Preliminary decision
Preliminary decision in German social law according to Section 328 SGB III refers to an administrative act on employment promotion benefits, in which benefits are granted temporarily, but without a final decision on the application. The provisional decision is also possible under Unemployment Benefit II according to Section 40 Paragraph 2 Point 1 SGB II .
The preliminary decision is a discretionary decision ; only in the case of point 3 does a legal claim to a preliminary decision exist. A preliminary decision can be made both on employee benefits (such as unemployment benefits ) and employer benefits (such as integration allowance ). A reimbursement of social security contributions according to § 26 SGB IV can also be decided as a provisional decision. ( Section 328 (4) SGB III) Since the purpose of the norm is the provision of cash benefits, benefits cannot be denied by way of a preliminary decision.
A preliminary decision is possible in accordance with Section 328 (1) SGB III in the following cases:
- an applicable legal provision may violate the Basic Law or European law and proceedings in this regard are pending before the Federal Constitutional Court or the European Court of Justice
- the decision depends on a point of law of fundamental importance, which are part of proceedings before the Federal Social Court is
- A longer period of time is required to determine the needs of the service recipient and the service recipient is not responsible for this and the prerequisites for receiving the benefit are likely to be present.
In practice, the last point is particularly relevant. A provisional decision is mainly issued if the income of the beneficiary cannot be determined in advance, which is the case for the self-employed or for employees with highly fluctuating income.
The provisionally paid benefits will be offset against the final benefits. If the application is rejected in the final decision or is only approved to a lesser extent, the overpaid benefits must be reimbursed. ( § 328 para. 3 SGB III) here has the authority no discretion, the beneficiaries can not be on the protection of legitimate called because the provision as a specific standard take precedence over the general rule of § 50 SGB X has.