Violation of a party’s right to equal opportunities in the political competition by a press release issued by a Federal Minister

Press Release No. 10/2018 of 27 February 2018

Judgment of 27 February 2018

2 BvE 1/16

If with regard to a political event organised by a political party, state organs give a negative assessment that is capable of having a deterrent effect and thereby influence the behaviour of persons who are potential participants in the event, this interferes with the right of the party concerned to equal opportunities under Art. 21(1) first sentence of the Basic Law (Grundgesetz – GG). This holds true not only during election campaigns. The Federal Government’s right to explain its measures and projects certainly includes the power to deal in an objective way with critical objections raised against the political endeavours. There is, however, no “right to counter-attack” that would allow state organs to react to unobjective and defamatory attacks in the same way. Thus was the decision by the Second Senate of the Federal Constitutional Court in a judgment pronounced today, establishing that the Federal Minister of Education and Research, by publishing press release no. 151/2015 of 4 November 2015 on the website of her ministry, violated the right of the party “Alternative for Germany” (Alternative für Deutschland – AfD) to equal opportunities of political parties.

Facts of the case:

The applicant, the party “Alternative for Germany”, was the organiser of the assembly “Red Card for Merkel – Asylum Needs Limits!” registered to take place in Berlin on 7 November 2015. With reference to this assembly, the respondent, the then Federal Minister of Education and Research, published a press release on 4 November 2015 on the website of her ministry. In this press release, she commented on the planned demonstration as follows: “The red card should be shown to the AfD and not to the Federal Chancellor. Björn Höcke and other spokespersons of the party foster the radicalisation of society. Right-wing extremists who openly incite hatred and violence, such as Mr Bachmann, the Head of Pegida (Patriotische Europäer gegen die Islamisierung des Abendlandes, Patriotic Europeans against the Islamisation of the Occident), thus receive intolerable support.”

Key considerations of the Senate:

1. a) In the free democracy under the Basic Law, all state authority is derived from the people, who exercise it through elections and other votes, as well as through specific legislative, executive and judicial organs. This requires that the voters can pass their judgment in a free and open opinion-forming process. In this context, political parties are of crucial significance. In order to guarantee the openness of the formation of the political will as required under constitutional law, it is indispensable that parties participate, as far as possible, in the political competition on an equal footing. Art. 21(1) GG guarantees the political parties not only the right of establishment and the possibility of participating in the formation of the political will, but also that such participation is based on equal rights and equal opportunities. This also includes the right of the parties to organise assemblies in order to participate in the political competition. Demonstrations are an important means within the political debate – and for opposition parties in particular.

b) Equal opportunities to participate in the formation of the political will of the people require that state organs be neutral in the political competition of the parties. The state organs, as such, must serve everyone and be neutral. Their interference during election campaigns in favour or at the expense of a political party contradicts the status of parties resulting from Art. 21(1) GG. However, the principle of equal opportunities of the parties requires observance of the principle of state neutrality not only during election campaigns. For the process of the development of political opinions is not restricted to election campaigns but takes place continuously. It is generally not compatible with Art. 21(1) first sentence GG if state organs use the announcement or realisation of a political rally as an opportunity to take a one-sided stand on the rally or on the party organising it, thereby violating the principle of neutrality. This is the case if the actions of state organs are aimed at influencing the realisation of political demonstrations or the behaviour of potential participants. In organising a political rally, a party fulfils the constitutional mandate assigned to it under Art. 21(1) GG. With a view to their obligation to be neutral, state organs are obliged to tolerate this. They are not called upon to induce citizens to participate, or not to participate, in demonstrations announced by political parties. Any negative assessment of a political event that is capable of having a deterrent effect and thereby influences the behaviour of potential participants in the event, interferes with the right of the party concerned to equal opportunities under Art. 21(1) first sentence GG. Moreover, if state organs take a political rally as an opportunity to pass value judgments on the party that organises it, this also constitutes an interference.

c) Even if the Federal Government makes use of its power to inform and to maintain public relations, this does not exempt it from its duty to observe the principle of neutrality. Through its authority and its access to state resources, it can strongly influence the formation of the political will of the people. As part of the political process of a free democracy as the Basic Law understands it, it must therefore be tolerated that government actions have a considerable impact on the electoral opportunities of competing political parties. This, however, must be distinguished from the Federal Government’s targeted interference in the competition of the political parties. Under the Constitution, the Federal Government may not identify with individual parties and may not make use of the available means and possibilities in their favour or at their expense.

d) Against that background, the Federal Government is indeed entitled to publicly refute attacks directed against its policies. However, in presenting government actions and in its response to criticism of such activities, it must observe the required objectivity. The principle of neutrality obliges the Federal Government to refrain from statements in which it takes a one-sided stand in favour or at the expense of individual political parties. When the Federal Government explains its policies and refutes objections thereto, it may not use this as an opportunity to advertise for governing parties or to fight opposition parties. Instead, it must restrict itself to explaining its political decisions and to deal with objections thereto in an objective, facts-based manner. Like all state action, the Federal Government’s information and public relations activities are subject to the requirement of objectivity. This does not exclude the clear and unequivocal rejection of incorrect representations of facts or of discriminating value judgments. There is, however, no “right to counter-attack” that would allow state organs to react to unobjective and defamatory attacks in the same manner.

e) Nothing else applies to the right of an individual member of the Federal Government to make statements. If government members take part in the political debate without acting in their official capacity, it must be ensured that no use is made of means and possibilities of the state which are not available to their political competitors. Equality of opportunities in the political competition is impaired if government members, when taking part in political debates, use possibilities and means that are opened to them by their government functions and are not available to their political competitors. Whether a government member made a statement in exercise of his or her function as a minister must be determined depending on the circumstances of each individual case. A statement is deemed to be made in an official government capacity particularly if the office holder voices it in official publications, press releases or on the official website of his or her area of responsibility, or if state symbols and national emblems are used.

2. Measured against these standards, the respondent, through her press release, violated the applicant’s right to equal opportunities under Art. 21(1) first sentence GG.

When issuing the press release, the respondent exercised her government functions by publishing the statement on the website of her ministry, using the ministry’s official coat of arms, thereby making use of resources available to her because of her ministerial functions. By disseminating the press release on the website of her ministry, she disrespected the principle of neutrality of state organs in the political competition. For the press release contains one-sided, negative assessments of the applicant as well as an attempt to influence the behaviour of persons who are potential participants in the demonstration planned for 7 November 2015. The derogatory classification, contained in the published statements, of the applicant as a party that fosters right-wing extremism and the radicalisation of society is capable of undermining the party’s position in the political debate. By using the “red card” metaphor, the respondent clearly urges [potential participants in the demonstration] to distance themselves from the applicant. In doing so, the respondent one-sidedly influences the political competition at the applicant’s expense. Apart from this, the press release aims at influencing the behaviour of potential participants in the demonstration planned by the applicant for 7 November 2015. The press release recognisably expresses the respondent’s opinion that participation in this rally would strengthen a party whose spokespersons foster the radicalisation of society and support right-wing extremists. Against that background, the claim to show such a party the “red card” is at least an indirect invitation to stay away from the planned demonstration. This disrespects the principle of the neutrality of state organs in the political competition.

The interference with the applicant’s right to equal opportunities resulting from the press release of 4 November 2015 is not justified by the respondent’s right to publicly explain government actions and to refute objections thereto. At any rate, the press release exceeds the boundaries of the government’s official public relations activities, which result from the principles of neutrality and objectivity. The press release neither informs about government actions, nor does it refute objections in an objective way. Indeed, the press release refers to the demonstration that was announced by the applicant for 7 November 2015 and directed against the Federal Government’s refugee policies. However, the press release does not contain any explanatory information on the actions of the Federal Government with regard to its refugee policies or another area of policy. Moreover, the press release lacks any objective appraisal of the objections raised against actions taken by the Federal Government or by the Federal Chancellor. Instead, it contains the respondent’s call to show the applicant the “red card”, and thus at least an invitation to stay away from the demonstration on 7 November 2015. Conversely, however, it does not contain any information on political measures and projects of the Federal Government or a rejection of objections raised thereto. Instead, it attacks the applicant in the political competition on the occasion of the announcement of a political rally. Thus, the respondent exceeds the boundaries of the Federal Government’s permissible public relations work and of that of its members.