Application for a preliminary injunction against statements by the Federal Minister of the Interior unsuccessful

Press Release No. 79/2018 of 09 November 2018

Order of 30 October 2018
2 BvQ 90/18

In an order published today, the Second Senate rejected an application for a preliminary injunction by the political party Alternative für Deutschland (AfD) and by the AfD parliamentary group in the Bundestag. The application sought an order obliging the Federal Minister of the Interior, in his capacity as Minister, to refrain from making, in the interim, certain statements taken from an interview, as well as to remove this interview from the Ministry’s homepage. In the interview, the Federal Minister of the Interior stated that the applicants or their members were against the state and acted in a manner that is corrosive to the state. In its reasoning, the Senate stated, in particular, that there is no recognised legal interest in bringing the action at hand, given that the statements made had already been removed from the Ministry’s website and that the applicants failed to show that there were any indications of the intention to repeat these statements.

Facts of the case:

On 14 September 2018 the Federal Ministry of the Interior, Building and Community posted, on its website, an interview by the German Press Agency (Deutsche Presse-Agentur – dpa) with the Minister. In the interview, the Minister stated the following with regard to the applicants: “They are against this state. It doesn’t matter if they say they are democrats a thousand times. You saw for yourselves on Tuesday in the Bundestag the all-out attack on the Federal President. That is extremely dangerous for our state. It must be strongly condemned. One cannot stand up in the Bundestag and bawl out the Federal President like at the fair. That is corrosive to the state.” Since 1 October 2018, the interview can no longer be accessed on the homepage. The political party Alternative für Deutschland and its parliamentary group in the Bundestag seek, by way of preliminary injunction, an order obliging the respondent to refrain from making the aforementioned statements in the interim in his capacity as a Federal Minister.

Key considerations of the Senate:

The application for a preliminary injunction is unsuccessful.

1. In respect of the AfD parliamentary group in the Bundestag, the issuance of a preliminary injunction already fails on the grounds that an application filed on the basis of their submissions in the principal proceedings would be inadmissible for lack of standing to file it. Parliamentary groups, as necessary institutions of constitutional life, are indeed entitled to assert their own rights in the context of Organstreit proceedings (dispute between constitutional organs), where these rights are anchored in the Constitution, or to assert the rights of Parliament in its entirety, where these are infringed or directly endangered. However, the own rights that can be asserted by parliamentary groups in the course of Organstreit proceedings must belong to the intraparliamentary sphere. The right to equal opportunities in the competition of political parties enshrined in Art. 21(1) first sentence of the Basic Law (Grundgesetz – GG), which the parliamentary group invokes in its application, cannot be claimed as an own right vis-à-vis the respondent in Organstreit proceedings, nor can it be claimed by the Bundestag as a whole. 

2. To the extent that the AfD’s request seeks to compel the respondent to remove his interviews from the Ministry’s homepage, it has failed to demonstrate a recognised legal interest in a preliminary injunction, given that this request has already been fulfilled. Since 1 October 2018, the interview can no longer be accessed on the homepage of the respondent’s Ministry. A preliminary injunction, compelling the respondent to remove the interview from the homepage, would be devoid of purpose.

3. To the extent that the AfD seeks an order obliging the respondent, in his function as Minister of the Interior, to refrain from repeating elsewhere the statements made in the interview of 14 September 2018, the application concerns future actions of the respondent and thus seeks the granting of preventive preliminary legal protection for which, in principle, neither the Basic Law nor the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz) make any provision. Furthermore, it is not ascertainable from the applicants’ submissions that the issuance of the preliminary injunction is required in order to guarantee effective legal protection. This is already underscored by the fact that there is no specific indication that the respondent intends to repeat the statements in question while making use of the authority of his governmental office. This can be readily assumed on the basis of the deletion of the statements from the homepage of the Ministry. While the applicants did submit that the interview was only removed so that the respondent could repeat the statements in question all the more on all other media streams not yet forbidden to him, this constitutes a mere supposition which was not established on the basis of any fact. The circumstance, too, that the Ministry considers the statements from the interview and their temporary posting on the homepage to be compatible with the principle of neutrality does not lead to another conclusion. The Ministry merely underlines a legal position against the backdrop of potential principal legal proceedings. This cannot be construed as meaning that the respondent intends to repeat the statements in question while making use of the authority of his governmental office, without waiting for the outcome of the principal proceedings.