Summary:

I.

The applicant, a longstanding member and regional chairperson of the right extremist NPD party, was a member of a sports association that had made multiple attempts to expel the applicant. In 2018, the association included the following provision in its bylaws:

“The work of the association rests on the commitment of all its members to a free democratic basic order. (…) The association firmly rejects any extremist endeavours. Membership in the association is only open to those individuals who share and commit to these values. Members of extremist organisations, regardless of political orientation, as well as members of racist and xenophobic organisations (…) such as the NPD party (…) cannot become members of this association.” 

The statute further provides for the possibility of expelling a member who acts in breach of the statute, e.g. by being a member of one of the abovementioned organisations. The applicant was expelled from the association in 2019. The applicant challenged his expulsion from the sports association before the civil courts. The Higher Regional Court rejected the appeal and held that the expulsion from the association was lawful. In particular, the Higher Regional Court found that, under the specific circumstances at hand, Article 3.3 of the Basic Law did not give rise to any equality requirements relating to relationships between private actors. Membership in a small amateur sports association is not a major determinant of participation in social life, nor does such an association enjoy a monopoly or any other position of structural superiority. Even if Article 3.3 first sentence of the Basic Law were to indirectly give rise to stricter and more far-reaching requirements compared to Article 3.1 of the Basic Law, this would not entail an absolute prohibition of differentiation between private actors. Rather, in such case, the countervailing rights would have to be reconciled. The Higher Regional Court thus did not find the general guarantee of the right to equality before the law or the prohibition of disadvantaging individuals due to their political beliefs to give rise to indirect horizontal effects that would render provisions in the bylaws that are relevant to the applicant’s expulsion void. In the case at hand, the applicant’s legally protected interest not to be expelled from the association due to his political beliefs does not take precedence over the freedom of association protected under Article 9.1 of the Basic Law. The Higher Regional Court further considered that the applicant actively pursued the NPD’s ant-constitutional aims, given his role as NPD regional chairperson.

The applicant lodged a constitutional complaint with the Federal Constitutional Court alleging, among other things, a violation of his right to equal treatment arising from Article 3.3 first sentence of the Basic Law. The applicant contended that he was being disadvantaged due to his political beliefs.

II.

The Federal Constitutional Court held that the constitutional complaint is inadmissible. 

When deciding legal matters that are fully determined under EU law, the fundamental rights of the Basic Law are not applicable as the direct standard of review; in principle, it is EU fundamental rights that are relevant. 

The applicant’s claim that he had been discriminated against due to his “wrong” political beliefs is unfounded. According to the Court, the case at hand does not require a decision regarding the scope of the prohibition of disadvantaging individuals on the basis of their political beliefs (Article 3.3 first sentence of the Basic Law) and the extent to which such prohibition binds private law actors. In any case, the conflicting rights must be reconciled. It is not apparent that the specific circumstances at hand mandate a decision in favour of the applicant. In principle, associations set the framework within which the rights of their members may operate. The fundamental right to freedom of association arising from Article 9.1 of the Basic Law generally affords associations the right to independently decide on the admission and expulsion of members. In the case at hand, an amateur sports association firmly commits to the free democratic basic order and rejects any extremist, racist and xenophobic endeavours. This is unobjectionable and in conformity with the values enshrined in the prohibitions of associations laid down in Article 9.2 of the Basic Law, the fundamental right to human dignity (Article 1.1 of the Basic Law), the prohibition of disadvantaging (Article 3.3 of the Basic Law) and the standards set out in Article 21.2 of the Basic Law concerning proceedings for the prohibition of political parties. In balancing the freedom of association against the interest of not being expelled from an association due to political beliefs, the Higher Regional Court took account of the applicant’s role as regional chairperson and, thus, his active engagement within the NPD. It has not been sufficiently demonstrated, nor is it ascertainable in any other way, that this approach chosen by the Higher Regional Court conflicts with any values enshrined in fundamental rights.