The publication of an interview on the website of the Federal Ministry of the Interior violates the right of a political party to equal opportunities in the political competition

Press Release No. 45/2020 of 09 June 2020

Judgment of 9 June 2020
2 BvE 1/19

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court decided that the Federal Minister of the Interior, Building and Community violated the rights of the political party Alternative für Deutschland (AfD) by publishing an interview on the website of the Ministry. In the interview, he criticised the applicant and made negative comments on it. The statements made by the Minister in the interview are not objectionable under constitutional law given that they form part of his participation in the political debate. However, by publishing the interview on the Ministry’s website, the Federal Minister of the Interior used resources that are available to him only because of his government office to participate in the political debate. This is in breach of the state’s duty of neutrality and thus violates the applicant’s right to equal participation in the political competition.

Facts of the case:

On 14 September 2018, the Federal Ministry of the Interior, Building and Community published an interview conducted by the German Press Agency (Deutsche Presse-Agentur – dpa) with the Minister on its website. In the interview, when asked for his opinion on the applicant, the Minister stated the following: “They are against this state. It does not matter if they say they are democrats a thousand times. You could see this for yourself on Tuesday in the Bundestag when they attacked the Federal President head-on. This is extremely dangerous for our state. It must be strongly condemned. One cannot get up in the Bundestag and berate the Federal President like at the fair. That is corrosive to the state.” As the interview went on, the Minister also stated that this conduct had been “simply poor”. Then, when asked whether the AfD had become more radical, he answered in the affirmative and added “Riding the current wave, they simply became overconfident and their mask has slipped. It has thereby also become easier to expose them than while they were acting as upstanding citizens.” Finally, he stated “What alarms me about the AfD is the collective degree of emotionality and the angry outbursts – even in debates on the rules of procedure. We cannot treat each other in such a manner – not even if you are part of the parliamentary opposition.” Since 1 October 2018, the interview has no longer been available on the Ministry’s website. By way of the Organstreit proceedings, the applicant seeks a declaration to the effect that publishing the interview violated its rights.

Key considerations of the Senate:

I.1. In the free democracy under the Basic Law, all state authority is derived from the people, who exercise it in elections and votes and through specific legislative, executive and judicial bodies. This requires that voters come to a decision in a free and open opinion-forming process. Political parties are of vital importance to this process. The, insofar as possible, equal participation of parties in the political competition is indispensable in order to ensure an open formation of the political will, as is required under constitutional law. Not only does Art. 21(1) of the Basic Law (Grundgesetz – GG) guarantee that political parties may be freely established and have the opportunity to participate in the formation of the political will, but also that such participation is in line with equal rights and equal opportunities.

2. This right is violated where state organs influence election campaigns to the benefit or detriment of a political party or of candidates standing for election. State organs as such must serve everyone and be neutral. Taking a side during an election campaign violates the neutrality of the state vis-à-vis political parties and the integrity of the formation of the political will of the people in elections and votes. The principle of equal opportunities of political parties requires that the principle of neutrality of the state be observed not just during election campaigns, given that the formation of the political will is an ongoing process that is not restricted to election campaigns.

3. The power to inform the public and to maintain public relations is an integral part of the task of governing. This power is not just permissible under constitutional law but necessary in order to preserve a basic consensus within a democratic community and to enable citizens to independently participate in the formation of the political will and tackle current problems. It must, however, be considered that the Federal Government’s authority and the state resources at its disposal put it in a position where it can exercise lasting influence over the formation of the political will of the people. This carries the risk that the political competition of the parties is considerably distorted and the process of the formation of the political will is reversed so that it originates from the state rather than the people. Thus, the Federal Government’s public relations activities are no longer permissible where it uses its influence in favour of or against individual competing political parties or persons.

Against that background, the Federal Government is entitled to publicly refute attacks against its policies; it must, however, observe the required objectivity when providing information on government actions and responding to criticism of such actions. This does not prevent the Federal Government from clearly and unequivocally rejecting incorrect representations of fact or discriminatory value judgements. Beyond this, however, it must refrain from making distorting or disparaging statements which are not, in substance, relevant to the criticism of government actions.

The same applies to individual members of the Federal Government as regards their right to issue statements. Equal opportunities in the political competition are adversely affected where government members, when participating in the political debate, make use of the possibilities and means that are available to them because of their government office and that are not available to their political competitors. Whether a statement made by a member of the Federal Government can be regarded as having been made in exercise of their function as a minister must be determined with regard to the circumstances of each specific case. A statement must be considered as having been made in their capacity as a member of the government particularly where the holder of an office makes this statement in the form of an official publication, press release or on the website of their department, or where state symbols and national emblems are used.

II. According to these standards, the application is well-founded.

1. Taken by themselves, the challenged statements made by the respondent as part of the interview are not objectionable under constitutional law given that they form part of the respondent’s participation in the political debate.

a) The challenged statements contain negative assessments of the applicant. They contain biased and explicit criticism and negative judgments to the detriment of the applicant. The statements imply that, despite declarations to the contrary, the applicant is opposed to the state and has let its mask slip in this respect. At the same time, the statements assert that the applicant has undergone a process of radicalisation and the applicant’s conduct is labelled as “corrosive to the state”. It cannot be clearly inferred from the wording of the statements whether the latter allegation is directed against the political party as a whole or merely against the AfD parliamentary group in the context of the parliamentary group’s criticism of the Federal President’s conduct. By making his statements, the respondent exceeds the limits that are set by the duty of neutrality on the contents of such statements.

The respondent is of the opinion that the statements he made are not objectionable because they did not have any connection to a political campaign, simply called for respectful behaviour vis-à-vis the Federal President, and because he did not call on anybody to not cast their vote for the applicant. When pointing this out, he disregards that it is possible to influence the formation of the political will to the benefit or the detriment of specific political parties not only by calling on voters to cast or not to cast their vote for a specific party but also by evaluating the acts or aims of a specific political party in negative terms. On this basis, the Second Senate has already held expressly that the principle of equal opportunities of political parties requires adherence to the principle of neutrality not just during election campaigns given that the formation of the political will is an ongoing process that is not restricted to election campaigns.

b) Nonetheless, making the challenged statements as such when giving the interview does not violate the applicant’s right to equal opportunities laid down in Art. 21(1) GG since the respondent used neither the authority of his government office in a specific manner nor the resources available to him because of his office. Rather, the context of the interview leads to the conclusion that by making these statements the respondent participated in the political debate as a party politician and was not exercising his ministerial duties. This becomes particularly apparent as the respondent also faced questions relating to matters that are not part of his department.

2. However, the respondent violated the applicant’s right under Art. 21(1) first sentence GG by publishing the interview on the website of the Ministry headed by him.

a) Doing so, he used resources that are only available to him because of his government office. He used these resources to participate in the political debate given that publishing the interview on the website served to further disseminate the statements made in this interview. Since, by making these statements, the Minister sided against the applicant in a partial manner, publishing the interview on the Ministry’s website violates the principle of strict neutrality of the state and, therefore, it violates the applicant’s right to equal participation in the political competition.

b) The objections raised by the respondent do not lead to a different conclusion. The acts of the respondent cannot be justified by pointing out that merely publishing the interview on the Ministry’s website does not make it an official statement. When the interview was published on the website, the primary source was indeed indicated and it was pointed out that it had been published with express consent. However, the decisive point is that the respondent has used state resources that are not available to the applicant in order to change the competitive positions of political parties to the applicant’s detriment. In order to justify his statements, the respondent may also not rely on the Federal Government’s power to inform the public and to maintain public relations. In this respect, there is no need to determine whether this justification fails because the respondent acted outside the competence of his department when standing up for the Federal President. This is because the statements cannot be justified in any case given that the respondent did not adhere to the duty of objectivity that applies in the context of the Federal Government’s public relations activities.