Statement by Federal Chancellor Merkel on the election of the Minister-President in the Free State of Thuringia in 2020 violated the right to equal opportunities of political[...]

Press Release No. 53/2022 of 15 June 2022

Judgment of 15 June 2022 - 2 BvE 4/20, 2 BvE 5/20

At a press conference with the South African President in Pretoria on 6 February 2020, Federal Chancellor Merkel made a statement on the election of a Minister-President in the Land Thuringia that was subsequently published on the websites of the Federal Chancellor and the Federal Government. In a judgment pronounced today, the Second Senate of the Federal Constitutional Court held that this statement and its publication violated the right of the party Alternative für Deutschland (AfD) to equal opportunities of political parties derived from Art. 21(1) first sentence of the Basic Law (Grundgesetz ‒ GG).

In February 2020, Thomas Kemmerich (FDP) was elected Minister-President of the Free State of Thuringia in the third round of voting. The election was heavily criticised in public as it was presumed that members of the Land parliamentary groups of both the AfD and the CDU had participated. On the day following the election, the Federal Chancellor - while attending an official reception with the President of South Africa - commented on the election of the Minister-President, stating that it 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". The Federal Chancellor went on to describe the election as "unforgivable" and that the result therefore had to be undone. "It was a bad day for democracy," she added.

Federal Chancellor Merkel made this statement, which conveys a negative image of the AfD (the applicant), in her official capacity and thus one-sidedly influenced the competition of political parties. This 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. Such interference is neither justified by the Federal Chancellor's mandate to ensure the Federal Government's stability and Germany's standing in the international community, nor is it a permissible measure in the context of the Federal Government's public relations activities. Moreover, by subsequently publishing the statement on the websites of the Federal Chancellor and of the Federal Government, the Federal Chancellor and the Federal Government (the respondents) made use of resources only available to them. In disseminating the negative value judgment on the applicant contained in the statement, the respondents separately violated the applicant's right to equal participation in the competition between political parties.

Justice Wallrabenstein filed a dissenting opinion.

Facts of the case:

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. When neither the candidate jointly proposed by the parliamentary groups of SPD, DIE LINKE and BÜNDNIS 90/DIE GRÜNEN nor the candidate proposed by the AfD's Land parliamentary group obtained the required absolute majority in the first two rounds of voting, the FDP parliamentary group nominated an additional candidate for the third round. If no absolute majority is secured in the first two rounds, the candidate who obtains the simple majority of votes in the third round wins the election. The candidate proposed by the FDP was elected with 45 out of 90 votes. The candidate nominated by SPD, DIE LINKE and BÜNDNIS 90/DIE GRÜNEN received 44 votes, the candidate nominated by the AfD received none; there was one abstention.

The election of the Minister-President was heavily criticised in public as it was presumed that members of the AfD parliamentary group had helped him win election.On 6 February 2020, the Federal Chancellor - who at the time was on an official visit to South Africa - commented on the election as follows while attending an official reception with the President of South Africa:

"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."

The statement was published on the websites of the Federal Chancellor and the Federal Government.

The applicant asserts that the Federal Chancellor and the Federal Government violated their duty of neutrality in party-political debate, and thus also the applicant's right to equal opportunities of political parties derived from Art. 21(1) GG.

Key considerations of the Senate:

The applications are well-founded.

A. I. Constitutional law mandates that the formation of the political will occurs in an open process. Wherever possible, equal participation of parties in political competition must therefore be ensured. This requires that state organs be neutral in the competition between political parties. 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.

II. What applies to the Federal Government in its entirety regarding its right to issue political statements also applies to its individual members. When exercising their ministerial functions, members of the government must observe the constitutionally guaranteed principle of equal opportunities of political parties in the same way as the Federal Government. This does not rule out that government members participate in the political debate outside their official functions. It must, however, be ensured that means and opportunities connected with government office and not available to their political competitors will not be used. Based on these standards, a statement by 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) if it is made using resources connected with ministerial office or recognisably referring to the government office in order to lend it special credibility or weight derived from the authority of said office.

III. In principle, these standards equally apply to the Federal Chancellor's office. The Federal Chancellor plays a vital role in the government's task of managing state affairs. It is from this task that the authority of the office and the advantages in terms of resources derive, which in turn lead to the Federal Chancellor being bound by the principle of equal opportunities and the duties of neutrality resulting therefrom. Insofar as the Federal Chancellor's right to issue political statements is wider in scope than that of federal ministers, who are limited to their respective ministry's area of competence, and encompasses the entire realm of government action, this does not mean that, in exercising these rights, the Federal Chancellor is exempt from observing the right to equal opportunities of competing political parties and hence the duty of neutrality.

IV. The principle of equal opportunities of political parties does not give rise to an absolute prohibition of differentiation. However, reasons that can justify unequal treatment and give the Federal Government the power to interfere with the principle of equal opportunities of political parties must be considered legitimate under constitutional law. Moreover, such reasons must be of equal weight to the principle of equal opportunities of political parties. In this regard, the principles of suitability and necessity for achieving legitimate purposes must also be taken into account.

1. A constitutional interest of equal weight could be the protection of the Federal Government's stability and capacity to act. The Basic Law seeks the formation of a government supported by the parliamentary majority and capable of functioning properly. It is first and foremost the task of the Federal Chancellor to ensure the Federal Government's capacity to act. The Federal Chancellor is afforded a wide margin of appreciation in determining the measures necessary to this end.

2. Safeguarding the standing and trust 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. The Basic Law binds the Federal Republic of Germany to the international community and programmatically commits German state authority to international cooperation. It is primarily incumbent on the Federal Government, and in particular the Federal Chancellor, to ensure that this constitutional duty is observed and given effect. In this context, the Basic Law grants the Federal Government and the Federal Chancellor a wide margin for autonomous decision-making in the exercise of their functions.

3. The power to maintain public relations afforded to the Federal Government and its members within the context of their government work does not, in itself, exempt them from observing the duty of neutrality. 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. However, this does not alter the fact that the Federal Government is not prevented from, and is indeed obliged to, uphold the principles and values enshrined in the Constitution. The Federal Government's duty to protect the free democratic basic order also obliges it to deal with anti-constitutional parties.

B. Based on these standards, the applications are well-founded.

I. The statement at issue here violates the applicant's right to equal opportunities of political parties derived from Art. 21(1) first sentence GG.

1. The statement was made in an official capacity. It was made 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 respondent no. I had held in her capacity as Federal Chancellor during a state visit to South Africa. No different conclusion can be drawn from the Federal Chancellor's announcement that she wished to make some preliminary remarks. Generally, it only follows from this announcement that the subsequent remarks precede the statements regarding the talks with the representatives of the Republic of South Africa. It does, however, not follow from this announcement that the statement was issued outside the exercise of official functions. The information that these preliminary remarks were made for reasons of domestic policy also does not alter the official nature of the statement. This is because the Federal Chancellor is responsible for both domestic and foreign policy. In terms of substance, it is not ascertainable from the statement that the Federal Chancellor sufficiently distanced herself from her government office. To the extent that she refers to a fundamental belief held by the CDU, it is apparent that she primarily criticised the conduct of her own party's members in the Thuringian state parliament in the context of the election of the Thuringian Minister-President. Yet this circumstance alone does not warrant the conclusion that she made this statement exclusively in her capacity as a party politician. Nor can this be inferred from the fact that the statement referred to matters which are beyond the competences held by the Federal Government or the Federal Chancellor. The question of competence is irrelevant for the distinction between official and unofficial acts. The Chancellor would have been free to make sufficiently clear that she was about to comment on the election of the Thuringian Minister-President not in her capacity as Federal Chancellor but as a party politician or private individual. She did not make use of this possibility.

2. The statement at issue here contains a negative portrayal of the applicant. The Federal Chancellor thereby one-sidedly influenced the competition of political parties.

a) In the statement, the Federal Chancellor did not merely comment on the election of the Thuringian Minister-President and the conduct of the members of the CDU parliamentary group in the state parliament. Rather, her statement also includes a general comment on how to behave towards the applicant and where to locate the applicant on the democratic spectrum. By saying that the election of the Minister-President contravened the fundamental belief that majorities are not to be obtained with 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 value judgment is reinforced by the fact that the Federal Chancellor described the election as "unforgivable" and called for its result to be undone. By saying that the election of a new Minister-President in Thuringia had been a "bad day for democracy", the Federal Chancellor further made it clear that she generally considers the applicant's participation in the formation of parliamentary majorities to be damaging for democracy, implying a negative value judgment on the applicant's ability to cooperate and form coalitions in a democratic state in general.

b) This negative value judgment 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. With this negative portrayal of the applicant ‒ a political party participating in the political competition ‒, the Federal Chancellor exceeded the substantive limits that the duty of neutrality imposes on the right to issue political statements. The Federal Chancellor sided against the applicant by excluding the applicant from the group of political parties that have the ability to cooperate and form coalitions within the democratic spectrum.

3. The interference with the applicant's right to equal opportunities is not justified.

a) It is not evident that the statement was required to ensure the Federal Government's stability and proper functioning. It is true that the Federal Chancellor is afforded a wide margin of appreciation when assessing which measures are required to ensure the Federal Government's stability and proper functioning. However, this 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. Prior to the public statement by the Chancellor, the federal chairperson of the CDU had already issued a statement to the same effect regarding the election of a new Thuringian Minister-President. The Federal Chancellor herself had discussed the election on the phone with leading representatives of the coalition parties and they had agreed to convene the coalition committee. This was in accordance with the mechanism provided for in the coalition treaty on how to address situations of crisis. It is not evident that the Federal Government's stability and proper functioning were jeopardised, regardless of the outcome of the committee meeting.

b) 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 publicly taking sides against the applicant. To the extent that the respondents assert that internationally there had been the expectation that the CDU as the largest party in government would take a stand on events in Thuringia, such expectation had already been met given the CDU chairperson's statement. There is no indication that the election of a Thuringian Minister-President was capable of undermining the standing and trust of the Federal Republic of Germany to such an extent that it could have restricted its ability to act in foreign policy matters. Reactions of foreign state organs to that effect have not been set out. In particular, this cannot be inferred from the press clippings submitted by the respondents. The Federal Chancellor's subjective assessment alone does not suffice in that respect as this would otherwise open up extensive possibilities, almost without any limits, for the Chancellor to one-sidedly intervene in the competition of political parties while using the authority of the Chancellor's office.

c) The power to inform the public and maintain public relations is also not capable of justifying the interference with the right to equal opportunities of political parties derived from Art. 21(1) first sentence GG. There is no need to determine to what extent comments on the election of a Thuringian Minister-President even fall within the scope of public relationsactivitiesof the Federal Government and its members. In any case, with her statement the Federal Chancellor violated the duty of neutrality that must generally be observed in the context of governmental public relations activities. It can also not be inferred from the statement that it was made to protect the free democratic basic order from anti-constitutional endeavours.

II. To the extent that the statement at issue here was published on the respondents' websites, the application is also well-founded.

1. The publication of the statement at issue here on the respondents' official websites qualifies as an act in an official capacity because the respondents exerted official government authority in a specific way and used official resources that were only available to them. The publication also served to further disseminate the statement and the negative value judgment concerning the applicant contained therein. The publication of the statement leads to a separate violation of the applicant's right to equal participation in the competition of political parties derived from Art. 21(1) first sentence GG.

2. The interference is not justified. The duty to authentically document government action does not provide justification in this regard. Such duty does not extend to declarations that constitute unjustified interferences with the right to equal opportunities of political parties derived from Art. 21(1) first sentence GG. Nor was the statement published merely in general anticipation of information obligations under the Freedom of Information Act or the press acts. There is no need to determine whether such information obligations exist here. In any case, such obligations would only arise once an application to this effect had been submitted and only to the extent sought in the individual case.

This decision was taken with 5:3 votes.

Dissenting opinion of Justice Wallrabenstein:

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. In conducting such an assessment, the Senate majority disregards lines of argument from the case-law of the Federal Constitutional Court. In classifying the Chancellor's statement as having been made in an official capacity, the Senate majority wants to take on an objective perspective of a mature and reasonable citizen. 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 limited neutrality from a member of government. The Senate acknowledges these facts but does not follow through on them. It is precisely because of the Chancellor's dual role that classifying the statement at issue here simply as a "statement by the Federal Chancellor" does not pose any difficulties. But it is a doubtful and unproven hypothesis that the Chancellor could rebut the presumption as to her speaking in an official capacity by sufficiently distancing herself from her public office. Instead, it would make more sense to determine whether, as an exception from the usual dual role, a member of government exclusively speaks 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 journalists at the press conference reported on the statement was irrelevant. With this assumption, the Senate majority disregards the multi-layered communication processes of a democratic society. In doing so, the Senate also disregards the very foundation for the process of the formation of political will, the protection of which the restrictions of the Chancellor's right to issue political statements is meant to serve.

II. 1. In its case-law, the Senate had 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". Gradually, the Senate has developed these standards into a general duty of neutrality for political statements by members of government.

2. However, these standards of substantive neutrality have been 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 the government presents itself to the public differs from public information activities relating to specific subject matters. The latter, even when conducted by a minister, 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. It does not pose a problem in that respect if members of the government openly side with political parties that form this government. Citizens only expect members of the government to be neutral when they exercise administrative functions.

Thus, the concept of separation adopted by the Senate should not be applied to distinguish between the exercise of public office and party activities, but 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 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 Chancellor and the cabinet.

Government work is political in nature and, in a party democracy, is shaped by political parties. It is precisely the appearance of neutrality of government action that raises concerns about the 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.

Hence, there are no valid arguments that support a duty of neutrality with respect to how the government presents itself to the public.

3. Even more so, personal statements on specific political matters by members of the government are, from the outset, not subject to a duty of neutrality.

If one adopts the Senate's viewpoint that the government's public relations activities and the way it presents 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 both in terms of format and context.

The Senate chooses a different approach by adopting the concept of separation. The Senate subjects statements made in official government capacity to narrow neutrality requirements, relegating party politics to a realm "outside their official functions".

With respect to election campaigns, it makes sense to differentiate between 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 government members make a statement in which they take sides with a political party. It is especially members of the government that are held responsible in person for government activities. Likewise, their possibility to take sides does not only serve the realisation of their personal freedoms.

III. The legitimate consequences of the differentiation that the Senate employs should not be drawn where the exercise of public office by government 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 of a political statement, but for a prohibition to make use of governmental resources.

This prohibition on the use of resources can bar the government from carrying out excessive public relations activities during election campaigns. In preventing the use of government resources for party-political objectives, such prohibition ensures political competition.

However, such a prohibition is only plausible if it concerns 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 contents of public relations activities.

Thus, it is flawed to equate the use of resources with the use of the office's authority.

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