Order of 14 October 2026
2 BvE 5/26
Instagram post by Federal Minister - Preliminary injunction
In an order published today, the Second Senate of the Federal Constitutional Court issued a preliminary injunction directing the respondent, the Federal Minister for Economic Affairs and Energy, to delete a video published on 24 September 2026 (hereinafter: the ‘Reel’) on the Instagram profile of the Federal Ministry for Economic Affairs and Energy (hereinafter: the ‘Ministry’), which is led by the respondent, until a decision in the main proceedings is rendered or for a maximum period of six months.
In the Reel, the Federal Minister makes the following statements:
‘And that there is now a political party here in Berlin that is unashamedly ready to not only speak of expropriation, but to write it into their programme, which is openly antisemitic and which is frightening the Jewish residents of this city, which is fighting against Jewish life, which happily welcomes organised crime at election parties, is not only dangerous for the capital city but also for Germany as a centre of investment, because we need capital and must not scare it off because we need international investors and must not scare them off. And because we must not rattle the foundations of our social market economy, namely the protection of private property.’
The political party DIE LINKE contends that the publication of this Reel constitutes a violation of the right to equal opportunities of political parties arising from Art. 21(1) of the Basic Law (Grundgesetz – GG) and has lodged a complaint in Organstreit proceedings against the Federal Minister. The simultaneously lodged application for a preliminary injunction aimed at requiring the respondent to provisionally remove the Reel from the Instagram account of the Ministry is successful.
In the weighing of consequences that is to be undertaken in preliminary injunction proceedings, the reasons in favour of issuing the injunction prevail.
If the preliminary injunction were not issued and the Reel were to remain on the Instagram profile of the Ministry led by the respondent, and the complaint in Organstreit proceedings was subsequently successful, the applicant would run the risk of a severe and irreparable disadvantage to its right to equal participation in political competition arising from Art. 21(1) first sentence of the Basic Law due to the continued dissemination of the – profoundly – negative imputations expressed in the Reel. This is particularly true in light of the ongoing discussions on the formation of the government in the Land Berlin with the possible participation of the applicant’s regional association in Berlin.
Conversely, if the preliminary injunction were to be issued and the Organstreit proceedings were ultimately proved to be unfounded, the respondent would not be precluded from repeating the statements at issue following conclusion of the main proceedings.
In addition, the respondent would not be precluded from making statements during the course of the ongoing proceedings and regardless of the outcome of the main proceedings as a party politician or as a private person within the limits of the right to freedom of expression. Nor would she be prohibited from addressing in her capacity as a minister - while adhering to the constitutional requirements and refraining from the imputations and opinions expressed in the Reel regarding the applicant - relevant matters relating to current or emerging dangers for Germany as a centre for industry and investment which in her view relate to the topics mentioned in the Reel – the socialisation of land and property (‘expropriation’) or how to deal with antisemitism and organised crime.
Without expressing any assessment as to the question of the constitutionality of the statements at issue, which remain the subject of the main proceedings, the fact that it is possible and reasonable for the respondent to pursue her communicative aims in the manner so described until the conclusion of the main proceedings weighs heavily in favour of the applicant in the context of the required weighing of consequences and thus also for the issuance of the preliminary injunction.
The decision was taken with 6:2 votes.