Pursuant to Article 21 (2) of the Basic Law, 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 endanger the existence of the Federal Republic of Germany are unconstitutional and may be banned by the Federal Constitutional Court.

Conditions for banning a political party

A party may be banned only if it not only takes an anti-constitutional attitude but aims to act on that attitude in a militant and aggressive way. For a political party to be banned, it is therefore not sufficient that they challenge, refuse to recognise or reject the supreme values of our constitution or try to replace them with other values. Instead, the political party concerned must be out to deliberately undermine the functioning of Germany’s free democratic basic order. This presupposes that there must be specific and valid evidence suggesting that there is at least a possibility of the party’s activities being successful.

Unlike an association, a political party cannot be banned by way of a banning order imposed by the Federal Minister of the Interior or the competent interior minister of a federal state; instead, a political party can only be banned by a decision of the Federal Constitutional Court (Article 21 (2) sentence 2 of the Basic Law). This special formal requirement that needs to be met for a political party to be banned (“party privilege”) protects the open competition between political parties and programmes. It would be irreconcilable with our concept of democracy if, for example, the majority parties were able to ban other political parties in order to get rid of unwanted political competitors.

The Bundestag, the Bundesrat and the Federal Government are the only constitutional bodies authorised to apply for a party ban. Only in cases where a party’s organisation is limited to the territory of a single federal state is the government of that state also entitled to apply for a party ban (section 43 of the Act on the Federal Constitutional Court, Bundesverfassungsgerichtsgesetz). It is up to these bodies to decide whether to apply for a ban.

Past proceedings to ban political parties

In the history of the Federal Republic, the Federal Constitutional Court imposed a ban on two political parties: on the Socialist Reich Party (Sozialistische Reichspartei, SRP), a Nazi successor organisation, in 1952 and on the Stalinist Communist Party of Germany (Kommunistische Partei Deutschlands, KPD) in 1956.

Proceedings to ban the National-Democratic Party of Germany (Nationaldemokratische Partei Deutschlands, NPD), which were initiated by the Bundestag and the Bundesrat, were terminated by the Federal Constitutional Court's decision of 18 March 2003 due to procedural impediments. The merits of the case were not examined.

The proceedings were terminated mainly because surveillance of the party continued even while the proceedings to ban the party were ongoing, with confidential informants being placed even in the executive bodies of the party. The Federal Constitutional Court considered that in these circumstances it was not possible to conduct proceedings in accordance with the rule of law.

In a second application to have the NPD banned, which was filed by the Bundesrat, the Federal Constitutional Court ruled on 17 January 2017 that, while the NPD advocated anti-constitutional objectives aiming to eliminate the existing free democratic basic order, there was not sufficient concrete evidence to suggest that the NPD’s activities could be successful.  For this reason, the application was turned down.