Higher Social Court (LSG) - Hesse, Decision as of 7/14/2011
File number L 7 AS 107/11 B

Key issues

Important ruling by the Social Court involving social security benefits for a Romanian family; court held that precluding job-seeking EU citizens from receiving benefits probably violates the equality of treatment principle under European law; comments on summary proceedings; unmarried partner not a family member within the meaning of the German Act on the Freedom of Movement of EU Citizens (FreizügG/EU); "able to work" within the meaning of section 8 of the second Social Security Code (SGB II) also includes EU citizens if there is a possibility of being granted a work permit.


The Higher Social Court ordered, in summary proceedings the administering public body to pay basic social welfare benefits pursuant to the SGB II to job seekers (unemployment benefits) until the final decision in the main matter.

The applicants were an unmarried Romanian couple with five children whose claims to benefits pursuant to the SGB II (unemployment benefits) had been denied in previous proceedings, the details of which were not gone into. On an appeal to the Higher Social Court against the decision of the Social Court of first instance, the couple petitioned for and was largely granted interim relief in summary proceedings.
The Higher Social Court first discussed the requirements for obtaining interim relief in summary proceedings.
If the outcome of the main proceedings is uncertain due to difficulties with respect to the facts or the law, then the court must review the consequences for the parties of waiting for a decision in the main action, i.e. it must decide which of the parties is better able to endure the wait. The court was of the opinion that, especially when claims involve the securing of the minimum subsistence of a person, the interests of the applicant in having his/her minimum subsistence secured must take precedence over the interests of the administering public body in preventing the payment of unjustified benefits.

In summary proceedings for interim relief, the court only had to make a summary review of whether in this case a claim to unemployment benefits was possible. The court explicitly reviewed the issue of whether benefits were to be precluded on the basis of section 7 (1) sent. 2 no. 2 SGB II. This section operates to preclude benefits to those applicants whose right of residence derives solely from job-seeking purposes.

The issue as to which EU citizens have a right of residence in Germany is determined by the FreizügG/EU. According to section 2 (2) no. 2 FreizügG/EU, EU citizens enjoy freedom of movement if they are entitled to practice an independent occupation. With respect to the man in the present case, the court held that his entitlement to freedom of movement had already been established on the basis of his independent occupation as a dealer in used goods.
The court discussed the requirements for a presumption of an independent occupation, especially regarding the amount of profits. According to decisions of even the highest Social Court, a monthly income as low as EUR 100 will be regarded as sufficient. For a claim to unemployment benefits, section 8 (2) SGB II additionally requires that the applicant be allowed as a foreign national to practice the occupation. The legal possibility that such an allowance can be granted is sufficient. This was the case for the applicant as he was an EU citizen of a new EU Member State.

The woman was not entitled to a right of residence as a family member pursuant to the FreizügG/EU since it does not apply to an unmarried partner. Since her residency right would therefore be derived solely from job-seeking purposes, a claim to unemployment benefits would be precluded by operation of section 7 (1) sent. 2 no. 2 SGB II. The court, however, referred to other decisions and held that such a preclusion of benefits is incompatible with the equality of treatment provisions of Article 4 of Regulation (EC) No 883/2004, which came into force in May 2010. Article 4 provides that members of another Member State are to be granted social security benefits under the same conditions as nationals of a Member State.

Therefore, since it was highly likely in the opinion of the court that the applicant had a claim, the court ordered the administering public body in the summary proceedings to temporarily pay basic social welfare benefits in order to avoid endangering the person’s subsistence. The court also ordered the temporary payment of the sum necessary to pay accumulated rent.

Decision in full text:

LSG_Hessen_14_07_2011 (PDF, 33 KB, not barrier-free, in German)

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