Summary:

I.
By enacting § 9 of the Associations Act (hereinafter, the Act), the legislator aimed to effectively ban the signs of criminal biker gangs from public view. When an association or a substitute organisation is banned, any person may be barred from the use of the signs of that organisation in public, at meetings or in the media. The challenged provision extends this prohibition to signs that are used in essentially the same form by organisations that are formally not subject to the ban. Local “chapters” or “charters” or members of the motorcycle clubs Gremium Germany, Hells Angels and Bandidos MC filed constitutional complaints against the Act. While some subdivisions of these clubs are banned and some are not, all are subject to the ban on using the club-specific signs. The applicants claim a violation of their freedom of association, freedom of expression, and other fundamental rights.

II.

 Based on the considerations below, the Federal Constitutional Court held that the statutory ban of association-specific signs is in conformity with the Constitution.

The fundamental right of freedom of association laid down in Article 9.1 of the Basic Law protects the formation and the existence of associations in their chosen form. This protection applies to associations as well as to their members. It covers membership recruitment and self-representation as well as the right to a name. For the identity of motorcycle clubs, the public use of specific signs on their clothing is of fundamental importance. From their point of view, the “top rockers” and “central patches” of their umbrella organisation are an expression of cohesion and shared identity; they have been used almost unaltered for decades, according to strict internal rules, and allow for easy recognition.

Indeed, the ban of such signs seriously interferes with the rights of the respective association and its members. However, the interference is justified under constitutional law. The legislator pursues the legitimate aim of asserting the ban on associations under Article 9.2 of the Basic Law, which itself serves to avert dangers to high-ranking constitutional interests. Associations are thereby not only formally banned, but their activities and scope of action are also barred by the ban of their signs in public, which is challenged in this case. This ban is suitable for achieving its aims. In the absence of less intrusive but equally effective means, it is permissible for the legislator to consider the ban necessary.

Taking all interests into account, banning the signs is also reasonable (zumutbar), even though it amounts to a serious interference with fundamental rights, given the considerable importance that those affected attach to wearing the signs on their clothing in public. Also, defying the ban is subject to sanctions. As such, it considerably restricts the possibilities of self-portrayal as members of a certain association. However, the weight of the interference is mitigated by the possibility of private display (e.g. tattoos). This is not prohibited as long as the signs are covered in public or at gatherings and are not shown in the media. Furthermore, in cases of minor culpability, the sanctions can be waived. The second sentence of § 9.3 of the Act, which bans signs that are very similar to those of an association subject to a ban, aims to clarify that the ban also applies to signs that only differ from those of the association subject to a ban in that they refer to a different locale.

The legislator has considerable reason to ban the signs. In particular, this ban is inextricably linked to the ban of the association itself. As the Federal Constitutional Court clarified in its decision of 18 July 2018, the ban of an association, as an instrument of preventative protection of the Constitution, aims to protect legal interests of particular significance. With respect to fundamental rights, a ban is only justified where an association is characterised by its organised violation of criminal laws, its actively belligerent stance against the constitutional order, or by its promotion of violence in international relations or comparable acts contrary to international law and thus directed against the idea of international understanding, and where less intrusive means are not sufficient. Only then does the ban on using the association’s signs apply. Therefore, the ban of an association and the ban on continuing to use its signs in public are rooted in the same legal interests of protection.

International law, and in particular the European Convention on Human Rights, does not warrant a different conclusion. The interference with freedom of association guaranteed by Article 11.1 ECHR and with freedom of expression guaranteed by Article 10.1 ECHR serves the legitimate purpose of maintaining public safety. The ban of certain signs appears to be necessary in a democratic society. The ban of signs similar to those used by associations that are banned in conformity with strict requirements arising from constitutional law does not aim to counter opinions or ideologies, but rather serves to avert specific dangers, emanating from certain associations, to exceptionally significant legal interests.

Also, the fundamental right to freedom of expression does not lead to a different conclusion from the one drawn on the basis of Article 9.1 and 9.2 of the Basic Law, and the challenged provisions do not violate the freedom of property either.