A Vote of Confidence for the German Democratic Order — The German Federal Constitutional Court Ruling on the Application to Ban the National Democratic Party

Stefan Theil

University of Cambridge

On 17 January 2017, the German Federal Constitutional Court (FCC) ruled on the application of the German Federal Council to find that the far right National Democratic Party of Germany (NPD) unconstitutional pursuant to Article 21 para. 2 of the German Basic Law. This constituted the second such party ban application against the NPD after the initial attempt in 2001 had failed on procedural grounds, chiefly due to the involvement of domestic intelligence agency informants in the higher echelons of the party. Having been assured that these informants were no longer operating, the most recent application passed the admissibility hurdle, but was ultimately not successful on the substance: the FCC found that while the NPD was clearly determined to undermine and abolish key features of the free democratic basic order of Germany, its actions had such little prospect of success that it could not be deemed unconstitutional. The judgment was published in German along with an English summary. The notes in parenthesis refer to the margin numbers of the German version of the judgment unless expressly stated otherwise.

The decision provoked a variety of comments from legal scholars: some see it as a further indicator of a creeping retreat from the founding principles of liberal constitutions, others question the procedure as such for the same reasons, arguing that it entails the risk of banning merely uncomfortable political views that ought to be tolerated. The prevailing view among German scholars appears to be that the judgment is a call to further action from civil society to meet the political challenge that the NPD (and its ideological cousin, the Alternative für Deutschland – AfD) presents, with some seeing it as an impetus to limit public financing of political parties that oppose the free democratic basic order. Following a brief historical background on the successful applications to ban the Sozialistische Reichspartei (SRP), and the German Communist Party (KPD), as well as the previous attempt to ban the NPD, I will turn to the key findings of the latest ruling.

Before the ruling last week, the FCC had engaged with three notable applications for party bans. First came the FCC ruling banning the right-wing SRP in 1952 (BVerfGE 2, 1), the ideological successor of the NSDAP: a party that represented everything the newly established German constitutional order rejected. This was not necessarily so with respect to the KPD in 1956 (BVerfGE 5, 85), the object of the second ruling, at least not initially: the party had itself suffered from persecution under the Nazi regime. However, its goal of a Marxist-Leninist reorganization of the German State and the associated policy of a ‘dictatorship of the proletariat’ ultimately led the FCC to conclude that the party was unconstitutional. Both these judgments were made against the backdrop of a fledgling democratic State that was still asserting itself in the midst of the unprecedented economic recovery known as the Wirtschaftswunder. For decades, that was the extent of notable attempts to ban political parties, until the FCC was first called upon to consider a ban of the NPD in 2001 (BVerfGE 107, 339). This application failed at the admissibility stage, and hence did not offer much towards developing the substantive requirements for a party ban.

Based on the two successful party ban applications, the FCC developed several criteria to clarify the requirements laid out in Article 21 para. 2 of the Constitution. The provision is cited in bold, with the corresponding clarification in regular print. The provision states that: Parties that, by reason of

• their aims, which are determined chiefly through party manifestos and speeches, works of its influential authors, as well as party publications (BVerfGE 5, 85 at [259]).
• or the behaviour of their adherents, which encompasses party members, supporters, and adherents (BVerfGE 2, 1 at [55]; BVerfGE 5, 85 at [259])
• seek to, this requires an ‘actively combative and aggressive attitude’, which expressly did not require realistic prospects for success in the foreseeable future (BVerfGE 5, 85 at [251] and [256])
• undermine or abolish the free democratic basic order, which comprises amongst other principles, human dignity and human rights, sovereignty of the people, separation of powers, accountability of government, the principle of legality, independence of the judiciary, a pluralistic party system and equal opportunities for political parties (BVerfGE 2, 1 at [37-38]; BVerfGE 5, 85 at [514-528])
• or to endanger the existence of the Federal Republic of Germany,

shall be unconstitutional.

The recent judgment of the FCC has now confirmed most of these criteria and ultimately concluded that the NPD is in fact seeking to undermine the free democratic basic order through its insistence on an ethnically determined Volksgemeinschaft and an authoritarian nationalistic State, which violates the principles of human dignity and democracy (at [634]). However, it then reconceptualised the ‘seek to’ criterion in a significant departure from the KPD judgment, a move that has been criticized by some commentators as introducing more uncertainty and problems through a third category in-between constitutional and unconstitutional parties. Indeed, the FCC now requires, in a clear departure from earlier case law, that even if a party actively seeks to undermine the free democratic order it will only be declared unconstitutional if it appears possible that it will be successful.

The reasoning offered by the FCC commences by stating that there can be no prohibition on political views and ideologies as such (at [571]). Therefore, for a ban to be imposed, a party must not only have anti-constitutional aims, but must also act on them. On the one hand, the FCC agreed with the KPD-ruling to the extent that it is not necessary that these actions rise to the level of a specific threat (at [581]), but, in a crucial departure, held that there must be ‘specific indications that at least make it appear possible that the party will be successful in achieving its anti-constitutional aims’ (at [585]). This holds true as long as the party does not resort to violence or criminal acts, which the FCC held would always suffice to meet the criterion of ‘seek to’, or if the party actions are capable of undermining free and equal participation in the political process, even if only at a regional level (at [588]).

The FCC made it clear that Article 21 para. 2 is not amenable to the introduction of further (unwritten) requirements, beyond those expressly contained in the provision (at [590]). Crucially, this extends to the principle of proportionality which is otherwise ubiquitous in German constitutional law: the principle is not applicable to Article 21 para. 2 (at [600]). The FCC argues that the express wording of the Constitution does not allow for any level of discretion in the decision to impose a ban, and hence a proportionality test has no basis. This would appear somewhat at odds with case law from the European Court of Human Rights, although the FCC is at pains to demonstrate that it is nonetheless compatible (at [617]).

The FCC thus proceeds to apply the reconceptualised understanding of ‘seek to’ to the NPD, and deemed that it was not met in this case: based on the facts before it, the FCC found the NPD had no realistic prospects of implementing its aims, and that none of the acts of violence referred to in the application were unequivocally attributable to the party. In support of this conclusion the FCC drew on the dwindling membership numbers, precarious financial situation, and the NPD’s (lack of) electoral success (at [896] – [1008]). In what may well be interpreted as a decision contributing to the party’s financial worries, the FCC declined to award costs despite the ultimately unsuccessful application for a ban (at [1009]).

After all this, is the judgment a step forward for Germany and its liberal Constitution? It is undoubtedly a doctrinally rich and considered judgment. It advances the requirements for a party ban in largely sensible directions, and displays a refreshing degree of political sensitivity and consideration for the common good. It is in my view a judgment that is both a testament to and an expression of faith in the democratic order of Germany: an injection of constitutional optimism for a German society that must adapt to fight extremist ideologies chiefly in the political, rather than the legal arena. First and foremost, this requires engaging with at times uncomfortable viewpoints, an active engagement of civil society in political debate and tolerance of dissent: for this deeply political process, parties and the special protections the Basic Law affords them, are indispensable. Unlike in the decade following the Second World War, German civil society and its democratic order are now mature and resilient enough to tolerate a minority of radical dissenters without recourse to the double-edged sword of a party ban: this weapon of last resort against those who actively seek to abolish the very foundation upon which free and equal political discourse rests remains sheathed for the time being.

Stefan Theil is a PhD candidate in Law at the University of Cambridge. Post originally published on the UK Constitutional Law Association blog.