The party Die Heimat (previously NPD) is excluded from state funding for six years

Press Release No. 9/2024 of 23 January 2024

Judgment of 23 January 2024 - 2 BvB 1/19

In a judgment pronounced today, the Second Senate of the Federal Constitutional Court ruled that the political party Die Heimat (previously: Nationaldemokratische Partei Deutschlands – NPD) is excluded from state funding provided pursuant to § 18 of the Political Parties Act (Parteiengesetz – PartG).

Art. 21(3) first sentence of the Basic Law (Grundgesetz – GG) provides that anti-constitutional parties be excluded from state funding. The exclusion concerns parties that, in view of their aims or the behaviour of their adherents, are oriented towards undermining or abolishing the free democratic basic order or endangering the existence of the Federal Republic of Germany. Based on this provision, the Bundestag, the Bundesrat and the Federal Government applied for the party Die Heimat to be excluded from state funding.

The prerequisites for an exclusion from state funding under Art. 21(3) first sentence of the Basic Law have been met: the party Die Heimat shows disdain for the free democratic basic order and, in view of its aims and the behaviour of its members and adherents, is oriented towards the abolition of said order. It aims to replace the existing constitutional system with an authoritarian state based on an ethnic ‘Volksgemeinschaft’ (‘people’s community’). Its political concept disrespects the human dignity of all those who are not part of the ethnic ‘Volksgemeinschaft’ and is also incompatible with the principle of democracy. Die Heimat is working towards abolishing the free democratic basic order, which is shown in particular by its organisational structure, its regular participation in elections and other activities and its links to national and international right-wing extremist groups.

The decision was unanimous.

Facts of the case:

The proceedings concern the application, lodged by the German Bundestag, the Bundesrat and the Federal Government (the applicants), to declare that the political party Die Heimat (the respondent) be excluded from state financing. Under Art. 21(3) first sentence of the Basic Law and § 46a(1) first sentence of the Federal Constitutional Court Act (Bundesverfassungsgerichtsgesetz – BVerfGG), parties that, by reason of their aims or the behaviour of their members and adherents, are oriented towards undermining or abolishing the free democratic basic order or endangering the existence of the Federal Republic of Germany, are to be excluded from state financing for six years.

In 2001 and 2013, applications for the prohibition of a political party were lodged against the respondent; ultimately, these applications were unsuccessful. In its most recent decision on the matter – the judgment of 17 January 2017 (BVerfGE 144, 20) –, the Second Senate confirmed that the respondent, in view of its aims and the behaviour of its adherents, is intending to abolish the free democratic basic order. However, the application underlying this judgment was unsuccessful as there were no specific and significant indications that the respondent could potentially succeed in achieving its aims (potentiality).

In the past, the respondent received not inconsiderable funds from the state financing of political parties. Yet following the 2021 Bundestag elections, the respondent lost its entitlement to state funding due to its poor election results.

Key considerations of the Senate:

A. There are no procedural obstacles to conducting proceedings to exclude the respondent from state funding.

In its judgment of 17 January 2017 (BVerfGE 144, 20), the Federal Constitutional Court specified the standards regarding irremediable procedural obstacles in proceedings for the prohibition of a political party. These standards must be applied accordingly in proceedings for exclusion from state funding.

Based on these standards, there are no irremediable procedural obstacles to conducting proceedings for the respondent’s exclusion from state funding. There is no violation of the strict requirement of freedom from state interference in the sense that no informants and undercover investigators were used to infiltrate the respondent’s leadership structures during the present proceedings for exclusion from state funding. Given the attestations provided, it can be presumed that the evidence submitted to the respondent’s detriment does not stem from information generated by informants. The attestations also sufficiently confirm that the requirements regarding a fair trial in accordance with the rule of law were satisfied, in particular as the respondent’s court strategy was not exposed.

B. The respondent’s failure to appear at the oral hearing held on 4 July 2023 likewise does not preclude the continuation of the proceedings. If parties to proceedings do not attend the oral hearing even though they would be able to do so, it does not violate their right to be heard and the right to a fair trial if the oral hearing is conducted nonetheless.

C. The application for exclusion from state financing is admissible and well-founded.

I. There are no serious constitutional concerns regarding the possibility of excluding anti-constitutional parties from state funding, as laid down in Art. 21(3) first sentence of the Basic Law.

1. Art. 79(3) of the Basic Law (so-called eternity clause) limits the powers of the Constitution-amending legislator. According to this provision, amendments to the Basic Law affecting the division of the Federation into Länder, their participation in the legislative process, or the principles laid down in Arts. 1 and 20 of the Basic Law are impermissible. Constitutional amendments that do not adhere to the limits set by Art. 79(3) of the Basic Law are ‘constitutional law that is incompatible with the Constitution’ and are void. The list of matters protected by Art. 79(3) of the Basic Law, which are beyond the reach of amendment, is exhaustive.

2. The matters protected by Art. 79(3) of the Basic Law are not affected by Art. 21(3) of the Basic Law.

a) The exclusion of anti-constitutional parties from state funding does not amount to an erosion of the principle of democracy affecting the eternity clause of Art. 79(3) of the Basic Law. Under the constitutional concept of ‘militant democracy’, political parties that seek to abolish the free democratic basic order can be prohibited pursuant to Art. 21(2) of the Basic Law, and thus be completely prevented from discharging a political party’s constitutional mandate to participate in the formation of the political will of the people as set out in Art. 21(1) first sentence of the Basic Law. The concept of ‘militant democracy’ also permits the disadvantaging of such parties by excluding them from state funding in contravention of the principle of equality.

This does not affect the substance of the principle of democracy protected by Art. 79(3) of the Basic Law. The principle of democracy encompasses the principle of equal opportunities of political parties only to the extent that the parties recognise and respect fundamental democratic principles. If parties fail to do so, the exclusion of a party from state funding based thereon does not encroach on the core of the principle of democracy protected by Art. 79(3) of the Basic Law.

The newly created Art. 21(3) first sentence of the Basic Law ties the exclusion from state funding to the condition that the party concerned intends to abolish the free basic order, which is integral to democratic competition, or that it endangers the existence of the state. Thus, it only concerns political parties whose participation in the formation of the political will in accordance with equal opportunities is not part of the concept of democracy under the Basic Law. Not providing state support to such parties therefore does not affect the substance of the principle of democracy under Art. 79(3) of the Basic Law.

b) There is also no violation of the individual’s right to protection and respect arising from human dignity pursuant to Art. 1(1) of the Basic Law, which is protected from constitutional amendment by Art. 79(3) of the Basic Law. The exclusion of anti-constitutional parties from state funding does not interfere with the right of citizens to democratic self-determination. This right guarantees citizens equal participation in the design of the free democratic order. If voters can no longer support a party that seeks to abolish the free democratic order because said party has been deprived of state funding, this does not mean that voters have been turned into mere objects of state action or are prevented from exercising their right to democratic self-determination.

II. The prerequisites for a party’s exclusion from state funding under Art. 21(3) of the Basic Law and the substantive prerequisites for the prohibition of a political party under Art. 21(2) of the Basic Law are largely congruent. Both the proceedings for the prohibition of a political party and the proceedings for exclusion from state funding require that the protected interest of the ‘free democratic basic order’ be affected, and that the political party in question seek to undermine or abolish it (Art. 21(2) of the Basic Law) or be oriented towards (Art. 21(3) first sentence of the Basic Law) its undermining or abolition ‘by reason of its aims or the behaviour of its adherents’. The prerequisites for meeting the element of ‘seeking’ are not the same as for the element of ‘being oriented towards’. The element of ‘being oriented towards’ requires significant and planned action of a party to undermine or abolish the free democratic basic order; it is irrelevant in this respect whether the party could potentially succeed (potentiality).

III. Based on these standards, the application for the respondent’s exclusion from state funding is well-founded. In its judgment of 17 January 2017, the Federal Constitutional Court found that at the time of the decision, the respondent was pursuing anti-constitutional aims within the meaning of Art. 21(3) of the Basic Law. This finding remains valid. The respondent continues to show disdain for the free democratic basic order and is oriented towards abolishing it in view of its aims and the behaviour of its members and adherents.

1. The respondent continues to oppose the fundamental principles that are integral to a free and democratic constitutional state.

a) Both the continued commitment to essential parts of its party manifesto from 2010 and various statements made by the respondent’s leaders following the Federal Constitutional Court’s judgment of 17 January 2017 show that the respondent has not distanced itself from the aims it pursued in the past, but continues to pursue these aims. No relevant changes to the respondent’s political programme are ascertainable.

b) The respondent’s political programme continues to be incompatible with the guarantee of human dignity within the meaning of Art. 1(1) of the Basic Law. As the Federal Constitutional Court already found in its judgment of 17 January 2017, this can be concluded from the party manifesto alone, which is entitled ‘Work. Family. Fatherland.’

The evidence submitted by the applicants in the present proceedings shows that the respondent continues to advocate a political concept that is in line with its party manifesto and thus aims to disrespect human dignity. The respondent continues to adhere to an ethnic conception of the people and the idea of the German ‘Volksgemeinschaft’ as a community of common descent. On this basis, it negates the requirement of fundamental equality before the law and calls for the separation of different cultures and ethnic groups. The party disdains specific social groups and minorities. It also accords precedence to the ‘Volksgemeinschaft’ over the individual. Building on the exclusionary nature of the ‘German Volksgemeinschaft’, the respondent calls for comprehensive preferential treatment of all members of this community and for the degradation of the legal status of those who are not part of this community.

The concept of an ethnically defined ‘Volksgemeinschaft’ entails disdain for foreigners, migrants and minorities in violation of human dignity. It can be ascertained from the evidence submitted in the present proceedings that the respondent continues to harbour a racist attitude – in particular marked by Islamophobia, antisemitism and antiziganism – and continues to reject social minorities such as transsexual persons.

c) The respondent also continues to show disdain for the principle of democracy. In its party manifesto, it calls for ‘unity of the people and the state’. The respondent posits that ‘popular rule requires a Volksgemeinschaft’, which shows that the respondent does not recognise the right to equal participation in the formation of the political will as a core element of the Basic Law’s principle of democracy. Logic dictates that this attitude excludes all those from the democratic process who are not part of the ethnically defined ‘Volksgemeinschaft’. A nation-state characterised by ‘unity of the people and the state’ as defined by the respondent leaves no scope for free and equal participation of those who are not ethnic Germans – regardless of their actual nationality – in the formation of the political will.

The new evidence submitted shows that the respondent continues to believe that democratic participation rights should be restricted to the members of the ‘Volksgemeinschaft’ regardless of nationality. Moreover, the respondent disparages the existing parliamentary system and calls for it to be overthrown.

d) Based on the findings of the judgment of 17 January 2017, the evidence submitted by the applicants in the present proceedings also shows the respondent’s continued similarity in nature to National Socialism. Its concept of ‘Volksgemeinschaft’, its anti-Semitic attitude and its disparagement of the existing democratic order all show clear parallels to National Socialism.

2. The respondent persists in its aim to replace the existing constitutional order with an authoritarian ‘nation-state’ based on the ethnic ‘Volksgemeinschaft’, in violation of human dignity and the Basic Law’s principle of democracy. It thus intends, in terms of its aims and the behaviour of its members and adherents, to abolish the free democratic basic order.

3. The respondent is also oriented towards abolishing the free democratic basic order. This requires that the party goes beyond merely professing its anti-constitutional aims and crosses the threshold towards actually combating the free democratic basic order. It is directly working towards abolishing the free democratic basic order, which is shown by its organisational structure, its regular participation in elections and other activities, and its links to national and international right-wing extremists. In these respects, the respondent tries to adapt to changing conditions.

a) Until 2020, the respondent received funds from the state financing of political parties. Parties are only entitled to receive such funds if they obtained at least 0.5% of the vote in the last European or Bundestag elections or at least 1% of the vote in Landtag (state parliament) elections. A party cannot achieve such election results without adequate organisational structures, a political concept, a sufficient level of public relations work and serious efforts to realise its political aims.

b) The respondent operates across Germany. It has regional chapters, its own youth organisation (Junge Nationalisten), a municipal policy group and a women’s group (Ring Nationaler Frauen). According to its financial report for 2020, the party had 3,199 members as of 31 December 2020.

c) The respondent continues to organise regular party events like party conventions, meetings, conferences and training events. It has print and digital publications which are intended to present the party to the general public. It is in particular its use of social media and its recruitment of members and supporters on social media platforms that document the respondent’s ‘being oriented towards’ undermining or abolishing the free democratic order within the meaning of Art. 21(3) first sentence of the Basic Law.

d) In the past, the respondent regularly took part in different elections, with its success deteriorating over time. In the 2019 European elections, the party obtained 0.3% of all valid votes cast; in the 2017 Bundestag elections, it received 0.4% of all valid second votes cast, while it received 0.1% in the 2021 Bundestag elections. The respondent also took part in Landtag elections – albeit not consistently. Currently, the respondent is not represented in any Parliament at federal or Land level.

e) It also has an integrated political concept regarding the realisation of its political aims. As set out in the judgment of 17 January 2017, the respondent’s political work was based on a so-called ‘four-pillar strategy’. The then chairman of the party divided this strategic concept into a ‘battle for hearts and minds’, a ‘battle for the streets’, a ‘battle for the Parliaments’ and a ‘battle for an organised political will’.

On the face of it, the respondent has distanced itself from this four-pillar strategy, but this strategy does still provide the key framework for its political activities. Its considerable loss of relevance, driven by declining membership, poor election results and lack of representation in Parliament, has forced the respondent to adapt its concepts. Strategic realignment and organisational streamlining are meant to turn the former ‘election party’ into a ‘patriotic NGO’ with the simultaneous development of pre-political structures; yet this does not mean that the four-pillar strategy has been declared obsolete. Renaming the party ‘Die Heimat’ is an attempt to overcome existing stigma, but does not involve a substantive repositioning.

f) The respondent has in various ways tried to implement its strategic concept and thereby realise its anti-constitutional aims.

As part of its ‘battle for hearts and minds’, it has organised events that are deliberately targeted not just at party supporters, but are meant to appeal to the wider public. In addition to the party’s two central campaigns, ‘Protection zones’ and ‘Germans help Germans’, the applicants listed a number of festivities, celebrations, walks, donor and charity events, open days and information booths organised by the respondent since the autumn of 2017.

The respondent has engaged in a ‘battle for the streets’ by striving to maintain a high presence at demonstrations and protests, a considerable proportion of which it has organised itself.

The respondent has organised many events to set out its political positions and demands, including after 2017. It has used both traditional and novel formats to do so. Moreover, it has tried to reach more people by organising joint events with other right-wing extremist parties and groups and by participating in events organised by others.

As part of its ‘battle for an organised political will’, the respondent has sought close national and international alignment with other right-wing extremist parties and groups. It has maintained close contacts to such parties and other right-wing extremist groups and declared solidarity with Holocaust deniers.

D. All in all, the respondent is trying to achieve its anti-constitutional aims with a wide range of activities, in spite of developments marked by declining membership, deteriorating election results and the lack of state financing resulting therefrom, as well as by strategic realignment. The respondent has thereby crossed the threshold from merely professing its rejection of the free democratic basic order towards actually combatting this order and is oriented towards its abolition. The respondent shall therefore be excluded from state financing for six years.