Political parties are important links between voters on the one hand and Parliament and Government on the other. While the state should have as little influence as possible over the activities of political parties, a militant democracy must be able to combat parties that are anti-constitutional. In order to reconcile both aspects, the Basic Law provides that proceedings for the prohibition of a political party are decided by the Federal Constitutional Court, rather than by the executive. This ensures that the decision is rendered by an independent court solely on the basis of constitutional standards.
Proceedings for prohibition
Proceedings for the prohibition of a political party are governed by Art.21(2) of the Basic Law and §§ 43 ff. of the Federal Constitutional Court Act; such applications receive a ‘BvB’ file reference.
Parties that, in view of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany must be declared unconstitutional (cf. Art. 21(2) first sentence of the Basic Law). According to the Federal Constitutional Court’s case-law, the mere dissemination of anti-constitutional ideas as such is not sufficient. To be declared unconstitutional, a party must also take an actively belligerent, aggressive stance vis-à-vis the free democratic basic order and must seek to abolish it. In addition, specific indications must suggest that it is at least possible that the party will achieve its anti-constitutional aims.
The Bundestag, the Bundesrat and the Federal Government can file applications.
In preliminary proceedings, the Federal Constitutional Court determines whether to open principal proceedings or whether to dismiss the application as inadmissible or as insufficiently substantiated. For this purpose, an initial assessment of the application’s prospects of success is made on the basis of the information on record.
If the application proves to be well-founded in the principal proceedings, the Federal Constitutional Court declares that the political party is unconstitutional, orders the dissolution of the party and prohibits the establishment of substitute organisations. This decision, and any other decision adversely affecting the party, requires a two-thirds majority of the Justices in the Senate. Moreover, the Federal Constitutional Court may order that the assets of the party be confiscated.
Proceedings for the exclusion from state funding
In 2017, the legislator amended Art.21(3) of the Basic Law, introducing the possibility of excluding political parties from state funding. An exclusion from state funding has the added effect of cancelling the preferential tax treatment afforded to the party and to any financial contributions made to the party.
Proceedings for the exclusion from state funding are separate proceedings set out in § 46a of the Federal Constitutional Court Act; they also receive a ‘BvB’ file reference.
In this type of proceedings, too, the Bundestag, the Bundesrat and the Federal Government can file applications. Preliminary proceedings must likewise be conducted.
Unlike the prohibition of a political party, an exclusion from state funding is not contingent upon the finding that the political party is potentially in a position to achieve its anti-constitutional aims.
If the application is well-founded, the Federal Constitutional Court declares that the political party will be excluded from state funding for six years. This declaration also applies to substitute organisations.
The organs with legal ability to file an application may apply for a six-year extension of the exclusion from state funding. Such applications for extension can be renewed.
Proceedings to date
So far, the Federal Constitutional Court has twice prohibited a party: the Sozialistische Reichspartei (SRP) was prohibited in 1952 and the Kommunistische Partei Deutschlands (KPD) in 1956. Proceedings for the prohibition of the Nationaldemokratische Partei Deutschlands (NPD), initiated in 2001, were discontinued in 2003 on procedural grounds. On 17 January 2017, the Federal Constitutional Court again decided on the prohibition of the NPD. The Second Senate found that the NPD advocates a political concept aimed at abolishing the free democratic basic order. However, the NPD was not prohibited as there was no indication that it would succeed in achieving its anti-constitutional aims.