Parties are important links between voters on the one hand and parliament and the government on the other hand. While the state should have as little influence as possible on their actions, a militant democracy must be able to combat anti-constitutional parties. In order to reconcile both aspects, the Basic Law provides that proceedings for the prohibition of political parties are determined 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.
I. Proceedings Concerning the Prohibition of Political Parties
The proceedings are regulated in Art. 21 (2) 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 democratic basic order or to threaten the existence of the Federal Republic of Germany shall be unconstitutional (cf. Art. 21(2) first sentence of the Basic Law). Pursuant to the Federal Constitutional Court’s case-law, the mere dissemination of anti-constitutional ideas as such is not sufficient to fulfil these criteria. 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 are required which suggest that it is at least possible that the party will achieve its anti-constitutional aims.
The Bundestag, the Bundesrat and the Federal Government have legal ability to file an application.
First, the Federal Constitutional Court assesses in preliminary proceedings whether to open principal proceedings or whether to reject the application as inadmissible or as insufficiently substantiated. For this purpose, a preliminary assessment of the application’s prospects of success is carried out based on 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 the prohibition to establish substitute organisations. This decision, and any other decision adversely affecting the party, requires a two-thirds majority of the members of the Senate. Moreover, the Federal Constitutional Court may order that the assets of the party be confiscated.
II. Proceedings Concerning the Exclusion from State Funding
With the 2017 amendment of Art. 21(3) of the Basic Law, the legislature introduced the possibility of excluding political parties from state funding. If an exclusion from state funding is declared, the party and financial contributions made to it no longer benefit from preferential tax treatment.
Proceedings for the exclusion from state funding are set out separately in § 46a of the Federal Constitutional Court Act; they also receive a “BvB” file reference.
In these proceedings, too, the Bundestag, the Bundesrat and the Federal Government have legal ability to file an application. Preliminary proceedings must also be conducted. In contrast to the prohibition of political parties, the exclusion from state funding is not contingent upon a finding that the political party is potentially in a position to achieve its anti-constitutional aims. If the application proves to be well-founded, the Federal Constitutional Court declares that the political party be excluded from state funding for six years. This declaration also extends to substitute organisations.
The entities having legal ability to file an application may apply for a six-year extension of the exclusion from state funding. Repeated applications for extension are also admissible.
III. Proceedings to Date
So far, the Federal Constitutional Court has twice prohibited a party: The Socialist Reich Party (SRP) was prohibited in 1952, and the Communist Party of Germany (KPD) in 1956. Proceedings concerning the prohibition of the National Democratic Party of Germany (NPD) initiated in 2001 were discontinued in 2003 for procedural reasons. 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 existing free democratic basic order. However, the NPD was not prohibited as there were no indications that it would succeed in achieving its anti-constitutional aims.