The Federal Constitutional Court was called upon to resolve a dispute between federal organs (Organstreit). The action was filed by the “National-democratic Party of Germany” (hereinafter: “NPD”) against the Federal Minister for Family, Senior Citizens, Women and Youth (hereinafter: “the Minister”) over a statement made in a newspaper interview during the 2014 elections to the legislature of a federal state.
Asked, how one should deal with motions by the NPD, should the party obtain seats in the legislature, the Minister said: “But I will support the Thuringian campaign to ensure that such a situation does not even arise. It must be the top priority to prevent the NPD from winning seats in the legislature.”
According to the NPD, this statement violated her right to equal participation under the first sentence of Article 21.1 of the Basic Law.
The Federal Constitutional Court held that even though members of the Federal Government are bound by the principle of neutrality when they exercise their official functions, this principle applies to statements made by the members only if they make specific use of the authority or the resources of their government office. In the case at hand, such a specific use could be established neither from the interview itself nor from its context. Accordingly, the statement challenged by the NPD must be attributed to the field of political competition, which is not governed by the principle of neutrality.
The decision is based on the following considerations:
1. a) The right of political parties to equal participation in the political process is violated if state organs influence the political process by favouring or disfavouring individual parties. Taking such an influence violates the principle of state neutrality in the political arena and compromises the people’s possibility to make free and informed political decisions.
b) The standards that apply in such cases to statements by the Federal President are not transferable to members of the Federal Government as they are directly derived from the particular role the Basic Law assigns to the Federal President. As opposed to the Federal Government and its members, the Federal President does neither directly participate in the contest with other political parties nor does he or she possess comparable means to influence public opinion.
c) Due to the Federal Government’s status under the constitution and to its powers and functions, public statements by its members must be reviewed by a different standard.
aa) The Federal Government exercises functions of governing the state, which include the power to maintain public relations. This function encompasses inter alia the power to present and explain the government’s policies as well as to inform the public about questions of general interest – even outside of or well before its own political actions.
bb) In exercising these functions, the Federal Government is bound by the fundamental rights as well as by law and order (Articles 1.3 and 20.3 of the Basic Law). This fact alone bars the government from engaging in what in a different context would be judged as “vile criticism” in the meaning of §§ 185 et seq. of the Penal Code. This aspect notwithstanding, the Federal Government is obliged to respect the political parties’ right to equal participation from the first sentence of Article 21.1 of the Basic Law as well as the resulting principle of neutrality.
Since the government’s agenda reflects the positions of the parties of which it is composed and since the public associates its actions with these parties, public perception of such actions influences the governing parties’ chances of success in the political contest. This fact is part of the free democracy envisaged by the Basic Law and must be accepted as such. The Federal Government must, however, refrain from any actions that are apt to influence the political contest and are not part of its official functions. The Constitution bars it from identifying with any political party and from using the possibilities and state assets of which it disposes to aid or hinder any party.
cc) The same standards apply to individual members of the Federal Government. This does not, however, preclude holders of cabinet office from participating in political competition outside of their official capacity, as such a prohibition would constitute an unjustified discrimination of the governing parties.
d) Yet, holders of government office who participate in political competition must ensure that in doing so they do not use the means and possibilities of their office. Nevertheless, one must take into account that it is impossible to strictly assign actions of government members to the fields of “Federal Minister”, “party politician” or “private individual”. Public perception, too, views holders of government office both as Federal Ministers and as members of their party.
Which field individual statements belong to, must be established on a case-by-case basis. Statements will usually fall into the field of “Federal Minister” if they make express references to the government office or if they exclusively concern actions of the respective ministry. The same goes for statements that are made through official channels such as press releases etc. A statement’s context, too, may warrant such a classification: e.g. using state insignia or financial means or making the statement on the ministry’s premises. The same applies to statements made in the context of government events or events in which the minister participated exclusively in his or her official capacity. Participating in party events like conventions etc., however, qualifies as mere participation in the political contest.
Events of general political discussion such as talk shows, interviews etc., on the other hand, must be examined in a differentiated manner: holders of government office may participate in any one event both in their official capacity and as private individuals or members of their party. Limiting holders of government office to official statements would violate the parties’ right to equal participation. However, statements that make specific use of the office’s authority must comply with the principle of neutrality.
e) The question of whether the principle of neutrality applies and whether it has been complied with, is subject to complete judicial review by the Federal Constitutional Court.
2. According to these standards, the challenged statement did not violate the applicant’s right to equal participation from the first sentence of Article 21.1 of the Basic Law, as it constituted a mere act of participation in the political contest and was not subject to the principle of neutrality under the first sentence of Article 21.1 of the Basic Law. If the applicant wishes to counter such statements, it must do so using the means of political competition.