Headnotes

to the Judgment of the Second Senate of 15 June 2022

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1. In principle, the standards that delineate acting in an official capacity from participating in political competition in a manner unrelated to the government office apply to the Federal Chancellor in the same way as they apply to other members of the Federal Government.

2. Given the order of competences within the Federal Government, it follows that the Federal Chancellor’s right to issue political statements is broader in scope compared to the other cabinet members. This, however, does not result in different requirements in terms of compliance with the principle of neutrality and objectivity.

3. Any unequal treatment or interference by the Federal Government with the principle of equal opportunities of political parties must be justified by constitutionally recognised, legitimate reasons that are of equal weight to the principle of equal opportunities of political parties.

4. Constitutional interests of equal weight to the principle of equal opportunities of political parties may include protecting the Federal Government’s stability and capacity to act as well as safeguarding the trust in the Federal Republic of Germany’s reliability and its standing in the international community.

5. The Federal Chancellor has a broad margin of appreciation when deciding on the measures necessary to ensure the Federal Government’s stability and capacity to act and when dealing with matters of foreign policy. When there is an interference with the principle of equal opportunities of political parties, there is an obligation to plausibly set out or otherwise ensure that it is ascertainable that constitutional interests justifying such an interference are actually affected and that such interests necessitated an interference with the right to equal opportunities of political parties derived from Art. 21(1) first sentence of the Basic Law.

FEDERAL CONSTITUTIONAL COURT

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IN THE NAME OF THE PEOPLE

In the proceedings
on
the applications to declare

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the Federal Constitutional Court – Second Senate –

with the participation of Justices

Vice-President König,

Huber,

Hermanns,

Müller,

Kessal-Wulf,

Maidowski,

Langenfeld,

Wallrabenstein

held on the basis of the oral hearing of 21 July 2021:

Judgment:

1. The proceedings are combined for joint decision.

2. Respondent no. I violated the applicant’s right to equal opportunities of political parties derived from Art. 21(1) first sentence of the Basic Law by making the following statement at a press conference with the South African President in Pretoria on 6 February 2020: “The election of this Minister-President was an unprecedented event that contravened a fundamental belief held by both the CDU and myself – the firm belief that majorities are not to be obtained with the AfD’s assistance. Given that the events were foreseeable once the election went to a third round of voting, what happened is unforgiveable and the result must therefore be undone. The CDU, at least, must not play any part in a government led by the elected Minister-President. It was a bad day for democracy.”

3. Respondents no. I and II violated the applicant’s right to equal opportunities of political parties derived from Art. 21(1) first sentence of the Basic Law by publishing the statement quoted under 2. above under the heading “Press conference by Federal Chancellor Merkel and the President of South Africa, Cyril Ramaphosa” on the websites of the Federal Chancellor and the Federal Government on 6 February 2020.

1. 4 […]

R e a s o n s:

The Organstreit proceedings combined for joint decision concern a statement made by the Federal Chancellor on 6 February 2020 and the subsequent publication of the statement on the websites of the Federal Chancellor and the Federal Government (the respondents). The applicant, the political party Alternative für Deutschland (AfD), asserts that both the statement and its subsequent publication violated the AfD’s right to equal opportunities in the competition of political parties derived from Art. 21(1) first sentence of the Basic Law (Grundgesetz ‒ GG).

A.

I.

1. On 5 February 2020, an election was held in the Thuringian Landtag (state parliament) to select the Minister-President of the Free State of Thuringia. In the first two rounds of voting, there were two candidates: Bodo Ramelow, the candidate jointly put forward by the parliamentary groups of the Sozialdemokratische Partei Deutschlands (SPD), DIE LINKE and BÜNDNIS 90/DIE GRÜNEN ([...]) and Christoph Kindervater, the candidate proposed by the parliamentary group of the AfD ([...]). Neither candidate obtained the [...] required absolute majority in these first two rounds. For the third round of voting ([...]), in which the candidate who obtains a simple majority of votes wins the election ([...]), the parliamentary group of the Freie Demokratische Partei (FDP) nominated Thomas Kemmerich as an additional candidate ([...]). Thomas Kemmerich was elected with 45 out of 90 votes. Bodo Ramelow received 44 votes, Christoph Kindervater received none; there was one abstention ([…]).

The election of the Minister-President drew sharp public criticism, as it was presumed that members of the AfD parliamentary group had helped Kemmerich win the election ([...]). Criticism also came from Annegret Kramp-Karrenbauer, the then-federal chairperson of the Christlich-Demokratische Union (CDU). On the day of the election, Kramp-Karrenbauer issued a statement saying that the fact that members of the CDU parliamentary group had assisted Kemmerich in being elected contravened a firm decision by the national body of the CDU not to cooperate with the AfD and that it was therefore necessary for Kemmerich to step down as Minister-President ([...]).

2. The Federal Chancellor, who at the time was a member of the CDU Presidium by virtue of her office ([...]), was on an official visit to South Africa and Angola. On 6 February 2020, she held a press conference in Pretoria together with the South African President, Cyril Ramaphosa. During the press conference, the Federal Chancellor spoke in front of the flags of the Federal Republic of Germany and the Republic of South Africa while standing at a lectern displaying the official coat of arms of the Republic of South Africa. After the South African President had welcomed Angela Merkel to South Africa in her capacity as Federal Chancellor [...], she made the following statement:

“Ladies and Gentlemen, I have already told the President that, for reasons of domestic policy, I would like to start by making some preliminary remarks concerning yesterday’s election of a new Minister-President in Thuringia. The election of this Minister-President was an unprecedented event that contravened a fundamental belief held by both the CDU and myself – the firm belief that majorities are not to be obtained with the AfD’s assistance. Given that the events were foreseeable once the election went to a third round of voting, what happened is unforgiveable and the result must therefore be undone. The CDU, at least, must not play any part in a government led by the elected Minister-President.

It was a bad day for democracy. It was a day that contravened the values and convictions held by the CDU. Now all possible steps have to be taken to make clear that these events are by no means reconcilable with the CDU’s actions and beliefs. This is a task to be tackled over the coming days.

Now I will turn to the country of South Africa, which I am visiting with great delight and for the third time as Federal Chancellor. I was here in 2007 and 2010. It has taken me ten years now to come back. Almost 30 years to the day, on 11 February 1990, Nelson Mandela was released from prison. This was a time that brought great change to South Africa. [...]”.

In the following Q and A with reporters, the Federal Chancellor was also asked about the Minister-President election in Thuringia. When asked whether the event could lead to a collapse of the grand coalition in Berlin und whether she had spoken about this matter on the phone with the Deputy Chancellor or the chairperson of the SPD, the Federal Chancellor replied that she had liaised with both of them and that they had agreed to convene the coalition committee. [...]

3. A transcript of the press conference, including the statement at issue, was published under the heading “Press conference by Federal Chancellor Merkel and the President of South Africa, Cyril Ramaphosa” on the websites of the Federal Chancellor and the Federal Government with a note reading, “transcript press conference” and “verbatim”. [...] These websites include the official coat of arms of the Federal Chancellor and the Federal Government, respectively. The coat of arms depicts the federal eagle with the lettering “The Federal Chancellor” and “The Federal Government”, respectively. [...]

II.

In a letter to the Federal Chancellor dated 18 February 2020, the AfD asserted that the statement that majorities are never to be obtained with the AfD’s assistance, what happened was unforgivable and the result of the election had to be made undone violated the AfD’s rights derived from Art. 3(1) in conjunction with Art. 21(1) first sentence GG and Art. 2(1), Art. 1(1) in conjunction with Art. 19(3) GG. The AfD asserted the same violations vis-à-vis the Federal Government in relation to the statement’s publication on the Federal Government’s website.

III.

[...]

IV.

[...]

B.

The applications are admissible.

[...]

C.

The applications are well-founded. Both the statement itself as well as its publication on the respondents’ websites violate the applicant’s right to equal opportunities in political competition derived from Art. 21(1) first sentence GG.

I.

The constitutional status of political parties protected by Art. 21(1) first sentence GG (see 1. below) guarantees the right to equal participation in political competition (see 2. below). Generally, this right is irreconcilable with any interference by state organs in favour or at the expense of individual parties participating in political competition (see 3. below). The same applies to any interference by an individual member of the Federal Government to the extent that, in the exercise of their official duties, they influence the process through which the political will of the people is formed (see 4. below). Whether a statement by a member of the Federal Government was made in an official capacity is to be determined by considering the circumstances of the individual case (see 5. below). Generally, these standards also apply to the Federal Chancellor (see 6. below). Interferences with the principle of equal opportunities of political parties can be justified to protect constitutional interests of equal weight (see 7. below).

1. a) In the free democracy under the Basic Law, all state authority is derived from the people and it is exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies (Art. 20(2) GG). Elections and other votes provide democratic legitimation within the meaning of Art. 20(2) GG only when they are free. This requires that the act of voting be free of coercion and undue pressure; it also requires that voters can reach and pass their judgment in a free and open opinion-forming process (cf. BVerfGE 148, 11 <23 para. 40>; 154, 320 <334 para. 44>; established case-law).

b) Political parties perform a vital role in this process in the parliamentary democracy under the Basic Law. Art. 21 GG expresses this by recognising parties as institutions that are necessary under constitutional law for the formation of the political will of the people, and by elevating them to the rank of constitutional institutions. Political parties are freely formed associations rooted in political and societal life. While political parties do not belong to state institutions themselves, they have a strong impact on them. Political parties perform a role as mediators between state and society. They are bodies of political action that democracy needs to organise voters into groups capable of acting politically and thereby enable them to effectively influence the actions of state organs (cf. for an overview BVerfGE 148, 11 <24 para. 41>; 154, 320 <334 para. 45>; each with further references).

2. In order to ensure the open formation of the political will, as is required under constitutional law, it is indispensable that political parties enjoy, insofar as is possible, equal participation in political competition. The right of political parties to equal opportunities is closely linked to the principles of universal and equal suffrage in accordance with Art. 38(1) first sentence GG. This understanding endows the constitutional principle of equal opportunities for political parties with its unique character. Given the formal nature of the right to equality as it concerns the formation of the people’s political will, the constitutional principle of equal opportunities for political parties must also be formally understood in the same terms. Art. 21(1) GG not only guarantees 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 (cf. for an overview BVerfGE 148, 11 <24 para. 42>; 154, 320 <334 f. para. 46>; each with further references). Therefore, any interference with the principle of equal participation of political parties in the formation of the political will requires a justification under constitutional law.

3. a) Equal opportunities to participate in the formation of the political will of the people require that state organs be neutral in the political competition of parties. Accordingly, where state organs influence election campaigns to the benefit or detriment of a political party or of electoral candidates, this typically violates the right to equal participation in the process of the formation of the political will and of public opinion (cf. BVerfGE 148, 11 <25 para. 44 f.>; 154, 320 <335 f. para. 47>; each with further references). It is true that the people’s will and the will of state organs are formed through processes that interact in a variety of ways and on an ongoing basis. While the acts of state organs inevitably have an effect on the way in which voters form their will and opinions, state organs are precluded from using their official authority to exert further influence on the formation of the people’s will by special measures during an election in order to thereby retain or change their power. State organs must serve everyone and be neutral. Taking sides 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 other votes (cf. for an overview BVerfGE 154, 320 <335 f. para. 47> with further references).

b) The principle of equal opportunities of political parties requires that the principle of state neutrality also be observed outside of election campaigns, given that political will is formed through a continuous process that is not restricted to election campaigns. While political competition between parties intensifies during election campaigns, it also exists outside of electoral campaigns and affects voters’ electoral decisions (cf. BVerfGE 148, 11 <25 f. para. 46>; 154, 320 <336 para. 48>; each with further references). So far, the Senate has left open the question of whether the principle of neutrality leads to stricter requirements for the acts of state organs during election campaigns (cf. BVerfGE 148, 11 <26 para. 46> with further references; 154, 320 <336 para. 48>). In any case, the principle of state neutrality not only applies to the election process and the preparation of elections, but also to all activities of parties that are aimed at fulfilling their constitutional mandate under Art. 21(1) first sentence GG. In that sense, Art. 21(1) first sentence GG protects the parties’ right to equal opportunities in political competition as a whole (cf. BVerfGE 148, 11 <26 para. 46>; 154, 320 <336 para. 48>; each with further references).

4. a) The rules applicable to the Federal Government in its entirety regarding the right to issue political statements also apply to its individual members. When performing their ministerial duties, government members are bound by the constitutionally guaranteed principle of equal opportunities of political parties in the same way as the Federal Government pursuant to Art. 20(3) GG (cf. BVerfGE 138, 102 <116 f. para. 49>; 148, 11 <31 para. 61>; 154, 320 <338 para. 53>).

b) This does not prevent government members from participating in the contest of political ideas outside their official functions. The mere assumption of office does not preclude government members from engaging in party politics. Otherwise, the political parties supporting the government would be at an unjustified disadvantage. It must, however, be ensured that members of the government do not thereby make use of the means and opportunities available through their government office that are unavailable to their political competitors (cf. BVerfGE 138, 102 <117 f. paras. 50 ff.>; 148, 11 <31 f. para. 62>; 154, 320 <338 f. para. 54>; each with further references).

c) The fact that holders of government office are usually perceived in their dual role as both members of government and party politicians does not conflict with the principle of neutrality. It is true that, given the overlap of public office and party affiliation, citizens only expect limited neutrality from government members. Irrespective of such considerations, however, there is a constitutional requirement to safeguard the formation of the political will as a bottom-up process (i.e. from the people to the state organs) to the greatest extent possible by means of equal opportunities for political parties to participate in political competition. The fact that it is not always possible to neatly distinguish between the spheres of a “Federal Minister”, a “party politician”, or a “private individual” acting in a political manner does not mean that the principle of neutrality is inapplicable when government members perform their official duties (cf. BVerfGE 148, 11 <32 para. 63>; 154, 320 <339 para. 55>; each with further references).

d) Therefore, equal opportunities in political competition are adversely affected when government members, while taking part in political debate, make use of possibilities and means that are available to them by virtue of their government office that are not available to their political competitors. Accordingly, a statement in which a federal minister sides with a political party violates the principle of equal opportunities of political parties and the integrity of the formation of the political will as a bottom-up process (i.e. from the people to the state organs), when such statement is either made using resources connected with the ministerial office or if it recognisably refers to the government office to lend it special credibility or weight derived from the authority of office (cf. BVerfGE 138, 102 <118 para. 55>; 148, 11 <33 para. 64>; 154, 320 <339 f. para. 56>).

e) In this respect, it cannot be argued that applying the principle of neutrality to statements made in an official government capacity makes it more difficult for members of the Federal Government to exercise their responsibilities towards Parliament and leads to a depoliticisation of government actions. Such argument fails to recognise that the principle of neutrality does not prevent the Federal Government or its members from supporting the political positions of the government or its constituent ministries, providing information on political projects and measures and, subject to the principle of objectivity, refuting attacks and criticism. Thus, neither the exercise of responsibilities towards Parliament nor the ability to engage in political factual debates are called into question by the application of the principle of neutrality. Rather, it merely prevents members of the Federal Government from taking a one-sided stand in the performance of government duties or from using the specific means and opportunities of ministerial office when participating in general political competition (cf. BVerfGE 148, 11 <33 f. para. 65> with further references; 154, 320 <340 para. 57>) and thereby creating an advantage for themselves or their political parties that is not available to their political competitors.

5. Whether a statement by a member of the Federal Government was made in a way that invoked the authority of government office or made using the financial resources connected to the office, is to be determined on the basis of the circumstances of the individual case (cf. BVerfGE 138, 102 <118 para. 56>; 148, 11 <33 para. 66>; 154, 320 <340 para. 58>; each with further references). The assessment is to be conducted from the perspective of a mature and understanding citizen ([...]).

a) An invocation of the authority of government office is generally present whenever a Federal Minister explicitly refers to their ministerial office or when they make a statement that exclusively concerns measures or projects of their respective Ministry. Official authority is also invoked when an office holder issues an official statement, e.g. on their department’s website or through an official publication or press release (cf. BVerfGE 138, 102 <118 f. para. 57>; 148, 11 <34 f. para. 66>; 154, 320 <340 f. para. 59>; each with further references). The same can apply with respect to official social media accounts of government members ([...]). Other circumstances, such as the use of state symbols and national emblems or the use of official facilities, can also constitute a specific reference to the office. This also applies to the use of other material and financial resources in connection with the statement when such resources are only available to government members by virtue of their office. Lastly, official authority is exercised when a Federal Minister makes a statement at an event for which the Federal Government has partial or sole responsibility, or when the Federal Minister is participating in the event solely because of their government office (cf. BVerfGE 138, 102 <119 para. 57>; 148, 11 <34 f. para. 66>; 154, 320 <341 para. 59>).

b) By contrast, mere participation in political competition is to be assumed when a member of government acts in the context of party politics. Statements made at party conventions or comparable political party events typically do not influence the formation of the people’s political will in a way that affects the right of political parties to equal participation in political competition, given that the actors in this context are primarily perceived as party politicians (cf. BVerfGE 138, 102 <119 para. 58>; 154, 320 <341 para. 60>).

c) Events that contribute to the general political discourse such as talk shows, discussion forums and interviews, as well as the use of social media accounts other than official government accounts ([...]) require a more nuanced approach. In these situations, holders of government office can be perceived as both party politicians and private individuals. The use of an official title alone is not sufficient to indicate that a person is acting in an official capacity, given that state functionaries may also be referred to by their title outside of official activities (cf. BVerfGE 138, 102 <119 f. para. 59>; 154, 320 <341 f. para. 61>; each with further references). The decisive factor for purposes of the principle of neutrality is whether the government office holder underscores the authority of their office in a specific way when making a statement (cf. BVerfGE 138, 102 <120 paras. 59 ff.>; 154, 320 <342 para. 62>). In any case, they may then clarify that, with their statements, they are contributing to the contest of political ideas in a way that lies outside of their ministerial role (cf. BVerfGE 148, 11 <35 para. 66>).

6. In principle, these standards, which delineate acting in an official capacity from participating in political competition in a manner unrelated to the office, also apply to the Federal Chancellor.

a) The principle of state neutrality applies, in principle, to all state organs in equal measure; they therefore may not interfere with the process of the formation of public opinion and the political will in a way that favours or disadvantages a political party (cf. BVerfGE 148, 11 <25 para. 45>; 154, 320 <335 para. 47>; each with further references). The principle of state neutrality imposes an obligation on the Federal Government as a collegial body, given that it can exert substantial influence on the formation of the political will and distort political competition (cf. BVerfGE 138, 102 <115 para. 45>; 148, 11 <28 para. 52>; 154, 320 <337 para. 50>). The same applies to the individual members of government, i.e. Federal Ministers, as well as the Federal Chancellor ([...]). Pursuant to Art. 62 GG, the latter forms the Federal Government together with the Federal Ministers. In light of the Federal Chancellor’s prominent position in government, which is reflected in the Federal Chancellor’s election by the German Bundestag pursuant to Art. 63 GG, as well as in Arts. 64, 65, 67 and 68 GG ([...]), the Federal Chancellor can be more easily equated with the Federal Government than an individual Federal Minister.

b) By contrast, the standards that apply with respect to statements by the Federal President (cf. BVerfGE 136, 323) cannot be applied to the Federal Chancellor. Unlike the Federal President, members of the Federal Government, including the Federal Chancellor, compete with the political parties in gaining political influence (cf. BVerfGE 138, 102 <112 para. 37>). Given that the Constitution provides for close interaction between the Federal Government, the parliamentary majority and political parties forming that majority ([...]), it is at least plausible to assume that government members would be inclined to support those political parties that back the government. The same applies for the Federal Chancellor (cf. BVerfGE 138, 102 <111 f. para. 35>).

Insofar as the Senate recognises a wide margin of appreciation for the Federal President, reviewable only as to the compliance with its absolute outer limits, on the basis that the President, first and foremost, exercises functions of representation and integration (cf. BVerfGE 136, 323 <332 para. 25, 335 f. para. 31 ff.>), the same cannot be applied to the Federal Chancellor. It is not the primary role of the Federal Chancellor to use the public office in a way that embodies social unity and to promote this unity by means of the authority of office. Art. 64(1) GG provides that Federal Ministers are appointed and dismissed by the Federal President upon the proposal of the Federal Chancellor. Pursuant to Art. 65 first sentence GG, the Federal Chancellor determines and is responsible for the general guidelines of policy and conducts the proceedings of the Federal Government in accordance with Art. 65 fourth sentence GG. These constitutional provisions reflect the special role of political leadership that the Federal Chancellor is afforded within the Federal Government ([...]). The Federal Chancellor typically plays a decisive role in the government’s function of managing state affairs, which gives rise to an authority and advantages in terms of resources that correspondingly lead to the Federal Chancellor being bound by the principle of equal opportunities and the resulting obligations of neutrality (cf. BVerfGE 138, 102 <115 para. 45>; 148, 11 <28 para. 52>; 154, 320 <337 para. 50>).

c) The Federal Chancellor’s prominent position within the Federal Government does not mean that more deferential (see (aa) below) or stricter (see (bb) below) standards apply to the Federal Chancellor’s acts in terms of compliance with the principle of neutrality as compared to other members of the Federal Government.

aa) In light of the Federal Chancellor’s special status within the Federal Government and, in particular, the Chancellor’s competence under Art. 65 first sentence GG to determine the general guidelines of policy, the Chancellor is afforded the right to issue political statements that is broader in scope as compared to Federal Ministers, who are primarily limited to their respective ministry’s area of competence (cf. Art. 65 second sentence GG [...]). It is therefore plausible to extend the Federal Chancellor’s right to issue political statements to all governing activities with which the Federal Government as a collegial organ is tasked, thus reflecting an all-around political competence ([...]).

This does not mean, however, that the Federal Chancellor’s right to issue political statements is subject to more generous limits with regard to the principles of neutrality and objectivity than those applicable to Federal Ministers ([...]). This would run contrary to the meaning and purpose of the right of political parties to equal opportunities and the principle of state neutrality, which is rooted in the principle of a free formation of the political will. Even though the Federal Chancellor may issue statements concerning political questions in all areas on behalf of the Federal Government, this does not exempt the Federal Chancellor from the obligation to respect the right of political parties to equal opportunities in political competition and, therewith, the principle of neutrality.

bb) Conversely, the prominent position within the Federal Government does not make the Federal Chancellor subject to stricter neutrality requirements ([...]). The case-law on the right of members of the government to issue political statements is directly informed by the role that the Federal Government is afforded as a collegial organ in the democratic process of the formation of the political will (cf. BVerfGE 138, 102 <114 ff. paras. 44 ff.>; 148, 11 <28 ff. paras. 52 ff.>; 154, 320 <337 f. paras. 50 ff.>). Nor does the competence to determine general guidelines of policy, which (only) applies within the Federal Government ([...]), on its own, justify imposing stricter neutrality requirements on the Federal Chancellor in participating in political competition. Likewise, the other competences held by and between state organs that the Basic Law affords to the Federal Chancellor, but not to the Federal Government, do not justify a different assessment ([...]). While the order of competences within the Federal Government gives rise to a right on behalf of the Federal Chancellor to issue political statements that is broader in scope, it does not, however, entail different requirements in terms of the principles of neutrality and objectivity for the Federal Chancellor as compared to the Federal Government.

7. a) The principle of equal opportunities of political parties, like the principle of equal suffrage does not give rise to an absolute prohibition of differentiation (cf. BVerfGE 135, 258 <286 para. 51>). However, due to its formal nature (cf. BVerfGE 8, 51 <64 f.>; 85, 264 <297>; 111, 54 <105>; 135, 259 <286 para. 51>; established case-law), any interference with the equal participation of political parties in political competition that is not justified on exceptional grounds (referred to in the past as “mandatory” grounds) is not permitted in principle (cf. BVerfGE 8, 51 <65>; 14, 121 <133>; 34, 160 <163>; 47, 198 <227>; 111, 54 <105>; 135, 259 <286 para. 51>). Any unequal treatment or interference by the Federal Government with the principle of equal opportunities of political parties must be justified by constitutionally recognised, legitimate reasons that are of equal weight to the principle of equal opportunities of political parties. (cf. in this respect regarding the principle of equal elections BVerfGE 6, 84 <92 f.>; 95, 408 <418>; 129, 300 <320>; 130, 212 <227 f.>; 135, 259 <286 para. 51>; regarding the principle of universal suffrage BVerfGE 42, 212 <340 f.>; 132, 39 <48 para. 25>; 151, 1 <19 para. 43>). In this regard, the principles of suitability and necessity for achieving legitimate purposes must be taken into account in each case (cf. BVerfGE 135, 259 <287 para. 53>).

b) Possible constitutional interests of equal weight are the protection of the Federal Government’s stability and capacity to act (see (aa) below) as well as safeguarding the trust in the Federal Republic of Germany’s reliability and its standing in the international community (see (bb) below). By contrast, the responsibility of governing and the concomitant public relations power of the Federal Government, do not on their own suffice to exempt the Federal Government from compliance with the principle of neutrality (see (cc) below).

aa) The Federal Government’s capacity to act is one constitutional interest that ‒ comparable with the proper functioning of the Bundestag (cf. on this BVerfGE 130, 318 <348> with further references) ‒ is of equal weight to the principle of equal opportunities of political parties (see (1) below). It is, first and foremost, incumbent on the Federal Chancellor to ensure the Federal Government’s capacity to act (see (2) below). The Federal Chancellor is afforded considerable leeway in this respect (see (3) below).

(1) In Arts. 63, 67 and 68, the Basic Law strives for a Federal Government formed through the will of the parliamentary majority that has the support of the majority and is capable of taking action (cf. BVerfGE 114, 121 <149>; cf. already BVerfGE 62, 1 <40>; 67, 100 <129 f.> [...]).

(a) Pursuant to Art. 67(1) first sentence GG, the Bundestag may only express its lack of confidence in the Federal Chancellor ‒ and not in individual Federal Ministers ‒ by electing a successor by the vote of a majority of its members and requesting that the Federal President dismiss the Federal Chancellor. This serves to ensure a stable government supported by a parliamentary majority (cf. BVerfGE 112, 118 <141> [...]).

(b) The same applies to provisions on a vote of confidence under Art. 68 GG. If a motion of the Federal Chancellor for a vote of confidence is not supported by the majority of the members of the Bundestag , the Federal President, upon the proposal of the Federal Chancellor, may dissolve the Bundestag within twenty-one days (Art. 68(1) first sentence GG). The right of dissolution shall lapse as soon as the Bundestag elects another Federal Chancellor by a vote of a majority of its members (Art. 68(1) second sentence GG). The purpose of this provision is to enable the incumbent Federal Chancellor to win over or consolidate a sufficient degree of parliamentary support during the current electoral term. The provision is to prevent a premature dissolution of the Bundestag and thereby serves to enhance political stability in terms of the relationship between the Federal Chancellor and the Bundestag (cf. BVerfGE 62, 1 <35, 39> [...]).

(c) In the context of the election of the Federal Chancellor, pursuant to Art. 63(4) GG, the Federal President may only dissolve the Bundestag if the majority of the members of the Bundestag did not vote for his proposed candidate, did not elect another Federal Chancellor within 14 days and if any candidate elected failed to receive a majority of the votes of the members of the Bundestag members in a subsequent round of voting. The primary goal of this provision, like Art. 68 GG, is to bring about the capability to win over a majority and to govern (cf. BVerfGE 62, 1 <40 f.>).

(d) The aforementioned constitutional provisions, assessed collectively, yield a direct constitutional goal of ensuring that the tasks of governing are performed by a functioning executive (cf. BVerfGE 62, 1 <74> dissenting opinion Rinck [...]). Maintaining the government’s capability to act is therefore a constitutional interest that is of equal weight to the right of equal opportunities of political parties.

(2) Ensuring the Federal Government’s capability to act is, first and foremost, the task of the Federal Chancellor.

(a) The Federal Chancellor is afforded a prominent position within the Federal Government. This is based on the Federal Chancellor’s election by the Bundestag (Art. 63(1) GG) and is further reflected in the right to form the cabinet (Art. 64(1) GG) and the right to determine the general guidelines of policy pursuant to Art. 65(1) GG ([...]). The “chancellor principle” thus expressed serves to “also constitutionally enshrine the stability of the Federation’s political leadership” ([...]). This principle ‒ together with the principle of ministerial autonomy [i.e. each Federal Minister is responsible for their department] and the principle of collegial responsibility [i.e. the Federal Chancellor and the Ministers make joint decisions on matters of a general political nature] ‒ is to guarantee a functioning government that is structured in a duty-oriented manner ([...]).

(b) This gives rise to a responsibility on the part of the Federal Chancellor to enable political leadership, and not only through unifying goals and policies into an overall concept and bringing varying political positions into balance ([...]). Rather, for the duration of the electoral term, the Federal Chancellor must also direct and ensure a stable Federal Government that is capable of taking action.

(3) The Federal Chancellor has a broad margin of appreciation when deciding on the measures necessary to ensure stability of the Federal Government’s capacity to act ([...]). In particular, the Federal Chancellor is not limited to exercising the competence to determine general guidelines of policy (Art. 65 first sentence GG) or the ability to change the composition of the Federal Government. Rather, the Federal Chancellor can also resort to less formal means, such as holding talks among government members or issuing public statements ([...]). The Federal Chancellor is not limited to exclusively addressing the Federal Ministers when setting forth general policy goals in public statements ([...]). Rather, the Federal Chancellor may also address those parliamentary groups, members of the Bundestag and political parties that support the Federal Government. To the extent that tensions between these groups might impair the Federal Government’s stability, the Federal Chancellor may also intervene and set a tone for the way forward in order to maintain the Federal Government’s capacity to act.

bb) Safeguarding the standing and trust that the Federal Republic of Germany enjoys in the international community is another constitutional interest that is equal to the principle of equal opportunities of political parties (see (1) below). The Basic Law entrusts the protection of this constitutional interest first and foremost to the Federal Government and, in particular, the Federal Chancellor (see (2) below).

(1) With its Preamble, and Art. 1(2), Art. 9(2), Art. 16(2), Arts. 23 to 26 and Art. 59(2), the Basic Law binds the Federal Republic of Germany to the international community and ensures that German state authority is systematically geared towards international cooperation (cf. BVerfGE 63, 343 <370>; 75, 1 <17>; 108, 129 <137>; 111, 307 <319>; 112, 1 <25>; 123, 267 <345 f.>; 141, 220 <341 para. 325>; cf. also BVerfGE 89, 155 <183>). In order to achieve this, the Federal Republic of Germany, among others, must be viewed as an esteemed, predictable and reliable partner within the international community. Accordingly, it is a constitutionally enshrined goal to guarantee the Federal Republic of Germany’s capacity to act and form coalitions in the context of foreign policy and to ensure its participation in international cooperation (cf. in this respect BVerfGE 100, 313 <371, 382>; 108, 129 <137>; 141, 220 <341 f. para. 325>; 154, 152 <225 para. 106 f., 233 f. para. 128, 240 para. 144, 248 para. 162>). This constitutional interest is of equal weight to the principle of equal opportunities of political parties.

(2) The duty to uphold and implement this constitutional commitment to participation in the international community is borne primarily by the Federal Government and, in particular, the Federal Chancellor.

(a) Pursuant to Art. 32(1) GG, relations with foreign states shall be conducted by the Federation. In this way, the Basic Law ensures that the Federal Republic of Germany presents itself as a unitary actor to the international community (cf. BVerfGE 2, 347 <378>; 55, 349 <368> [...]). In this context, the term “conducting relations with foreign states” is to be understood in a broad sense. It also encompasses informal, non-legislative acts, as long as these are suitable for being ascribed to the Federal Republic of Germany ([...]). “Conducting relations with foreign states” refers to the state’s role in designing and managing foreign relations ([...]).

(b) In general, it is the executive branch of government, in particular, the Federal Government, that is responsible for managing relations with foreign states, international organisations, intergovernmental bodies and systems of mutual collective security as well as ensuring overall state responsibility for the way in which the Federal Republic of Germany is represented abroad (cf. BVerfGE 68, 1 <87>; 131, 152 <195>). The role of Parliament in this context is limited based on the principle that state functions must be exercised in a duty-oriented manner and by the appropriate organ; this, however, does not place the Federal Government outside of parliamentary control (cf. BVerfGE 104, 151 <207>; 131, 152 <195 f.>; 143, 101 <140 para. 130>). Based on these considerations, the Basic Law grants the government a wide margin for autonomous decision-making when performing its duties in foreign policy matters (cf. BVerfGE 40, 141 <178>; 55, 349 <365>; 104, 151 <207>; 131, 152 <195>; 143, 101 <140 para. 130>).

(c) The Federal Chancellor’s authority to determine the general guidelines of government policy also extends to matters of foreign policy. This is reflected in § 1(1) first sentence of the Rules of Procedure of the Federal Government (Geschäftsordnung der Bundesregierung – GOBReg) pursuant to which the Federal Chancellor determines the general guidelines of domestic and foreign policy ([...]). In addition, § 15(1) GOBReg provides that all matters of general foreign policy significance be submitted to the Federal Government for deliberation and decision making in its role as a collegial organ (cf. for Federal Government as a term of constitutional law, BVerfGE 26, 338 <395 f.>; 91, 148 <166>; 100, 249 <259>; 115, 118 <149>; 132, 1 <21 para. 54>; 137, 185 <237 f. para. 144>). The Federal Chancellor thus carries particular responsibility for safeguarding the trust in the Federal Republic of Germany’s reliability and its standing in the international community.

cc) The Federal Government and its members are charged with the task of governance, which includes the power to inform the public and to maintain public relations (see (1) below). While this, on its own, does not afford the right to interfere with the competition of political parties in a targeted way (see (2) below), it does not prevent the Federal Government from defending constitutional principles and values and, in particular, dealing with anti-constitutional parties (see (3) below).

(1) (a) The power to inform the public and maintain public relations is an integral part of the task of governance (cf. BVerfGE 138, 102 <114 para. 40>; 148, 11 <27 para. 51>; 154, 320 <336 para. 48> with further references). Not only is it permissible under constitutional law for the Federal Government and its members to maintain public relations, it is also 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 the problems at hand (cf. BVerfGE 148, 11 <27 f. para. 51>; 154, 320 <336 ff. para. 49>; each with further references).

(b) The power to inform the public and maintain public relations includes presenting and explaining government policies relating to measures that are taken and future projects that are relevant to current or foreseeable problems (cf. BVerfGE 20, 56 <100>; 44, 125 <147>; 63, 230 <243>; 138, 102 <114 para. 40>; 148, 11 <27 f. para. 51>; 154, 320 <337 para. 49>). This also includes explaining and defending government policies against attacks and criticism in a manner consistent with the principle of objectivity (cf. BVerfGE 148, 11 <29 f. paras. 56 f.>; 154, 320 <338 para. 52>). Moreover, the power to maintain public relations encompasses providing information about questions and processes that directly affect citizens, have a considerable impact on the public or are currently contested, even when such questions and processes go beyond the government’s own policy-shaping activities or relate to events well in the future (cf. BVerfGE 20, 56 <100>; 138, 102 <114 para. 40>; 148, 11 <28 para. 51>; 154, 320 <337 para. 49> […]).

(c) A general prerequisite for the exercise of the power to maintain public relations by state organs is compliance with the existing order of competences (cf. BVerfGE 44, 125 <149>; 105, 252 <270>; 148, 11 <37 para. 77>; 154, 320 <351 para. 94>). Matters that are within the constitutional sphere of the Länder, and thus are to be autonomously taken care of at the Land level (cf. BVerfGE 99, 1 <11 f.>), can still fall within the scope of public relations activities of the Federal Government and its members, so long as the acts by the government and its members occur within the framework of their task of governing (cf. BVerfGE 105, 252 <270>). This is particularly the case when processes occurring within one Land have a supraregional character, due to their significance across Länder or their relevance for matters of foreign policy, and therefore can be a suitable subject for nationwide public relations activities. The power to maintain public relations thus encompasses statements by the Federal Government and the Federal Chancellor concerning processes occurring at Land level when such statements are a manifestation of the exercise of responsibility for the nation as a whole.

(2) It must, however, be taken into consideration that the authority conferred to the Federal Government and its members and the state resources at the government’s disposal put the government in a position where it can strongly influence the formation of the political will of the people. This runs the risk that political competition between parties can be considerably distorted and a potential reversal of the process of the formation of the political will from the people to the state organs (cf. BVerfGE 138, 102 <115 para. 45>; 148, 11 <28 para. 52>; 154, 320 <337 para. 50>). It must be accepted that, as part of the political processes in the free democracy envisaged under the Basic Law, government actions have a considerable impact on the election prospects of competing political parties (cf. BVerfGE 44, 125 <140>; 138, 102 <114 f. para. 44>). This must, however, be distinguished from targeted interference with the competition of political parties by the Federal Government. The Basic Law prohibits the Federal Government from identifying with individual political parties or using state means and opportunities to its benefit or detriment ‒ this also applies when the Federal Government exercises its power to inform and maintain public relations (cf. BVerfGE 44, 125 <141 ff.>; 138, 102 <115 para. 45>; 148, 11 <28 para. 53>; 154, 320 <337 para. 51>).

Accordingly, the permissible scope of the Federal Government’s public relations activities ends where any advertisement for or exercise of influence against competing individuals or political parties begins. The principle of equal opportunities of political parties derived from Art. 21(1) first sentence GG does not allow the Federal Government or its members to use their public relations activities to support parties in government or work against opposition parties (cf. BVerfGE 44, 125 <148 ff.>; 138, 102 <115 para. 46>, 148, 11 <28 f. para. 54>; 154, 320 <338 para. 51>).

(3) However, this does not alter the fact that the Federal Government is not prevented from and indeed has the obligation to defend the principles and values enshrined in the Constitution (cf. BVerfGE 113, 63 <78> [...]). The Federal Government’s constitutional duty to protect the free democratic basic order also obliges it to deal with anti-constitutional political parties. An assessment that a political party is anti-constitutional is, to the extent that such assessment complies with law and justice, rightly part of a public dispute in which the political party concerned is to defend itself by the means available in public debate. Such assessment only becomes impermissible when, as viewed in a critical appraisal of the Basic Law’s guiding notions, the assessment is no longer understandable to the point that it must be concluded that the assessment rests on irrelevant considerations and arbitrarily impairs the right of the party concerned to equal opportunities in political competition (cf. BVerfGE 40, 287 <293>; 138, 102 <116 para. 47>).

II.

Based on these standards, the applications are well-founded, both regarding the statement at issue (see 1. below) and its publication on the respondents’ websites (see 2. below).

1. The Federal Chancellor made the statement at issue in an official capacity (see (a) below). The statement impinges on the applicant’s right to equal opportunities in political competition derived from Art. 21(1) first sentence GG (see (b) below) in an unjustified manner (see (c) below).

a) Distinguishing between the exercise of public office and party political participation in the contest of political ideas requires an assessment of the specific circumstances of the statement at issue (cf. BVerfGE 138, 102 <118 para. 56>; 154, 320 <340 para. 58>). From such assessment, it is to be concluded that respondent no. I made the statement at issue in her official capacity as Federal Chancellor. This follows, in particular, from the setting in which the statement was made (see (aa) below). The fact that the statement was referred to as a “preliminary remark” does not justify a different assessment (see (bb) below). Likewise, based on the content of the declaration, it is not ascertainable to a sufficient extent that the Federal Chancellor was acting as a party politician or a private individual (see (cc) below). The other circumstances of the present case likewise suggest that the Federal Chancellor was acting in an official capacity (see (dd) below).

aa) The statement in dispute was made in the context of a foreign state visit during which respondent no. I travelled to South Africa in her official capacity as Federal Chancellor. In occasion of this state visit, the Federal Chancellor held a press conference together with the South African President. It was in this press conference that the statement at issue was made. During the press conference, the Federal Chancellor and the South African President were standing in front of flags of the Federal Republic of Germany and the Republic of South Africa and speaking from lecterns bearing the official South African coat of arms. Prior to the statement at issue, the South African President, among others, expressed his joy at welcoming “Chancellor Merkel, ambassadors, ministers, highest government officials” and referred to the “Chancellor” and “her delegation” multiple times. Moreover, he pointed out how important Germany was as a strategic partner for South Africa.

These circumstances indicate that the Federal Chancellor was acting in an official capacity. She made the statement at a government press conference, and thus, in a context exclusively related to government office. The occasion for and envisaged contents of the press conference were talks that she had held in her capacity as Federal Chancellor during a state visit to South Africa. The statement at issue was therefore made in a setting that was only available to respondent no. I due to her holding of the office of Federal Chancellor.

The manner in which the statement was disseminated by the journalists present was influenced solely by editorial decisions ([...]) and therefore plays no decisive role in determining whether the statement was made in an official capacity.

bb) Respondent no. I’s announcement to “mak[e] some preliminary remarks concerning yesterday’s election of a new Minister-President in Thuringia” is not sufficient to support an assumption that respondent no. I was not acting in her official capacity as Federal Chancellor.

(1) The mere mention of the intention to make “some preliminary remarks” does not inevitably lead to the conclusion that such remarks were meant to be made in a way not related to public office. Rather, the only thing to be immediately inferred from this announcement was that the statement at issue preceded the Federal Chancellor’s statements regarding the actual topic of the press conference, i.e. the content and results of the talks with representatives of the Republic of South Africa.

(2) Likewise, the information that these preliminary remarks were made “for reasons of domestic policy” does not preclude the possibility for the statement to be made in an official capacity. The Federal Chancellor is responsible as a leader for government policy as a whole, that is, both matters of domestic and foreign policy (cf. BVerfGE 105, 279 <301>). This understanding applies equally when a statement concerning domestic policy is made in a foreign policy context such as in the present case, where the statement was made in the context of an overseas state visit by the Federal Chancellor. Whether such a statement was made in an official or unofficial capacity is to be assessed from the perspective of an understanding citizen ([...]) in accordance with the specific content of the statement and its overall context (cf. BVerfGE 154, 320 <340 paras. 58, 347 ff. paras. 80 ff.>).

cc) In terms of substance, it is not ascertainable from the statement itself that the Federal Chancellor sufficiently distanced herself from her government office to rebut the presumption as to her speaking in an official capacity.

(1) Any assessment in this context must be based on the “preliminary remarks” in their entirety. These preliminary remarks are not limited to the statement at issue cited by the applicant. Rather, the Federal Chancellor went on to say that, with the election of the Minister-President of the Free State of Thuringia, the CDU had “contravened its values and convictions”, and that the task for the coming days was to make clear that this was in no way in line with the CDU’s convictions. From this, it becomes clear that in her “preliminary remarks”, the Federal Chancellor primarily commented on the election of the Minister-President with respect to the way in which members of the Thuringian state parliament who belonged to her own party had behaved. This circumstance, on its own, does not warrant the conclusion that respondent no. 1 made the statement at issue exclusively as a party politician or private individual, particularly given that she described the election overall as “unforgivable” and called for its result to be undone.

(2) It is true that, in the statement at issue, respondent no. 1 refers to matters that lie outside of the regulatory competences held by the Federal Chancellor and the Federal Government that is led by the Federal Chancellor. Neither the election of the Minister-President in the Länder, nor the manoeuvring of the political parties involved, which are represented by state parliament members, are subject to any regulatory authority by the Federal Government. This does not mean, however, that the statement at issue cannot have been made in an official capacity. Typically, government activity is not limited to regulatory competences. Even activities outside of those competences that flow from the government office qualify as acts in an official capacity if the authority of government office is invoked. Whether or not a statement falls within the competence of the person making the statement is only of decisive importance for the lawfulness of such acts, not for distinguishing between official and non-official acts ([...]). Contrary to the submission of the respondents, the Federal Chancellor’s lack of authority to solve conflicts between political party groups does not mean that the statement at issue cannot have been made in an official capacity. The question of whether, in the exercise of her office, it would have been possible for the Federal Chancellor to put her words into action is not at issue in the present case. Instead, the present matter solely concerns whether her words were spoken in an official capacity.

(3) It is likewise irrelevant that, in making the statement at issue, respondent no. I did not mention her official title, as compared to when she later explicitly referred to her role “as Federal Chancellor” when talking about South Africa. From the perspective of an understanding citizen, it is not sufficiently clear that this implied a change in the speaker’s role and marked a switch from her role as party politician or private individual to her role as Federal Chancellor. The fact that the elaborations on South Africa seamlessly followed the “preliminary remarks”, and that the Federal Chancellor simply introduced them by saying “Now I turn to South Africa”, further weigh against any presumption as to a switch in the speaker’s role.

(4) Respondent no. I was free to make it sufficiently clear that she would be commenting on the election of the Thuringian Minister-President as a party politician or private individual rather than in her capacity as Federal Chancellor (cf. BVerfGE 148, 11 <35 para. 66> [...]). Despite the external setting of the press conference, which suggested that she was acting in an official capacity, she did not make use of this possibility.

dd) The other circumstances surrounding the statement at issue likewise argue against any presumption as to the Federal Chancellor acting in a non-official capacity. That she was a prominent member of her party and was perceived as such by the public does not, on its own, justify the conclusion that she was acting in a non-official capacity (see (1) below). To the extent that the respondents assert that making the statement was necessary in order to stabilise the government coalition (see (2) below) and to prevent foreign relations from being strained (see (3) below), this in fact suggests the statement was made in an official capacity. By contrast, the fact that the statement was later published on the websites of the Federal Government and the Federal Chancellor bears no relevance in determining whether the statement was made in an official or unofficial capacity (see (4) below).

(1) Respondent no. I was a prominent member of her political party. Although she was no longer chairperson of the CDU at the time she made the statement at issue, by virtue of her office she was still a member of the Presidium of the CDU and the Federal Executive Board of the CDU. This does not mean, however, that all of her statements concerning party politics were made in her role as party politician. This is particularly the case when, as with the statement at issue, the external setting was unambiguously related to the government office. The timing of the statement provides a further argument against the inference that, due to respondent no. I’s role as a party politician, the statement at issue must be of party political nature: The Federal Chancellor made the statement at a time when the then-federal chairperson of the CDU had already issued a statement concerning the election of a new Minister-President in Thuringia ‒ a statement which the Federal Chancellor herself also referred to later in the press conference. [...]

[...]

b) The statement at issue contained a negative portrayal of the AfD (see (aa) below). The Federal Chancellor thereby exerted one-sided influence on the competition of political parties (see (bb) below).

aa) In the statement at issue, the Federal Chancellor did not merely comment on the election of the Thuringian Minister-President and the conduct of the CDU members in the Thuringian state parliament. Her statement also included a general comment on dealing with the AfD and where to locate the AfD on the democratic spectrum.

(1) The decisive factor in determining how a statement by a government member is to be understood in substantive terms is not the speaker’s intent, but the way in which the respective statement is to be interpreted, from the perspective of an objective recipient (cf. for such an interpretation BVerfGE 148, 11 <36 f. para. 71 ff.>; 154, 320 <345 f. para. 72 ff.>). A statement made by a government member acting in official capacity can impair the equal opportunities of political parties regardless of whether the government member making that statement behaves negatively towards a specific party in a conscious and intentional way.

(2) Based on these standards, a negative portrayal of the applicant is to be inferred from the statement at issue. This applies regardless of the fact that the Federal Chancellor did not address the AfD directly, but instead primarily commented on the behaviour of the Thuringian state parliament members belonging to her own party. [...]

(a) By saying that the election of the Minister-President contravened the fundamental belief that majorities should not to be obtained through the AfD’s assistance, the Federal Chancellor characterised the AfD in general as a party with which any (parliamentary) cooperation must be ruled out from the outset. This implies excluding the AfD from the process of the parliamentary and democratic formation of the political will in general, i.e. beyond the context of the events that prompted the statement at issue. This assessment is reinforced by the fact that the Federal Chancellor described the process of cooperation in the election of a new Minister-President in Thuringia as “unforgivable” and called for the election result to be undone.

The Federal Chancellor did not limit herself to saying that it was the belief of her own party, the CDU, that there is no room for cooperation with the AfD. Rather, the statement at issue culminated with the words that the election of a new Minister-President in Thuringia had been “a bad day for democracy”. The Federal Chancellor thus made it clear that she generally considers the AfD’s participation in the formation of parliamentary majorities to be damaging for democracy, thereby implying a negative value judgment on the applicant’s ability to cooperate and form coalitions in a democratic state in general.

[...]

bb) This negative value judgment concerning the AfD amounts to an interference with the right to equal participation in the formation of the political will derived from Art. 21(1) first sentence GG. The applicant’s description of the statement at issue as a “destructive value judgment phrased in abhorrent terms”, “call for boycott“ or stigmatisation of the applicant as “‘leper’ and democracy’s ‘enemy’” considerably overstates the objective meaning of the statement. This notwithstanding, the Federal Chancellor did exert one-sided influence on political competition by making the statement at issue.

(1) Whether a statement by a government member violates the principle of neutrality must be determined on a case-by-case basis based on whether, from the perspective of an understanding citizen, the statement is an open or a hidden endorsement for or influence against competing individual political parties (cf. BVerfGE 138, 102 <117 ff. para. 53 ff.>; 148, 11 <34 f. para. 66>; 154, 320 <340 f. para. 58 ff.>). Such influence can be exercised not only through direct appeals to elect or to not elect a certain political party, but also via negative portrayals of the activities or aims of individual political parties.

(2) Based on these considerations, the statement at issue interferes with political competition to the AfD’s detriment. By explicitly mentioning and negatively portraying the AfD ‒ a political party participating in political competition ‒ and denying it any ability to cooperate or form coalitions, the Federal Chancellor exceeded the substantive limits that the principle of neutrality imposes on the right to issue political statements. [...]

(a) It also bears no relevance that the statement only concerns the AfD indirectly and that it primarily addresses the behaviour of members of the CDU parliamentary group in the Thuringian state parliament. It is true that no direct influence is thus exerted on the AfD’s competitive position in this regard. However, the fact that, in her statement, the Federal Chancellor excluded the AfD from the group of political parties with whom cooperation is possible amounts to an interference with political competition, the effect of which does not fall short of a direct attack on the AfD.

The Federal Chancellor obviously sided against the AfD by indirectly, but unmistakably, stating that cooperating with the AfD to form parliamentary majorities is not an option. By saying that “it was a bad day for democracy”, the Federal Chancellor not only advocated for her own party to exclude forming parliamentary majorities by cooperating with the AfD, but also addressed the parliamentary system as a whole. The Federal Chancellor excludes the AfD from the group of political parties with which it is permissible to cooperate and form coalitions within the democratic spectrum and she thereby (indirectly) impairs the AfD’s position in the political competition.

(b) The respondents’ contention that the AfD’s right to equal opportunities cannot have been interfered with because the Federal Chancellor did not comment on the AfD’s right to stand for election does not have merit.

The statement at issue implicitly includes a negative value judgment concerning the AfD’s right to stand for election. This interpretation is not refuted by the argument, submitted by the respondents, that the state parliament election in Thuringia had already been concluded by the time the statement at issue was made. With her choice of words, the Federal Chancellor expressed a negative value judgment concerning the AfD’s ability to form coalitions and to cooperate. Such value judgment goes beyond the assessment of a specific event and can potentially have an effect on future elections. It is certainly not implausible for such a value judgment to negatively influence the AfD’s standing among voters and thus affect the AfD’s chances of being elected. [...]

(c) It thus also bears no relevance to the matter at hand that the statement at issue, in referring to the election of a new Minister-President, concerned a process that took place after the state parliament election. The formation of the political will is a continuous process. For this reason, the principle of equal opportunities of political parties requires that the principle of state neutrality be observed outside of election campaigns as well (cf. BVerfGE 148, 11 <25 f. para. 46>; 154, 320 <336 para. 48>; each with further references). […].

(d) A different assessment does also not result from the respondents’ argument concerning compliance with the principle of objectivity. The fact that the Federal Chancellor did not speak about the AfD in a tendentious or polemic manner does not mean that influence on political competition cannot have been exerted in a one-sided and impermissible manner. The principle of objectivity does not concern the intensity of a statement’s interference; instead, its meaning only unfolds with respect to the question of whether a statement that affects the right to equal opportunities of political parties can be justified in the context of official government activities geared at informing the public and maintaining public relations (cf. BVerfGE 154, 320 <338 para. 52> with further references).

(e) [...]

c) The interference with the AfD’s right to equal opportunities is not justified. There are no reasons for such interference that are to be considered legitimate under constitutional law and that are of equal weight to the principle of equal opportunities of political parties. A justification of the Federal Chancellor’s statement does not arise from either the protection of the Federal Government’s stability and capacity to act (see (aa) below), or the duty to safeguard the standing and trust that the Federal Republic of Germany enjoys in the international community (see (bb) below). The contested statement also does not qualify as a measure permissible in the context of the Federal Chancellor’s public relations work (see (cc) below).

aa) It is not ascertainable, either from the respondents’ submissions or otherwise, that it was necessary for the Federal Chancellor to make the statement at issue in order to protect the Federal Government’s stability and capacity to act. It is true that the election of a new Minister-President in the Free State of Thuringia had been heavily criticized on the federal level by the coalition parties and had led to the convening of the coalition committee (see (1) below). It is not ascertainable, however, that this would have led to jeopardising the Federal Government’s stability and capacity to act in a way that could have justified interfering with the AfD’s rights in the manner that the Federal Chancellor’s public statement did (see (2) below).

(1) The respondents have substantiated in a comprehensible manner that the federal coalition partners regarded what had happened during the Minister-President election as a breach of the fundamental values underlying the work of the government coalition. This point is not invalidated by the fact that the 2018 coalition agreement between the CDU, the Christlich-Soziale Union in Bayern (CSU) and SPD did not explicitly exclude a cooperation between government parties and the AfD ‒ it is not required for all ideas underpinning the cooperation within a coalition government to be explicitly mentioned in coalition agreements ([...]).

(2) The information about the responses to the election of a new Minister-President in Thuringia is not, on its own, sufficient to substantiate the presumption that the Federal Government’s capacity to act had been called into question. The Federal Chancellor is afforded a wide margin of appreciation with respect to the question of which measures are necessary to ensure the Federal Government’s stability and capacity to act (see para. 103 above). This, however, does not exempt the Federal Chancellor from the requirement to plausibly set out – or ensure that it is ascertainable in some other way – that the Federal Government’s stability was indeed affected in the individual case, thus making an interference with the right to equal opportunities of political parties derived from Art. 21(1) first sentence GG necessary. This requirement was not met here.

(a) The critical statements issued by leading representatives of the coalition parties SPD and CSU in the direct aftermath of the Minister-President election in Thuringia do not suffice, on their own, to pose a threat to the Federal Government’s stability and capacity to act. [...] Given that all coalition parties unanimously criticised the election in Thuringia, it is not ascertainable that the election had called into question the Federal Government’s stability and capacity to act.

(b) Furthermore, at the press conference, the Federal Chancellor said herself that she had personally spoken about what had happened during the Minister-President election in Thuringia with the chairperson of the SPD and the Deputy Chancellor, and that they had jointly agreed to convene the coalition committee. [...]

The Basic Law does not include legal provisions as to the coalition committee or on coalition agreements. In the context at hand, it is to be presumed that the task of the coalition committee is to coordinate the work of the coalition parties amongst themselves as well as with the Federal Government, prepare decisions and overcome disagreements ([...]). This allocation of tasks is confirmed by the coalition agreement between CDU, CSU and SPD, which was in force at the time the statement in dispute was made ([...]).

[...]

Given that the convening of the coalition committee had already been agreed upon, the mechanism provided for in the coalition treaty on how to address situations of crisis in government work had already been activated at the time the statement in dispute was made. It is not ascertainable from the respondents’ submissions or in any other source that the Federal Government’s stability and capacity to act were nevertheless at risk until the coalition committee convened and that the statement at issue had been made and the AfD’s rights were thereby interfered with in order to protect a constitutional interest of equal weight.

bb) Nor is it ascertainable that, as a consequence of the election of the Thuringian Minister-President, the standing and trust the Federal Republic of Germany enjoys in the international community had been affected in a way that could justify a statement in which the Federal Chancellor publicly took sides against the AfD.

(1) It is to be assumed that the Federal Chancellor is afforded a wide margin of appreciation in terms of assessing whether the Federal Republic of Germany’s capacity to act in foreign policy matters is called into question and which measures are to be taken in this respect (cf. para. 108 above). Nevertheless, the respondents must substantiate that, or it must be ascertainable in some other way that, as a consequence of the Minster-President election in Thuringia, foreign partners doubted or could be assumed to doubt the Federal Republic of Germany’s reliability and trustworthiness in a way that jeopardised the capacity to act in foreign policy matters. This requirement was not met either.

(2) The respondents submitted that, due to the presumed cooperation between members of the CDU and the AfD during the Minister-President election in Thuringia, there was an international expectation that the CDU as the largest party in government would take a stand on the events in Thuringia. Such expectation, however, had already been met at the time the Federal Chancellor made the statement at issue, given the statement by the CDU chairperson.

(3) The fact that the parties supporting the Federal Government had unanimously criticised the Minister-President election in Thuringia suffices for it to be not ascertainable that the reputation, the capacity to act in foreign policy matters or the international community’s trust in the reliability of the Federal Republic of Germany had been damaged or even just subject to threat at the time the Federal Chancellor made the statement at issue. There are doubts as to any such damage or risk of damage having occurred, especially since the Minister-President election took place within the constitutional sphere of a Land and not the Federation. Additionally, while the elected Minister-President was supported by the AfD members in the state parliament, he was neither a member of the AfD, nor had he been proposed as a candidate by the AfD. Furthermore, all government parties at the federal level distanced themselves immediately and clearly from the manner in which the majority had been obtained in the Minister-President election. Against this backdrop, it cannot be assumed that the political events occurring at Land level during the Minister-President election in Thuringia undermined the standing and trust in the Federal Republic of Germany to an extent that could have restricted the capacity to act in foreign policy matters. No responses by foreign state organs have been set out to this effect, nor are any such responses ascertainable.

(4) The press articles submitted by the respondents to demonstrate the far-reaching international effects do not justify a different assessment. They are limited to reporting the results of the Minister-President election and the reactions it triggered in the German political arena. Where the press articles refer to a “dam break” or “breaking a taboo”, they mostly cite German responses to the events or provide general assessments of the situation. From these assessments, it is not ascertainable that what happened during the Thuringian election is of significance in terms of foreign policy. The submitted press articles also do not include reports on political responses by foreign decision makers. According to some of the press coverage, the condemning response to the events by German policymakers confirms that any cooperation with the AfD continues to be a taboo. Such assessment is linked with, albeit not exclusively, the Federal Chancellor’s statement at issue. To a greater extent, however, such assessment rests on the position taken by the CDU chairperson.

(5) Against this backdrop, there is no sufficiently objective indication that the Federal Republic of Germany’s capacity to act in foreign policy matters and the trust it enjoys in the international community was at risk in a way that could justify the interference with the AfD’s right to equal opportunities. By contrast, the Federal Chancellor’s subjective assessment as to the existence of such a risk, on its own, does not suffice in this context. Otherwise, there would be extensive, almost limitless possibilities for the Federal Chancellor to one-sidedly intervene in the competition of political parties by invoking the authority of the office of Federal Chancellor.

cc) The Federal Chancellor’s power to inform the public and maintain public relations also does not justify the interference with the applicant’s right to equal opportunities of political parties derived from Art. 21(1) first sentence GG in the present case. There is no need to determine to what extent comments on the Minister-President election in Thuringia fall within the scope of suitable public relations activities for the Federal Government and its members (see (1) below). This is because, in any case, by making the statement at issue, respondent no. 1 violated the principle of neutrality, which the Federal Government and its members must generally observe when engaging in public relations activities (see (2) below).

(1) Doubts as to whether the statement at issue falls within the scope of suitable public relations activities for the Federal Chancellor arise from the fact that the statement did not refer to the Federal Chancellor’s or the Federal Government’s own governance activities. The statement did not serve to present or explain measures taken or projects envisaged by the Federal Chancellor or the Federal Government, nor was it made to defend the Federal Government’s policies against attacks or criticism.

In addition, given that the election of a Minister-President is part of the government-forming process in a Land , such elections belong to the constitutional sphere of the Länder . Except for those cases falling under Art. 37 GG, the Federal Chancellor or the Federal Government hold no regulatory authority or any other competences to influence Minister-President elections. If anything, the election of a new Minister-President in the Free State of Thuringia could only fall within the scope of the Federal Chancellor’s power to inform and maintain public relations when it involves issues that extend beyond the Thuringian constitutional sphere, are currently in dispute and significantly affect the public (cf. BVerfGE 20, 56 <100>; 138, 102 <114 para. 40>; 148, 11 <28 para. 51>; 154, 320 <337 para. 49>).

(2) (a) In any event, however, the principle of neutrality, which is applicable in this context, precludes a justification of the Federal Chancellor’s statement based upon the power to inform and maintain public relations. As set out above (see para. 115 above), the principle of equal opportunities of political parties does not allow for the Federal Government or its members to use the power to engage in public relations activities to support the parties in government or to combat opposition parties. In particular, this applies to public statements concerning subject matters that lie beyond the Federal Government’s own responsibility of governance. The Federal Chancellor’s statement at issue is incompatible with these limits set by the principle of neutrality and the principle of equal opportunities of political parties. The statement portrayed the AfD in a negative manner and in a way that denies the party any ability to form coalitions or to cooperate within the democratic spectrum. The Federal Chancellor thereby one-sidedly influenced political competition (see paras. 144 ff. above).

(b) It is also not ascertainable that the statement was made in order to protect the free democratic basic order from anti-constitutional endeavours. It is true that, given the presumed cooperation with AfD members in obtaining a parliamentary majority, the Federal Chancellor referred to the Minister-President election in Thuringia as a “bad day for democracy” and called for its result to be undone. In her statement, however, the Federal Chancellor did not mention that an absolute refusal to cooperate with the AfD was necessary to protect the free democratic basic order or that the AfD had an anti-constitutional agenda. Rather, it remains an open question as to why obtaining parliamentary majorities with the support of AfD members make for a “bad day for democracy” and contravene the fundamental values held by the CDU. In light of the foregoing, there is no need to determine whether a qualification of the AfD as an anti-constitutional party would have led to the applicable constitutional requirements being met (see para. 116 above).

2. To the extent that the statement at issue here was published under the heading “Press conference by Federal Chancellor Merkel and the President of South Africa, Cyril Ramaphosa” on the respondents’ websites, the application is also well-founded. In publishing the statement on their websites, the respondents made use of official resources (see (a) below) and employed them in the political debate (see (b) below) without this being justified (see (c) below).

a) The publication of the statement at issue on the respondents’ official websites qualifies as an act in official capacity because the respondents invoked the authority of government office in a specific way and used resources that were only available to the Federal Chancellor and the Federal Government. The publication’s official character is not precluded by the fact that the published text referred to the statement by respondent no. 1 as a “preliminary remark” and that the relevant passage did not mention the office of Federal Chancellor. These do not alter the official character of the statement itself in any way (cf. paras. 124 f., 129). They have even less effect as to the official nature of the statement’s subsequent publication on the respondents’ websites, which display the respondents’ respective official coat of arms carrying the federal eagle together with the lettering “The Federal Chancellor” and “The Federal Government” respectively. From an objective viewpoint, these symbols combined with the explicit reference to the office of Federal Chancellor in the chosen headline leave no doubt as to the official nature of the publication.

[...]

b) The respondents have also employed the official resources used to participate in the political debate. Certainly, the online publication of the Federal Chancellor’s “preliminary remarks” also served to further disseminate the statement at issue included therein. Given that the statement portrayed the AfD in a negative manner and that such interference with the right to equal opportunities of political parties is not justified in the case at hand, the publication of the statement leads to a separate violation of the AfD’s right to equal participation in the competition of political parties derived from Art. 21(1) first sentence GG.

c) The interference is not justified. Such justification neither follows from the duty to authentically document government action (see (aa) below) nor from the rights of third parties to obtain information (see (bb) below).

aa) (1) The respondents submit that, in terms of compliance with authentic documentation, it would have been untenable to exclude the passage at issue from the publication of the press statement. This argument does not justify the way in which the statement’s publication interfered with the right to equal opportunities of political parties, particularly given that the respondents submit that the statement at issue was spoken by respondent no. I in her capacity as a party politician. It is not evident that the Federal Government’s press and information office is under an obligation to ‘chronicle’ events and authentically document statements made in a party political context. [...]

(2) In the case at hand, the statement at issue must be qualified as a statement by the Federal Chancellor in her official capacity. The interest in complete and authentic documentation of government activities is generally to be recognised and includes visits abroad by the Federal Chancellor. Such interest, however, does not extend to disseminating declarations that unjustly interfere with the right to equal opportunities of political parties derived from Art. 21(1) first sentence GG. Otherwise, statements by government members that violate the principle of neutrality could be officially disseminated by invoking the duty to document government activities. The interference with the right of political parties (Art. 21(1) first sentence GG) resulting therefrom could thus be perpetuated and enhanced (cf. BVerfGE 154, 320 <350 f. para. 92>).

[...]

bb) To the extent that the respondents submit that the statement was published merely in general anticipation of the obligation to provide information under the Freedom of Information Act or the Press Acts, there is no need to determine whether such obligation exists here. [...]

An obligation to provide information would only arise if and when an application was filed, and then, only to the extent applicable to that particular case. In cases where the official statement at issue must be provided in response to specific requests by third parties (and might subsequently be published in an anonymised version), a fundamentally different assessment is warranted, as opposed to the case at hand, where the respondents addressed the public on their own accord through publication on their official websites. The latter amounts to an active dissemination of a statement that takes a one-sided position to the detriment of the applicant and employs public resources in the political debate that are unavailable to political competitors. The AfD’s right to equal opportunities is thereby violated irrespective of the existence of any individual rights to information.

D.

[...]

E.

The decision was taken with 5:3 votes.

Dissenting opinion of Justice Wallrabenstein

to the Judgment of the Second Senate of 15 June 2022 - 2 BvE 4/20, 2 BvE 5/20 -

The Federal Chancellor did not act in breach of the Constitution. When the Chancellor issues a political statement, the contents of such statement are not subject to a neutrality assessment by the Federal Constitutional Court.

I.

1. […]

2. Right at the decisive first step of this neutrality assessment, the classification of the Federal Chancellor’s statement as an act in official capacity, the Senate majority wants to apply an objective standard based on a perspective of a mature and understanding citizen (see paras. 80, 125). But this standard is not suitable for distinguishing between the exercise of public office and statements made by a party politician.

Holders of government office are usually perceived in their dual role. Given the overlap of public office and party affiliation, citizens only expect neutrality from a member of government in limited situations. The Senate acknowledges these facts, both in established case-law (BVerfGE 138, 102 <118 para. 54>; 148, 11 <32 para. 63>; 154, 320 <339 para. 55>) and in the present case (see para. 77 above), but does not follow through on them. It is precisely because of the Chancellor’s dual role that classifying the statement at issue here as simply a “statement by the Federal Chancellor” does not pose any difficulties. By contrast, the hypothesis of the Senate majority that the Chancellor could clarify that she was speaking only as a party politician by sufficiently distancing herself from her public office is unproven and raises doubts (see paras. 126 ff.). It would make more sense to determine instead whether, as an exception from the usual dual role, a member of government is speaking exclusively in their official capacity by clearly distancing themselves from their role as a party politician.

Citizens rely on media reporting to form their personal political will. It was therefore unrealistic for the Senate majority to assume that the way in which journalists at the press conference reported on the statement was irrelevant (see para. 122 above). With this assumption, the Senate majority disregards the multi-layered communication processes taking place in a democratic society. The Senate thereby disregards the very foundation for the process of the formation of political will, whose protection the restrictions on the Chancellor’s right to issue political statements are intended to serve.

II.

1. In its case-law, the Senate initially only imposed limitations on the government’s public relations activities during election campaigns. It did so “in order to safeguard the bottom-up process of the formation of the political will (i.e. from the people to the state organs) and to protect it against its reversal” (BVerfGE 44, 125). In proceedings involving statements by government members concerning the NPD or the AfD, the Senate developed these standards into a duty of neutrality for political statements by members of government first in the context of election campaigns (cf. BVerfGE 138, 102 <110 f. paras. 30 ff.>), then with respect to party activities (cf. BVerfGE 148, 11 <25 ff. paras. 46 ff.>) and finally finding a generally applicable duty (BVerfGE 154, 320 <336 para. 48). [...]

2. However, these standards of substantive neutrality have been (cf. the separate opinions to BVerfGE 44, 125) and still are [...] controversial, even just with respect to the government’s public relations activities, i.e. how the government presents its work to the public. I consider these standards to be flawed.

The way that the government presents itself to the public differs from public information activities that relate to specific subject matters such as health risks, welfare benefits, consumer rights or anti-democratic endeavours. The latter [...] are a specific form of administrative work and are subject to – justiciable – requirements of accuracy, objectivity and restraint.

With respect to how the government presents itself to the public, I see no indication that a duty of neutrality could serve to protect the bottom-up process through which the political will is formed. In this respect, it does not pose a problem if members of the government openly side with political parties that form this government. As noted above, citizens only expect members of the government to be neutral in limited situations, namely, when they exercise administrative functions.

Thus, the concept of separation adopted by the Senate (see paras. 76 ff. above with further references) should not be applied to distinguish between the exercise of public office and party activities, but instead, to distinguish between acts of the administration and acts of government. By contrast, the Senate sets forth requirements that, in principle, pertain to administrative acts, and then applies them to the entire way in which government members exercise their public office. In doing so, the Senate fails to recognise the very task of governing which, within the parliamentary system of government envisaged by the Basic Law, Parliament entrusts to the Federal Chancellor and the cabinet.

Such government action is not intended to be neutral, nor do citizens expect it to be. Government work is political in nature and, in a party democracy, is shaped by political parties. [...] It is precisely the appearance of neutrality of a government action that raises concerns about a potential reversal of the bottom-up process through which the political will is formed. Setting the agenda, weighing interests, selecting expertise, assessing arguments – that is, all decisions necessary for governing – are, by their very nature, decisions. These decisions are never neutral. Instead, they are based on experiences, convictions and perceptions of reality that differ greatly within society. Elections serve to reflect these differences when it comes to political decision-making. A presumed “neutrality” on the part of a government would shroud the very accountability that is desired in a party democracy [...].

Hence, there are no valid arguments that support a duty of neutrality with respect to how the government portrays its own work to the public (cf. dissenting opinion Rottmann, BVerfGE 44, 125 <181 ff.>).

3. Personal statements by members of government on specific political matters are most certainly not subject to a duty of neutrality.

If one adopts the Senate’s viewpoint that the government’s public relations work and the way it portrays itself to the public are subject to duties of neutrality, a general standard for all political statements by government members would have to be specified in terms of both form and context. Alternatively, such standard would need to be worded in such a way that the context in which a statement is made can be taken into consideration.

However, the Senate chooses a different approach by adopting the concept of separation. The Senate subjects statements made in an official government capacity to strict neutrality requirements and refers the debate with political parties to a realm “outside their official functions” (cf. BVerfGE 148, 11 <31 ff. paras. 62 ff.>). […]

With respect to election campaigns, it makes sense to differentiate between the public relations activities of the government and political campaigning. Government members should not be allowed to use government resources for election campaigns, but must run their campaigns just like other party politicians using their personal means and channels. Also, differentiating between “official” and personal statements of opinion can be justified in many other contexts. Such differentiation allows for the exercise of personal freedoms while protecting the institution with which the person is “officially” affiliated from being equated with their views or behaviours. However, neither of these two reasons apply when a government member makes a statement in which they take sides with a political party. It is especially members of the government that are held personally responsible for government activities. Likewise, the possibility to take sides serves more than just the realisation of the personal freedoms of government members.

III.

The legitimate consequences of the differentiation employed by the Senate should not be drawn where the exercise of public office by a government member is concerned, but with respect to party activities. In terms of the latter, members of government should not be allowed to make use of the specific options and means of their ministerial office. Thus, there is no need for a content-based prohibition on political statements, but for a prohibition on making use of governmental resources.

1. This corresponds to the legal protection sought in Organstreit proceedings against excessive public relations activities by the government during election campaigns (cf. BVerfGE 44, 125). This protection concerns preventing the use of government resources for party-political objectives, namely, election campaigns. Such prohibition on the use of resources serves to protect the system of political competition so that current parliamentary minorities have the possibility to become the majority in future elections (cf. BVerfGE 5, 85 <198 f.>). [...]

2. However, such prohibition is only plausible as applied to the use of financial resources. By making use of such means, political parties in government avoid expenses that they otherwise would have to meet themselves. This can indeed distort the competition of political parties. The same cannot be said about the content of public relations work used for the purposes of self-presentation. The opportunity given to a party in government to implement its electoral programme and thereby win over voters in upcoming elections is a direct consequence of the preferences expressed by the electorate in the preceding elections.

Thus, it is flawed to equate the use of resources with the use of the office’s authority. This is precisely what the Senate avoided doing in its decision on public relations activities during election campaigns. Instead, the Senate limited itself to a prohibition on the use of financial resources in its decision. Only Justice Geiger equated the use of financial resources with the use of the office’s authority in his concurring opinion (BVerfGE 44, 125 <174 f.>), which was met with strong disagreement in the dissenting opinion by Justice Rottmann (BVerfGE 44, 125 <184 f.>).

3. By abandoning this conscious restriction to financial resources and classifying the office’s authority as a government resource (BVerfGE 138, 102 <118 paras. 55 ff.>; 148, 11 <33 para. 64, 34 para. 66>; 154, 320 <339 para. 56, 340 f. paras. 59 f.>), the Senate opened the door for the principle of equal opportunities for political parties to prohibit government members not only from using government resources, but also from making political statements. This fails to serve either the democratic formation of the political will, or the realisation of the parliamentary government system.