Federal Constitutional Court - Press office -

Press release no. 15/2013 of 5 March 2013

Order of 20 February 2013 – 2 BvE 11/12 –

Applications made by the NPD against Bundestag, Bundesrat and 
Federal Government unsuccessful


In an order published today, the Second Senate of the Federal 
Constitutional Court rejected an application made by the National 
Democratic Party of Germany (NPD) for a declaration that it is not 
unconstitutional. The Federal Constitutional Court Act does not provide 
proceedings for the declaration sought. Furthermore, this does not 
entail a gap in legal protection with regard to the NPD’s assertion that 
the effect of the current debate about a prohibition of the party was de 
facto that of a party ban. Government agencies are not prevented from 
putting up for discussion the pros and cons of party ban proceedings 
with the required objectivity. The Second Senate also rejected the NPD’s 
auxiliary application to establish that the German Bundestag, the 
Bundesrat and the Federal Government violated the NPD’s rights as a 
party by continually alleging its unconstitutionality. 

The decision is essentially based on the following considerations: 

1. The main application is inadmissible. The Federal Constitutional 
Court Act does not provide a party with the option to invoke the Federal 
Constitutional Court’s jurisdiction for a declaration of its 
constitutionality. 

a) Political parties are free to exercise their rights as long as the 
Federal Constitutional Court has not established their 
unconstitutionality. If it is contested that they are entitled to 
exercise these rights, they can take recourse to the courts. The 
applicant’s objection that it is too much for a party which is branded 
as unconstitutional to seek legal protection in every individual case, 
and that apart from this, legal protection often proves ineffective, 
does not show a structural deficit with regard to legal protection. The 
applicant merely names practical problems which can recognisably be 
handled with reasonable effort. 

b) A deficit in legal protection is not cognizable either with regard to 
the applicant’s allegations that the statements which it labels “debate 
on a ban” (Verbotsdebatte), and the other measures directed against it 
have the same effect as a ban. 

aa) In accordance with their function to participate in the formation of 
the political will of the people, political parties must face public 
dispute. Statements on the assessment of a political party as 
unconstitutional are part of the public dispute as long as they keep 
within the limits of statute and law. The party affected can, and must, 
counter such statements with the means available to it in the struggle 
of opinions. 

If state agencies engage in political dispute, they must respect the 
limits set to them by the Constitution. Observance of these limits is 
open to judicial review. This also applies to the public discussion of 
whether proceedings to ban it are opened against a party. In such a 
case, however, it is possible that the party’s rights under Art. 21 sec. 
1 of the Basic Law (Grundgesetz – GG) are violated if the objective of 
such a debate is not to decide this question but to discriminate against 
the party affected. 

bb) Apart from this, recourse to the courts is open to the political 
parties and their members in order to counter the allegation of 
unconstitutionality. The applicant does not at all ignore that the 
constitutionality of a political party can be, and indeed is, the 
subject of judicial assessment. If it concludes from losing such actions 
before the ordinary courts that there is a gap in legal protection, this 
conclusion is implausible. 

cc) For these reasons, it is also unobjectionable that the respondents 
have not provided for proceedings for the establishment of the 
constitutionality of a party in the Federal Constitutional Court Act. 

2. As an action of one public body against another, the auxiliary 
application is permissible; its reasoning, however, makes it 
inadmissible. It has not been sufficiently stated that the applicant’s 
status as a party has been violated, or is directly endangered, by the 
respondents’ measures or omissions. The applicant quotes statements by 
Länder minister-presidents, Länder Ministers of the Interior, individual 
members of the Bundestag and a federal minister. However, it is not 
cognizable that the persons mentioned intended to make statements on 
behalf of one of the respondents. Even measures by a federal minister – 
such as support for programmes against right-wing extremism – cannot 
necessarily be attributed to the Federal Government as a collegiate 
body. 


This press release is also available in the original german version.