual exercise of activities. However, the plaintiff also become an obligor for purposes of the claim to a contribution at a later date. Section 130 (2), second sentence SGB VII extends “the duties of the entrepreneur”, which also include the duty to pay contributions (Section 150 (1), first sentence SGB VII), to its authorised representative. According to section 150 (2), second sentence SGB VII “the authorized representatives named in section 130 (2), first sentence... is liable... with the entrepreneurs as a joint debtor”. Pursuant to section 130 (2), first sentence SGB VII, the entrepreneur (section 137 (3) no. 1 SGB VII) must appoint an authorised representative with a registered office in Germany if its company (section 121 (1) SGB VI) has no registered office in Germany. These conditions were met at the time of the last administrative decision on 10 December 2010, which was decisive for the action for annulment. The legal obligation to appoint an authorised representative domiciled in Germany arose for LHW Limited for the first time on 1 March 2007 at midnight after it had ceased business operations in its domestic branch as an entrepreneur domiciled in the United Kingdom on 28 February 2007 at midnight and deregistered the business. As a result, she no longer had a registered office in Germany as of 0.00 a.m. on 1 March 2007. At that moment, the defendant and the plaintiff became a second debtor for the contribution because the entrepreneur had expressly designated the plaintiff, who was domiciled in Germany, as her “authorised representative” in the business registration of 29 December 2005 and had named him in the commercial register registration as the managing director with sole power of representation and thus appointed him as her authorised representative in Germany. As such he is liable in accordance with section 130 (2), second sentence in conjunction with section 150 (2), second sentence SGB VII with the entrepreneur as joint debtor for her (contribution‑) obligation and could be claimed as such.
However, the defendant has failed to exercise the discretion granted to it by section 150 (2), second sentence SGB VII as to whether and, if so, which joint and several debtor it is liable for and to what extent. The possibility of a creditor under public law “to demand payment ... as desired from any (joint) debtor in whole or in part as desired” (cf. section 421, first sentence German Civil Code (BGB)) is constitutionally transposed in the law of social contributions as a part of public law in such a way that public and private interests must be weighed when selecting the joint debtor and determining the quantity (“in whole or in part”). In public law, the discretionary decision takes the place of the ability to make a decision at will under civil law. As a holder of official authority, the accident insurance carrier is bound by fundamental rights, so that a negative decision as to which of several holders of fundamental rights (= debtors) it wishes to assert a claim against, and to what extent (= encroachment on fundamental rights), is not at the discretion of the public authority, but at its reasonable (selective) discretion, to which the general principles of section 39 of the First Book of the Social Code, Book - General Part - (SGB I) apply. A claim may only be asserted against the individual party liable for contributions on the basis of a discretionary decision, taking into account his fundamental rights of freedom, the principle of proportionality and the prohibition of arbitrariness. Every joint and several debtor has a legal right to have the accident insurance provider make a negative decision over its claim free of discretionary error. Neither the contribution assessment of 7 August 2010 nor the notice of opposition of 10 December 2010 contained any discretionary considerations in this respect, so that both administrative acts had to be revoked due to non-use of discretionary powers.
Original German version of the judgment: B 2 U 10/15 R
Contractual medical care – Health insurance in another EU state – Outpatient medical treatment – Billing review by Associations of Statutory Health Insurance Physicians and the health insurance funds
Outpatient medical treatment in the form of assistance-in-kind for patients who have health insurance in another EU state is provided within the framework of contractual medical care and is, therefore, subject to billing audits by the associations of SHI–accredited physicians and the health insurance funds.
The parties are in dispute about the factual and arithmetical correction of the panel doctor’s fee statement for treatment cases that were marked as “cross–border commuters / SVA”. The plaintiff health insurance company applied for correction because the billed treatment cases either concerned its own insured persons (no benefit assistance for EU citizens) (17 cases) or the eligibility according to Regulation (EC) 883/2004 or according to a social security agreement was not proven (2 cases). The defendant Association of Statutory Health Insurance Physicians rejected this. The legal basis for auditing the correctness of billing in SHI–accredited medical care is Section 106a of the old version of the Fifth Book of the German Social Code (SGB V) – Statutory Health Insurance (SGB V) (today: Section 106d SGB V). This provision only governs the factual and arithmetical correction in the area of SHI–accredited medical care. The treatment cases at issue here concerned the treatment of EU citizens. This was not contractual medical care, which is why Section 106a SGB V old version was not applicable.
The Social Court obligated the Association of Statutory Health Insurance Physicians to make a new decision on the plaintiff’s application with regard to the case group of the plaintiff’s own insured persons on the basis of Section 106a (3) SGB V, old version, and to conduct a targeted examination with regard to the further case group of the lack of proof of entitlement on the basis of Section 106a (2 and 4) SGB V, old version. The Regional Social Court dismissed the defendant’s appeal. According to Section 106a (2 and 3) of the old version of the German Social Code Book V, there is an audit of the “accounts of the doctors and facilities participating in SHI–accredited medical care”. The case group concerning the indication of an incorrect cost unit had been assigned to the factual and arithmetical correction with the entry into force of Section 106a (3) SGB V, old version.
In its appeal, the defendant alleges a violation of Section 106a SGB V, old version. According to Section 106a SGB V, old version, a factual and arithmetical correction only takes place within the framework of SHI–accredited medical care. The disputed “cross–border commuter / SVA” treatment cases were not covered by this because the patients being treated had not been insured in the German statutory health insurance. The plaintiff did not pay any morbidity-related total remuneration for these treatment cases, and they were neither subject to the fee distribution nor to the budgets for medicines or remedies.
The Federal Social Court rejected the appeal of the defendant Association of Statutory Health Insurance Physicians. The Regional Social Court had correctly affirmed the defendant’s obligation to decide anew on the factual and arithmetical correction of the settlements of benefits within the framework of benefit assistance requested by the plaintiff health insurance fund in 17 cases, and to examine – in two cases – whether the treatments could be charged to it.
In 17 cases, the patients treated had actually been insured persons of the plaintiff; however, the billing had been incorrectly carried out as assistance for services according to Regulation (EC) 883/2004. The treatment of insured persons is already covered by the total remuneration paid by the health insurance funds to the Association of Statutory Health Insurance Physicians, whereas the costs of treatment in the case of a service provision are charged separately (on an extra-budgetary basis) to the health insurance funds by the defendant Association of Statutory Health Insurance Physicians. In the two remaining cases, the eligibility conditions for benefit assistance under Regulation (EC) 883/2004 were not documented. Both constellations were covered by the health insurance fund’s right of application under Section 106a (3 or 4) in conjunction with (2) German Social Code, Book V, old version (now Section 106d German Social Code, Book V), because the treatment of the patients had taken place within the framework of SHI–accredited medical care. According to Regulation (EC) 883/2004, persons entitled to receive insurance benefits would be fully integrated into the benefit system of the institution providing assistance – in this case, the claimant – and would be equal to insured persons in terms of benefits. This integration also determines the legal framework for the provision of services. This was also the assumption made by the partners of the Federal Master Treaty for Medical Practitioners (Bundesmantelvertrag für Ärzte), who, in Annex 20 to the Federal Master Treaty for Medical Practitioners (Bundesmantelvertrag für Ärzte), had laid down more detailed regulations on the scope of the claim and the procedure for assistance with benefits.
The defendant was, therefore, obligated to decide anew on the plaintiff’s application for correction of the settlement in those cases in which the plaintiff had denied its obligation to pay benefits (as a substitute institution) on the basis of Section 106a (3) Sentence 1 Number 1 SGB V, old version because the patients had been insured with it. In the other two cases, the plaintiff had rightly demanded a specific examination of billing errors, which also included the gaps in the documentation of eligibility for benefits pursuant to Section 2 of Annex 20 to the Federal Master Treaty for Medical Practitioners (Bundesmantelvertrag für Ärzte), on the basis of Section 106a (4) Sentence 1 SGB V, old version.
The plaintiff’s claim for factual and arithmetical correction or formal examination of accounts was not precluded by the fact that the defendant was presumably no longer able to make corrections vis–à–vis the panel doctors and hospitals by which the patients concerned had been treated as outpatients because the period of four years (at that time) had expired. Any failure on the part of the defendant to bring about a suspension of the preclusion period by informing the doctors and hospitals concerned about the plaintiff’s applications could not be to the plaintiff’s detriment.
Original German version of the judgment: B 6 KA 10/20 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.
Original German version of the judgment: B 6 KA 38/15 R
With nuclear weapon tests carried out near an internment location and the radiation contamination at the internment location caused hereby there is a damaging process associated with the internment.
The Plaintiff was born in 1954 in the Kazakh city of Lugansk as a child of German parents. His family lived there after the deportation of his father from Georgia in 1941 under Soviet military command supervision. After its revocation, the family moved in August 1957 to Semipalatinsk in Kazakhstan, where the Plaintiff lived until 1976. The nuclear weapon test site of the Soviet Union was located there, where nuclear bomb tests were carried out from 1949 until 1991.
In 1991 the Plaintiff moved to the Federal Republic of Germany. A plasmacytoma was diagnosed with him in 2011, which he said was a result of the suffered radiation exposure. The sued state rejected his application for care for the damages. The previous instances dismissed the legal action, the Federal Social Court referred the matter back to the State Social Court.
Radiation contamination at the internment location is a damaging process associated with the internment. A pension due to damages owing to internment-related radiation contamination is not excluded by a claim for compensation according to Kazakh law because of radiation damages after nuclear weapon test. The determination of the concrete radiation contamination at the internment location must be carried out, as Kazakh law classifies territories near the nuclear weapon test site in zones with varying radiation risks.
Original German version of the judgment: B 9 V 4/18 R
Radiation exposure due to nuclear weapon tests in the former Soviet Union can also substantiate a claim for compensation for those German nationals, who were only exposed to the radiation in the subsequent detention after their internment.
The Plaintiff entered the Federal Republic of Germany in 1979 as a late repatriate from the former Soviet Union. The time in the Soviet Union is recognised as time of political detention. The parents of the Plaintiff moved to the German Empire, at the time, as German nationals in 1944 and received German citizenship. At the end of 1945 they were abducted from there to Siberia and placed under military command supervision until 1956. After this ended the family moved to the region of Semipalatinsk/Kazakhstan. The nuclear weapon test site of the Soviet Union was located there, where nuclear bomb tests were carried out from 1949 until 1991. The sued state recognised an illness of the thyroid gland as a result of increased radiation exposure as a consequence of damages. The legal action for recognition of further physical and mental suffering was also unsuccessful before the Federal Social Court.
The radiation contamination through the nuclear weapon tests carried out in the Soviet nuclear weapon test site Semipalatinsk principally constitutes a damaging event that is essentially connected with political detention. According to the binding findings of the previous case the asserted (further) radiation damages are however not proven with the necessary probability.
Original German version of the judgment: B 9 V 2/18 R
The plaintiff, who was born in 1947, is recognised as a late repatriate. His parents were Volga Germans and were deported to Kazakhstan into a special settlement in 1941. They were under Soviet command supervision there until 1956. The Soviet nuclear weapon test site was located in the region. The defendant country rejected the plaintiff’s application for injured person benefits owing to health impairments caused by radiation owing to the nuclear weapon tests. As opposed to the Social Court (Sozialgericht) the Regional Social Court (Landessozialgericht) confirmed the administrative decision. The Federal Social Court (Bundessozialgericht) revoked the Regional Social Court (Landessozialgericht) judgement and rejected the matter for a renewed hearing and decision. A damaging process, associated with the internment, does in fact exist with the nuclear weapon tests carried out in the vicinity of the place of internment of the plaintiff in the Soviet nuclear weapon test site and the radiation contamination caused hereby at the place of internment. Whether the radiation impact during the period of internment led to health impairments with the plaintiff, which cause one or more permanent health damage consequences, was not determined by the Regional Social Court (Landessozialgericht). This will have to be subsequently carried out by the court of appeal in the now re-opened appeal proceedings.
Original German version of the judgment: B 9 V 2/17 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) and the Regional Social Court (Landessozialgericht). 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 Regional Social Court (Landessozialgericht) 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.
Original German version of the judgment: B 9 V 6/15 R
Severely brain-damaged persons who are not capable of differentiated sensory perception do not satisfy the health prerequisites for marker blindness.
The Plaintiff who was born in 2007 has suffered from a severe metabolic disorder since her birth (non-ketotic hyperglycaemia). The previous instances sentenced the sued state, as per motion, to determine the prerequisites for the marker of blindness.
The Federal Social Court referred the matter back to the appeal of the sued state owing to missing findings relating to the blindness. The metabolic disorder is however not to be deemed equivalent to blindness. Disabilities as well as the health features for markers are covered under exclusively medical aspects separately according to organ and function units in the law governing seriously disabled persons and are subsequently assessed on the whole with regard to their implications on the participation in society. Blindness is accordingly limited to disorders of the visual system and does not cover any gnostic -neuropsychological -disorders which affect visual recognition. The health features for other markers are available and perfectly suitable for these types of diseases in the law governing seriously disabled persons. For these reasons, the principle of equality of disabled persons before the law is also satisfied and the ban on discrimination of the UN Convention on the Rights of Persons with Disabilities has been complied with.
Original German version of the judgment: B 9 SB 1/18 R
The Senate has already decided that a mental disorder can also lead to the existence of the prerequisites for a classification of G and has stated that the comprehensive concept of the disabled within the meaning of section 2 (1), first sentence of the Social Code, Book Nine - Rehabilitation and Participation of Disabled Persons (SGB IX) - requires the inclusion of all physical, mental and psychological impairments in the light of both the constitutional prohibition of discrimination and the directly applicable prohibition of discrimination under the UN Convention (Article 3 (3), second sentence of the Basic Law; Article 5 (2) UNCRPD). (...) A severely disabled person may therefore also be entitled to disability compensation G if there are psychosomatic or mental disabilities and pathologies with sufficiently severe effects on walking function (Judgement of 11/8/2015 - B 9 SB 1/14 R - SozR 4-3250 § 69 Number 21).
An appeal against denial of leave to appeal based on the grounds of fundamental significance regarding legal questions on the consideration of mental illnesses without effects on walking ability when conferring classification G must therefore show why the questions raised have not yet been clarified by case law of the highest court.
Original German version of the judgment: B 9 SB 93/17 B
An autistic person is not entitled to an oral hearing by means of an online chat procedure lasting several weeks. Nor can he invoke Article 13 of the United Nations Convention on the Rights of Persons with Disabilities, of 13 December 2006 (CRPD), which obliges signature states to ensure equal and effective access to justice.
On the merits, the plaintiff seeks the award of a higher degree of disability (GdB) as well as the determination of the prerequisites for various signs of autism. The complaint was unsuccessful before the Social Court and the Regional Social Court. After the referral back by the Federal Social Court, the Regional Social Court conducted further investigations, as a result of which the defendant made a partial admission, which the plaintiff rejected. Following the resignation of the mandate by his attorney, the plaintiff demanded accessibility for the oral hearing in the form of a remote hearing via the Internet, which was to extend over several weeks, similar to the proceedings in an online forum. The plaintiff did not give his consent to the decision without an oral hearing and did not make use of the possibility granted to him to send a person appointed to represent him or to appear accompanied by him. In the absence of the plaintiff, the Regional Social Court sentenced the defendant on the basis of oral proceedings in accordance with his partial confession and dismissed the plaintiff’s appeal. The Social Courts Act does not provide for an online chat requested as by the plaintiff for the conduct of an oral hearing.
The Senate rejected the plaintiff’s request for the appointment of an emergency lawyer and legal aid for an appeal against denial of leave to appeal rejected and dismissed them. The analogous legal question of whether Article 13 of the UNCRPD grants an autistic person a right to an oral hearing in the form of an online chat does not reveal any need for clarification. An online chat to conduct the oral hearing over several weeks does not result from Article 13 UNCRPD nor from the procedural provisions of the Social Courts Act and the Judicial Systems Act.
Original German version of the judgment: B 9 SB 61/17 B
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.
Original German version of the judgment: B 9 SB 1/15 R
According to the principle of equal treatment of nationals EU foreigners are principally to be deemed equivalent to German citizens with the receipt of parental allowance.
The Plaintiff is a Croatian citizen She is among other things the mother of a daughter who was born on 4 April 2015. Until the birth of her daughter the Plaintiff neither had dependent gainful employment, nor did she work in a self-employed capacity. She had no health insurance did not receive any maternity allowance. Between July 2015 and October 2015, she was employed in a volume of six respectively ten hours per week with a marginal employment income. A formal determination of the non-existence or the lapse of the right of the Plaintiff to free movement did not exist. The sued state rejected the Plaintiff’s application for parental allowance, because the Plaintiff is not entitled to freedom of movement. The social court had sentenced the Defendant to pay the Plaintiff parental allowance in the statutory amount as per application.
The Federal Social Court confirmed this decision in the proceedings of the “leapfrog” appeal. As a citizen of a member state of the European Union, the Plaintiff is among a group of foreigners, who according to the principle of the equal treatment of nationals with the receipt of parental allowance, are principally deemed equivalent to German citizens and who are therefore do not fall under the restrictions for foreigners who are not entitled to freedom of movement. Until a formal determination of the loss or the lapse of the freedom of movement of the foreigners office that is solely responsible for this according to the law governing the general freedom of movement of Union citizens a general presumption of freedom of movement shall apply for Union citizens. Parental allowance departments and social courts have insofar no independent competence to examine the existence or non-existence of a material entitlement to freedom of movement of a Union citizen according to the law governing the general freedom of movement of Union citizens in its own responsibility.
Original German version of the judgment: B 10 EG 5/18 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.
Original German version of the judgment: B 10 EG 5/16 R
Overseas family allowance matters according to the Federal Family Allowance Act are not covered by the authorisation of an income tax assistance association to provide limited assistance in tax matters.
The Plaintiff is an income tax assistance association. The Romanian intervening party was its member until 2012, who received family allowance for his children until February 2009 according to the German Income Tax Act [Einkommensteuergesetz]. The sued family office revoked the approval in 2009, because the intervening party was in Romania with his family owing to a secondment by his employer. In June 2010 the intervening party filed an application for overseas family allowance according to the Federal Family Allowance Act. The Defendant rejected the Plaintiff as attorneys-of-record of the intervening party in these family allowance proceedings and subsequently approved family allowance as per application for the months of the secondment according to the Federal Family Allowance Act.
The legal action directed at determining the unlawfulness of the rejection of the Plaintiff in the application proceedings according to the Federal Family Allowance Act was unsuccessful in all instances. Overseas family allowance matters are not covered by the authorisation of an income tax assistance association, to provide limited legal services in tax matters. The legal knowledge that is necessary for this main activity of an income tax assistance association and is to be proven by examination as well as practical activity does not cover overseas family allowance matters. The appropriate help in tax matters is not noticeably impaired by the missing authorisation for representation in overseas family allowance proceedings.
Original German version of the judgment: B 10 KG 1/18 R
Administrative proceedings under social law – Request for review – Basic income support for job-seekers – Exclusion for foreign nationals staying to look for work – Union citizen – Involvement and conviction of the social welfare agency
The fact that the main application was to be decided in favour of the defendant does not prevent the alternative application for a conviction of a defendant.
The plaintiffs, mother and daughter, both Estonian nationals, applied for benefits to secure their livelihood according to Book II of the German Social Code – Basic benefits for job-seekers (SGB II) for August 2012 to October 2012 in the context of “proceedings for the review of final decisions (so-called proceedings in favour of the plaintiffs)”.
They entered Germany in January 2012 and have since returned to Estonia. The mother (plaintiff no. 1) registered a business “kitchen help, cleaner, temporary help in a hotel” on 19 January 2012, but did not generate any income from this. The daughter (plaintiff 2) attended a primary school from August 2012. By decision of 23 July 2012, the defendant Jobcenter refused to continue paying the benefits that had initially been granted on a provisional basis, as the first applicant only had a right of residence for the purpose of seeking employment. As part of a 2018 court settlement, the defendant undertook to review the decision of 23.7.2012. However, he refused to change his decision.
Before the Social Court, the plaintiffs were unsuccessful with their claims against this, as well as with the alternative claim for the provision of social assistance benefits by the State, which was also a party to the proceedings. The appeals of the plaintiffs were dismissed by the Regional Social Court. The requirements of Section 44 (1) Sentence 1 of the Tenth Book of the German Social Code – Social Administrative Procedure and Social Data Protection (SGB X) were not met, and the decision of 23 July 2012 was lawful. The exclusion of benefits under Section 7 (1) Sentence 2 Number 2 of the Second Book of the German Social Code in the version applicable until 28 December 2016 (old version) applied. The auxiliary application for a conviction of the social welfare agency, which had been summoned, was inadmissible. A conviction under Section 75 (2) Alternative 2, (5) of the Social Court Act (Sozialgerichtsgesetz, SGG) requires that the claim asserted with the legal action and the claim against the social welfare agency do not differ substantially in terms of legal grounds and legal consequences. In this case, however, a claim of a different nature was asserted under Section 44 (1) Sentence 1 SGB X.
With their appeals, the applicants complain of a violation of Section 7 (1) Sentence 2 of the Second Book of the German Social Code, old version. Even if there had been no entitlement to benefits under Book II of the German Social Code, there was a claim to social assistance benefits under Book XII of the German Social Code, or at least a claim under the discretionary rule of Section 23 (1) Sentence 3 of Book XII of the German Social Code, old version, applying the European Welfare Convention. The application for review against the rejection decision does not change the legal situation. The claims for benefits under SGB II and SGB XII are essentially the same.
The plaintiffs’ appeals are well–founded in the sense of referring the case back to the Regional Social Court because of claims for benefits under the Social Code Book XII. The defendant is not obliged to withdraw its decision on the refusal of benefits under SGB II in the period from August to October 2012. It rightly refused to review its decision under Section 44 SGB X. This is because he did not misapply the law when he issued the decision refusing the benefits.
The applicants were excluded from benefits to secure their livelihood during the period at issue pursuant to Section 7.1 Sentence 2 Number 2 of the Second Book of the German Social Code, old version. The first applicant was only in Germany to look for work. She did not have any further right to freedom of movement under the Act on the General Freedom of Movement of EU Citizens (Freedom of Movement Act/EU) during the period in question. She was neither entitled to freedom of movement as an employee under Section 2 (2) Number 1 of the Freedom of Movement Act/EU, nor as a self–employed person under its Section 2 (2) Number 2. A right of residence of the first applicant under Article 10 of Regulation (EU) 492/2011 derived from the second applicant is ruled out despite her school attendance from August 2012. A claim to benefits, taking into account the principle of equal treatment of the European Welfare Convention is also out of the question due to the reservation declared by the Federal Government for benefits under SGB II.
With regard to the argument of the social welfare agency, which had been summoned, that its conviction to grant benefits under SGB XII was already out of the question because these were proceedings in favour of the Jobcenter under Section 44 of SGB X, the discerning Senate refers to the decision of the Fourth Senate of the Federal Republic of Germany. Senate of the Federal Social Court of 29.3.2022 (B 4 AS 2/21 R). It agrees with it in this respect. Also, in such a constellation, the procedural–economical purpose of the so-called “non-genuine necessary supplementary summons” (“unechte notwendige Beiladung”) within the meaning of Section 75 (2) Alternative 2, (5) SGG is to be taken into account.
It is true that, even according to Section 23 (3) Sentence 1 of the German Social Code, Book XII, which was applicable during the period at issue, foreign nationals whose right of residence results solely from the purpose of seeking employment, as well as their family members, were not entitled to social assistance. However, this did not apply if they were subject to the equal treatment requirement of the European Welfare Convention. There is a lack of findings by the Regional Social Court for an assessment of this. Insofar as the European Welfare Convention should not open up a claim to benefits for the applicants under SGB XII, a claim against the respondent under Section 23 (1) Sentence 3 SGB XII, old version for discretionary benefits, is to be considered. In this respect, the Senate refers to the established case law of the Federal Social Court. As to whether (and to what extent) the prerequisites for these benefits are met, the Senate is also unable to judge on the basis of the findings of the Regional Social Court.
Original German version of the judgment: B 7/14 AS 27/21 R
Basic benefits for job-seekers – Exclusion of benefits for foreign nationals staying for the purpose of seeking work – Union citizen – Other right of residence – Free movement of workers – Dormant employment relationship during parental leave – Continuing effect of employee status
Parents on parental leave whose employment relationship is suspended under national law are not excluded from benefits under Book II of the German Social Code (SGB II) – Basic benefits for job-seekers, as workers within the meaning of Union law.
The applicants (Applicant 1 – mother / Applicant 2 – her daughter born in March 2018), both Luxembourg nationals, claim subsistence benefits for January to May 2019.
Applicant 1 has been living in Germany since mid–May 2012 – with an interruption in 2013 / 2014. Here, she was employed in various employment relationships subject to social security contributions from July 2014 onwards, and had not been dismissed since March 2017. The maternity leave period before and after the birth of the second plaintiff began on 26 January and ended on 4 May 2018; the first plaintiff extended her parental leave, which was initially limited until 20 April 2019, with parental allowance until March 2019, until March 2021. The employment relationship was suspended during her parental leave.
The defendant Jobcenter rejected the application for the granting of unemployment benefit II and social benefit for the disputed period. An exclusion of benefits prevented the granting of the benefit. The first applicant had stayed in Germany during her parental leave exclusively for the purpose of seeking employment. The suspended employment had not been resumed after the end of the maternity leave period, so that it could not be assumed that the employee status continued.
The lawsuit and appeal were unsuccessful. In its reasoning, the Regional Social Court stated, among other things, that the plaintiff was not an employee in the sense of Union law, because she had not carried out any actual and real work due to the suspended employment relationship during parental leave. The employment status had also not continued because she was not involuntarily unemployed, had not made herself available to the German labour market and had not resumed her employment within a reasonable period of time. This period was not to be extended by parental leave. The exclusion of benefits also extended to the second plaintiff. The applicants were also excluded from social assistance benefits under Section 23 (3) Sentence 1 Number 2 of the Twelfth Book of the German Social Code – Social Assistance (SGB XII).
The plaintiffs’ appeals are well–founded in the sense that the judgement of the Regional Social Court is set aside and the case is referred back to that court. Due to the lack of findings by the Regional Social Court on the plaintiffs’ need for assistance in the disputed period, the Senate was unable to make a final decision on their entitlement to unemployment benefit II/social welfare benefit. However, the claims asserted are, in any case, not precluded by an exclusion of benefits pursuant to Section 7 (1) Sentence 2 of the Second Book of the German Social Code – Basic benefits for job-seekers (SGB II). The first applicant is entitled to freedom of movement as an employee, including during parental leave.
The concept of a worker under EU free movement law is to be determined under Union law as an autonomous concept of Community law. According to the case law of the European Court of Justice, it is essential that someone renders services for another person for a certain period of time according to the latter’s instructions, for which he receives remuneration in return. However, in its case law, the European Court of Justice has also identified factual constellations in which – in the case of a continuing employment relationship – the requirement of actual activity for the fulfilment of the status of employee can, by way of exception, be dispensed with. This is the case for parents on parental leave whose employment relationship is suspended under national law. They remain employees within the meaning of Union law during this period.
This also corresponds to the legal situation under Directive (EU) 2019/1158 of 20.6.2019 on reconciliation of professional and private life for parents and family carers and repealing Council Directive (EU) 2010/18, which Germany agreed to on 6.2.2019 and whose transposition into national law must take place by the beginning of August 2022. The German legislator had already implemented Directive (EU) 2010/18, among other things, through the Federal Parental Allowance and Parental Leave Act (Bundeselterngeld– und Elternzeitgesetz, BEEG). Pursuant to Section 18 (1) Sentences 1 and 3 BEEG, the employer may not, in principle, terminate the employment relationship as of the date from which parental leave has been requested and during the parental leave. During parental leave, the employment relationship is suspended by law.
Also, the Senate – in contrast to the Regional Social Court – is unable to recognise in the case law of the European Court of Justice any restriction of the maintenance of employee status to the maternity protection periods, or for the minimum periods of parental leave of four months provided for in the Directive. Insofar as the federal German protection provisions of the BEEG go beyond those of the Directive, this does not mean that an entitlement to free movement is only granted within the “minimum periods” of the Directive. Member States are entitled by way of primary law to go beyond the minimum standards of European regulations. Migrant workers are then to be treated equally with nationals within the national regulations.
The “Saint Prix” decision referred to by the Regional Social Court (European Court of Justice of 19.6.2014 – C 507/12) does not apply to the present case. The decision of the European Court of Justice was based on a factual situation according to which the employment relationship had actually ended.
Original German version of the judgment: B 7/14 AS 91/20 R
Child supplement – Avoiding need for assistance under Book II of the German Social Code – Basic benefits for job seekers (SGB II) – Exclusion from benefits for persons entitled to benefits under the Asylum Seekers’ Benefits Act (Asylbewerberleistungsgesetz) – Turkish nationals with toleration or humanitarian residence permit – Principle of equal treatment according to Article 1 of the European Welfare Convention – Permitted residence – Right of residence under association law from the EEC–Turkey in conjunction with Article 6 of Association Council Decision EEC–Turkey 1/80 – lawful employment in the host Member State – Principle of equal treatment under Article 3 of Association Council Decision EEC–Turkey 3/80 – Residence in the host Member State – Lawful residence – Family benefit – Provisional European agreement on social security excluding old–age, invalidity and survivors’ schemes
According to European–Turkish association law, the child supplement is a family benefit and not a form of social assistance.
The parties dispute the granting of child supplement for the months of December 2011 and June 2013.
The plaintiff and his wife are parents of six children (born between 1989 and 2007). They entered Germany in 1989 as stateless persons from Lebanon and Lebanese citizens, respectively. They had been in possession of a permanent residence permit since 2000. In May 2011, after the competent immigration authority (Ausländerbehörde) had become aware of the plaintiff’s Turkish nationality, among other things, it withdrew all residence titles issued as of the date of their issue. In December 2011, the applicant was then in possession of a toleration permit and in June 2013 of a residence title pursuant to Section 25 (5) of the Residence Act after he had presented a Turkish passport.
Among other things, the plaintiff was employed in December 2011 and June 2013 subject to social security contributions and earned remuneration from this amounting to approximately EUR 1,300 in each case. His wife earned income from self–employment of EUR 825 in June 2013. The family was paid housing benefit and child benefit during the months in dispute.
The granting of child supplement applied for by the plaintiff in November 2011 was rejected by the defendant Family Benefits Office (Familienkasse). The payment of the child supplement could not avoid the need for assistance according to Article 9 of Book II of the German Social Code (Basic benefits for job-seekers – SGB II). This was because the plaintiff and his family, as potential beneficiaries under the Asylum Seekers’ Benefits Act, were subject to the exclusion provision of Section 7 (1) Sentence 2 Number 3 SGB II. The Social Court ordered the defendant – after limiting the disputed period to the months mentioned at the beginning – to grant child allowance for these months. The defendant was partially successful in its appeal against this before the Regional Social Court. The Regional Social Court changed the Social Court’s decision and dismissed the claim concerning December 2011. For the rest, it dismissed the appeal. In its reasoning, it stated that the plaintiff was (indirectly) excluded from the granting of a child supplement on the basis of Section 7.1 Sentence 2 Number 3 of the Second Book of the German Social Code (SGB) in conjunction with Section 6a (1) Number 4 of the Federal Child Benefit Act. However, the applicant’s claim for June 2013 follows from the prohibition of discrimination under the law of association laid down in Article 3 (1) of Decision No 3/80 of the EEC–Turkey Association Council (EEC–Turkey Association Council Decision 3/80). As a Turkish national in gainful employment who has been granted a residence title under Section 25(5) of the Residence Act, he falls within both the personal and the material scope of Association Council Decision EEC–Turkey 3/80. The child supplement under Section 6a of the Federal Child Benefit Act constituted a “family benefit” within the meaning of Article 4 (1)(h) of Association Council Decision EEC–Turkey 3/80. For the month of December 2011, the plaintiff could not invoke the prohibition of discrimination. His stay had only been tolerated during this time.
The appeals of the parties are unfounded. The Regional Social Court correctly affirmed the claimant’s entitlement to child supplement for the month of June 2013 and denied it for the month of December 2011.
Child supplement pursuant to Section 6a (1) of the Federal Child Benefit Act (Bundeskindergeldgesetz) in the version of 24 March 2011 is granted to persons for unmarried children living in their household who have not yet reached the age of 25, if they are entitled to child benefit for these children under this Act or under Section X of the Income Tax Act (Number 1), they have income within the meaning of Section 11 (1) Sentence 1 of the Second Book of the German Social Code (SGB II) amounting to EUR 900 (Number 2), they have income or assets within the meaning of Sections 11 to 12 of the Second Book of the German Social Code (SGB II), which correspond to no more than the amount applicable to them pursuant to (4), Sentence 1 plus the total child supplement pursuant to (2) (Number 3), and the need for assistance pursuant to Section 9 of the Second Book of the German Social Code (SGB) is avoided by the child supplement (Number 4). The requirements of Section 6a (1) Numbers 1 to 3 of the Federal Child Benefit Act are met in the present case for both periods at issue.
However, this does not apply to Section 6a (1) Number 4 of the Federal Child Benefit Act. This is because the need for assistance under SGB II cannot be avoided if the applicant is not entitled to benefits under SGB II because he or she is excluded from them. This is the case with the plaintiff according to Section 7 (1) Sentence 2 Number 3 SGB II. He was entitled to benefits under Section 1 (1) Numbers 3 and 4 of the Asylum Seekers’ Benefits Act (Asylbewerberleistungsgesetz) on the basis of the toleration of his stay in Germany, and the residence permit he was later granted under Section 25 (5) of the Residence Act.
With regard to the eligibility for benefits under SGB II, the plaintiff also cannot invoke equal treatment of nationals in the granting of “welfare” on the basis of the European Welfare Convention of 11 December 1953. For the month of June 2013, equal treatment is precluded by the reservation declared by the Federal Government in December 2011 regarding benefits under the basic benefits for job–seekers. In the month of December 2011, the applicant’s stay was not “permitted” in the sense of Article 1 of the European Welfare Convention – a toleration (Section 60a of the Residence Act) is not sufficient for this.
In this respect, the plaintiff does not have a substantive right of residence under the Agreement establishing an Association between the EEC and Turkey (EEC–Turkey Association Agreement) of 12 September 1963.
For June 2013, however, the plaintiff can invoke the association–law requirement of equal treatment or the prohibition of discrimination on grounds of nationality in Article 3 (1) of Association Council Decision EEC–Turkey 3/80 of 19 September 1980. The provision of Section 6a (1) Number 4 of the Federal Child Benefit Act in conjunction with Section 7 (1) Sentence 2 Number 3 of the Second Book of the German Social Code, which disadvantaged him, could, therefore, not be held against him.
In this respect – unlike in December 2011 – he fulfils the personal requirements of the EEC–Turkey Association Council Decision. According to Article 2 of Association Council Decision EEC–Turkey 3/80, the decision applies to workers who are (or have been) subject to the legislation of one or more Member States and who are Turkish nationals and, inter alia, to members of the family of that worker who reside in the territory of a Member State. The plaintiff – a Turkish national – was employed in Germany in June 2013 subject to compulsory insurance and “resided” in Germany in the sense of association law. He had a residence permit for humanitarian reasons that month. In the month of December 2011, this point was already lacking. The toleration granted to the plaintiff did not establish legal residence, but merely temporarily suspended the process of deportation.
The child supplement pursuant to Section 6a of the Federal Child Benefit Act (Bundeskindergeldgesetz), which is sought here, also falls under the material scope of the EEC–Turkey Association Council Decision as a “family benefit” within the meaning of Article 4(1)(h) of the EEC–Turkey Association Council Decision 3/80 and is not classified as a welfare benefit. Point (a) of this provision expressly states that the term “family benefits” has the meaning as defined in Article 1 Regulation (EEC) 1408/71. Regulation (EEC) 1408/71 defines family benefits as benefits-in-kind or in cash to compensate for family burdens. In this context, it is consistent case law of the European Court of Justice to interpret the expression “compensation of family burdens” as covering, inter alia, a state contribution to the family budget which reduces the costs of child maintenance. With the child supplement, the legislator has created an income–related benefit upstream of unemployment benefit II which, together with child benefit and the share of housing benefit attributable to children, covers the average need of children for unemployment benefit II or social benefit. By introducing the child supplement, the legislator of the 4th Act for Modern Services on the Labour Market wanted to prevent families from being dependent on unemployment benefit II solely because of the maintenance burden for their children. With regard to the criterion of avoiding need for assistance within the meaning of Section 9 of the Second Book of the German Social Code, the benefit is, therefore, closely linked to the basic benefits for job–seekers and is, therefore, based on individual need. However, the amount of the child supplement is initially fixed by law in a uniform manner, irrespective of the individual needs situation, and serves to compensate for family burdens by reducing child support through a state contribution. Against this backdrop, the child supplement is a family policy benefit and not a welfare benefit.
Insofar as the plaintiff is not entitled to claim for December 2011, he cannot derive any further claim to equal treatment from the Provisional European Convention on Social Security excluding Old–Age, Invalidity and Survivors’ Schemes of 11 December 1953, ratified by both the Federal Republic of Germany and Turkey.
Original German version of the judgment: B 7/14 KG 1/20 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.
Original German version of the judgment: B 7 AY 1/16 R
After an uninterrupted stay abroad of more than four weeks, foreigners living in Germany are not entitled to a standard rate of living assistance.
The dispute involved higher benefits under the Twelfth Book of the Social Code - Social Assistance (SGB XII) during a stay in Turkey in May 2013.
The plaintiff, who was born in 1979, is a Turkish national and holds a residence permit. During the disputed period she received a fixed-term pension due to a full reduction in earning capacity. For April 2013, the defendant social welfare institution granted her subsistence benefits. From May 2013, the defendant provisionally suspended the benefit because the plaintiff was in Turkey from 2 April to 22 May 2013. Her opposition to this was (only) successful for the period after her return and in terms of accommodation and heating costs. Whereas the Social Court ordered the defendant to pay further benefits for the period from 1 to 22 May 2013, the Higher Social Court dismissed the action. In support of its decision, it stated that the plaintiff's entitlement to higher benefits was excluded on the ground that she had not actually resided within Germany.
The Federal Social Court referred the matter back to the Higher Social Court for a new hearing and decision because, in the absence of sufficient findings by that court, it could not conclusively decide whether, if necessary, benefits of the basic old age insurance and in the case of reduced earning capacity or in the case of the plaintiff’s earning capacity, benefits according to the Second Book of the Social Code - Basic Assistance for Job Seekers - (SGB II) could be considered. However, the plaintiff did not have a claim to livelihood assistance during the period in dispute. Pursuant to section 23 (1) first sentence SGB XII, this presupposes actual residence in Germany.
The concept of “actual residence” is in principle to be understood in the sense of a physical presence. No corresponding regulation applies to German citizens, but SGB XII does not provide for the grant of social assistance as a result of the linking of local jurisdiction to an actual stay in the jurisdiction of a social assistance institution, even in the case of only temporary stays abroad (such as holiday trips). The Federal Administrative Court did not regard this as a gap to be filled for the identical legal situation under the Federal Social Assistance Act, but rather as a consequence of the principle of territoriality. If there is no competent social assistance institution when travelling abroad, the consequence is that a person in need of assistance is not entitled to social assistance benefits in accordance with social assistance law for a need arising abroad. The Federal Administrative Court, however, emphasised in this decision regarding actual residence that the local competence of a social assistance institution based on the actual residence of an aid recipient does not end with every temporary absence of the aid recipient; rather, short-term absences of regularly one month during the authorisation period did not affect the competence of the social assistance institution for purposes of the effectiveness of social assistance. The ruling Senate agrees with this view with the proviso that short-term absences are harmless for (only) up to four weeks. Stays abroad of recipients of subsistence benefits are generally for purposes of making a holiday. The Federal Holiday Act provides for a minimum statutory holiday period of four weeks (section 3 Federal Holiday Act: 24 working days). It is therefore appropriate to accept an interruption of the actual stay based on this time frame while the benefits continue to be paid. Such an understanding must also be taken as a basis for the interpretation of actual residence within the meaning of section 23 SGB XII, because there is no room for a functionally differentiated interpretation. This is the case because, in the event foreigners have right to benefits under SGB XII, they are equal to those of Germans. However, the period in dispute is outside the four-week period.
The plaintiff cannot derive further rights under section 23 (1), fourth sentence SGB XII. Accordingly, the restrictions in sentence 1 do not apply to foreigners who - like the plaintiff - are in possession of a settlement permit. However, the requirement of actual residence does not change in this respect. Insofar as section 23 (1) fourth sentence refers to the “Restrictions pursuant to sentence 1”, this refers exclusively to the scope of benefits. However, this does not imply a renunciation of the actual residence and thus a better position compared to German citizens. Nor do other legal provisions give rise to any further rights on the part of the plaintiff. In particular, the plaintiff cannot rely on the European Convention on Social and Medical Assistance because Article 1 of that Convention also requires a stay in Germany.
However, the plaintiff may be entitled to benefits under the basic pension scheme in old age and in the event of reduced earning capacity if she is permanently fully incapacitated for gainful employment and the other requirements for corresponding benefits are met (in particular need). The decisive factor for these benefits is - in contrast to the provisions for subsistence benefits under Chapter 3 - the “habitual residence” of the beneficiary in the territory of the Federal Republic which the plaintiff also maintained during her stay abroad. For a final decision, however, sufficient findings of the Higher Social Court on the other conditions for provision of benefits are lacking.
Original German version of the judgment: B 8 SO 20/16 R
Underage Germans, who have their habitual residence abroad, can be granted social assistance in individual cases to ensure an appropriate school education according to the circumstances prevailing there.
The issue in dispute was the grant of social assistance for Germans abroad under the Twelfth Book of the Social Code - Social Assistance (SGB XII).
The underage plaintiff is a German national. Since 2007 he has lived in Plovdiv with his mother, who has sole custody and is a Bulgarian citizen. The defendant rejected his application in January 2010 for social assistance benefits for Germans abroad. The action initiated to oppose this decision was unsuccessful before the Social Court and the Higher Social Court. A claim was deemed to fail because no substantially unmet needs of the plaintiff are apparent and the plaintiff was not prevented from returning to Germany.
The Federal Social Court reversed the judgement of the Higher Social Court and referred the case back to that court for a new hearing and decision. According to section 24 (1) first sentence SGB XII, Germans who - as here - have their habitual residence abroad do not receive any benefits. Exceptions to this are governed by section 24 (1), second sentence SGB XII, insofar as this is unavoidable due to an extraordinary emergency and at the same time there is an objective reason listed in section 24 (1), second sentence SGB XII which makes a return to Germany impossible. The only potential grounds for a hindrance that may be considered here is exclusively the grounds referred to in section 24 (1), second sentence no. 1 SGB XII - the care and education of a child who must remain abroad for legal reasons. These conditions are met in the present case. This provision also covers German children living abroad with their parents or the parent with custody if they are (legally) prevented from returning in light of the habitual residence of their parents with custody and thus due to their own care and upbringing abroad (see judgement of 21/9/2017 - B 8 SO 5/16 R). The issue of whether the parents have the opportunity to return to this country is not decisive. In particular, the parents’ lack of willingness to return cannot be attributed to the children.
However, the Senate could not conclusively assess whether the granting of social assistance is indispensable due to an extraordinary emergency due to the lack of sufficient findings from the Higher Social Court. An extraordinary emergency presupposes special circumstances in the person claiming social assistance benefits for himself, which constitute the concrete and immediate danger of a not inconsiderable impairment of essential legal interests. These include life, physical integrity, a minimum subsistence level worthy of human dignity or other legal interests protected by fundamental rights of comparable essential significance. According to this, an extraordinary emergency also exists if participation in formal education that is appropriate according to Bulgarian conditions - findings by the National Social Court on this matter are lacking - is not ensured. The undeniability of granting social assistance benefits abroad to secure existential legal interests applies if the benefit is the only suitable means of averting the immediate and concrete danger to a legal interest of existential importance protected by fundamental rights. According to the findings of the Higher Social Court, which are binding on the Senate and have not been challenged by a thorough procedural complaint, the plaintiff’s livelihood, including accommodation and heating, is covered by funds received from payments of child support and child allowance. On the other hand, sufficient findings regarding cover for needs that cannot be assigned to the physical but to the socio-cultural subsistence level are lacking. This applies in particular to the needs associated with school education, such as school fees, the provision of personal school supplies and the transport of pupils. The Higher Social Court has admittedly stated that “in this respect the grandparents or the plaintiff’s mother apparently cover the demand, even if with borrowed funds”. However, the undeniability of social assistance benefits is not precluded, for reasons of effective legal protection, by the fact that the costs incurred after the application was lodged in January 2010 to cover existential needs were incurred in anticipation of the social assistance benefits to be expected by the grandparents or - with the aid of loans - by the plaintiff’s mother.
Original German version of the judgment: B 8 SO 11/16 R
1. Underage German children with a habitual residence abroad may be entitled to social assistance if they are (legally) prevented from returning because of their own care and upbringing abroad.
2. The unreasonableness of return does not constitute the yardstick for entitlement to social assistance abroad for German citizens.
3. An exceptional emergency is primarily determined by the general standard of living and the beliefs in the country of residence.
4. The “undeniability” of the benefit is an independent prerequisite for social assistance abroad; at the time the benefit is claimed, there must be a situation which, in particular, precludes reference to third parties.
The dispute concerned the assumption of costs for dental treatment and orthodontic treatment as social assistance for German citizens residing abroad.
The plaintiffs (mother and minor daughter) had been living in Spain with two other family members since July 2005. The first plaintiff is an epileptic and suffers from a brain tumour as well as psychological disorders; she was in need of Care Level III according to the law applicable until 31 December 2016. Since January 2007, the defendant has granted social assistance to German family members abroad. In 2008, the first plaintiff claimed reimbursement of the costs of dental treatment and the second plaintiff claimed reimbursement of the costs of orthodontic treatment, which the defendant, a supra-local social welfare institution, refused. A complaint filed against these actions was unsuccessful before the Social Court and the Higher Social Court. In any case, any such claim fails because the plaintiffs were not prevented from returning to Germany.
The Federal Social Court dismissed the first plaintiff’s appeal. It set aside the judgement of the Higher Social Court in respect of the second plaintiff’s appeal and referred the case back to the Higher Social Court for a new hearing and decision, insofar as claims in respect of orthodontic treatment amounting to EUR 1,474.00 were in dispute. In all other respects (costs of dental treatment on 8 July 2008 amounting to EUR 33.40, it also rejected the second plaintiff’s appeal.
The first plaintiff has no claims. Social assistance benefits for Germans with a habitual residence abroad can only be granted in accordance with section 24 (1), second sentence of the Twelfth Book of German Social Code - Social Assistance (SGB XII) to the extent that this is unavoidable due to an exceptional emergency and it is also proven that return to Germany is not possible for the reasons listed in section 24 (1), second sentence SGB XII. This is lacking here. According to the binding findings of the Higher Social Court, the first plaintiff was objectively able to return to Germany in any event in 2008 despite the need for long-term care. The approval decision in which the defendant assumes that there is an obstacle to return does not have any binding effect in this respect. The (subjective) unreasonableness of return is not decisive.
By contrast, the Senate was not able to decide whether the second plaintiff is entitled to further benefits on the basis of section 24 (1), second sentence SGB XII - except for the amount of EUR 33.40 for dental treatment - due to the lack of sufficient findings of the Higher Social Court. In the case of plaintiff 2, there is an obstacle to return pursuant to section 24 (1), second sentence no. 1 SGB XII because she is legally prevented from returning because of the habitual residence of her parents with custody and thus because of her own care and upbringing abroad. The wording of the statute permits such an interpretation. The decision of the parents to live in Spain cannot be attributed to the plaintiff cannot be attributed to her as her own decision even via the concept of legal representation. However, the Senate was unable to reach a final decision on whether an exceptional emergency situation existed with regard to orthodontic treatment. This term must be interpreted narrowly. This refers to special circumstances which, by their nature, stand out clearly from situations which give rise to a need under social assistance law in Germany. Even the question of the extraordinary emergency situation is determined by the general standard of living and the beliefs in the country of residence. An “exceptional emergency” conceivable according to these standards due to the medical necessity of orthodontic treatment is usually limited to claims such as might exist in Germany. The Higher Social Court did not made sufficient findings in this regard. In the event of an exceptional emergency arising from orthodontic treatment, the amount of any cash benefits to be paid would be limited to those costs which, in Spain, would be eligible for social assistance. If such social assistance benefits are excluded in principle in Spain, an obligation on the part of the defendant to pay benefits would at most still be considered if serious, irreversible damage to health would occur in the event of non-treatment, for which, however, the facts of the case have so far provided no evidence after discontinuation of treatment.
Finally, the requested benefits must be examined to see whether they were also unavoidable. The costs of EUR 33.40 for dental treatment are not unavoidable because of their small amount and in view of the fact that the other existential needs are fully covered by the approval of current benefits to secure a livelihood and the health insurance cover that exists in principle. As far as the costs for orthodontic treatment are concerned, the benefits are only unavoidable if the financial requirements arising in this respect have not already been covered elsewhere before they were applied for. In particular, debts to third parties abroad are not (also) to be covered by social assistance funds.
Original German version of the judgment: B 8 SO 5/16 R
© Bundessozialgericht - 2024
