Parties are important links between voters on the one hand and parliament and government on the other hand. The state should have as little influence as possible on their activity. However, a militant democracy must be able to combat anti-constitutional parties. In order to do justice to both aspects, the Basic Law has assigned the power to conduct proceedings for the prohibition of political parties not to the executive but to the Federal Constitutional Court. This ensures that an independent court decides pursuant to standards of constitutional law alone. The proceedings are regulated in Art. 21 (2-4) of the Basic Law and in §§ 43 et seq. of the Federal Constitutional Court Act. Proceedings concering the prohibition of a political party receive a “BvB” file reference.
Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free and democratic basic order of Germany or to endanger the existence of the Federal Republic of Germany shall be unconstitutional (cf. Art. 21 (2) of the Basic Law). Pursuant to the Federal Constitutional Court’s case-law to date, the mere dissemination of anti-constitutional ideas as such is not enough to fit these criteria; the party must also take an actively belligerent, aggressive stance vis-à-vis the freedom-based democratic fundamental system and must wish to abolish this system.
The Bundestag, the Bundesrat and the Federal Government are entitled to file an application.
First, the Federal Constitutional Court assesses in preparatory proceedings if principal proceedings should be instituted or if the application must be rejected as inadmissible or as insufficiently substantiated. This is done by preliminarily assessing the application’s prospects of success on the record.
If in the main proceedings, the application proves to be well-founded, the Federal Constitutional Court holds that the political party is unconstitutional, declares the dissolution of the party and the prohibition to establish substitute organisations. This decision, and any other decision that is to the detriment of the party, requires a majority of two thirds of the Senate’s members. Moreover, the Federal Constitutional Court may declare the property of the party to be confiscated.
So far, the Federal Constitutional Court has twice prohibited a party: In 1952, the Socialist Reich Party (SRP) was prohihited, and in 1956, the Communist Party of Germany (KPD). Proceedings concerning the prohibition of the National Democratic Party of Germany (NPD) instituted in 2001 were discontinued in 2003 for procedural reasons. On 17 January 2017, the Federal Constitutional Court again decided on the prohibition of the National Democratic Party of Germany (NPD). The Second Senate found that the NPD advocates a political concept aimed at abolishing the existing free democratic basic order. However, the NPD was not prohibited as there are no indications that it will succeed in achieving its anti-constitutional aims.