When a right-wing extremist political party appeals to European integration and a constitutional court takes the national perspective…A comment on the Nationaldemokratische Partei Deutschlands judgment BVerfG, 2 BvB 1/13
| Published date | 01 August 2018 |
| Author | Benedikt Reinke |
| Date | 01 August 2018 |
| DOI | 10.1177/1023263X18794403 |
| Subject Matter | Articles |
Article
When a right-wing extremist
political party appeals to
European integration and a
constitutional court takes the
national perspective ...A comment
on the Nationaldemokratische
Partei Deutschlands judgment
BVerfG, 2 BvB 1/13
Benedikt Reinke*
Abstract
With Regulation 1141/2014, the EU has inaugurated a truly transnational political party system as
well as a potential conflict between national and European governance – or so the Nationalde-
mokratische Partei Deutschlands has recently argued when faced with party ban proceedings
before the German Federal Constitutional Court. The party contended that its representation in
the European Parliament and membership in a political party at European level established
exclusive European governance and denied the competence of the Federal Constitutional Court
for national proceedings. The court, by contrast, summarily dismissed the Nationaldemokratische
Partei Deutschlands’s arguments, maintaining its own exclusive authority, and failed to engage in a
substantive legal assessment of recent developments in European party law. In this paper, I argue
that precisely such a thorough analysis of the newly emerging intertwinement between national
and European law as a consequence of Regulation 1141/2014 would have been in order. The
Nationaldemokratische Partei Deutschlands’s arguments need to be taken more seriously than the
Federal Constitutional Court allows, despite, or perhaps more accurately because, of their highly
strategic invocation of European integration: the European argument cannot rest with the
extremist party alone, who, elsewhere a most imminent opponent of the European idea, now uses
it to challenge national law.
* Dickson Poon School of Law, King’s College London, UK
Corresponding author:
BenediktReinke, Research Fellowat the Transnational LawInstitute, Dickson PoonSchool of Law, King’s CollegeLondon, UK.
E-mail: benedikt.reinke@kcl.ac.uk
Maastricht Journal of European and
Comparative Law
2018, Vol. 25(4) 388–409
ªThe Author(s) 2018
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DOI: 10.1177/1023263X18794403
maastrichtjournal.sagepub.com
MJ
MJ
Keywords
EU, militant democra cy, party ban, European C ourt of Justice, Nation aldemokratische Par tei
Deutschlands, Federal Constitutional Court, Germany, European political parties
1. Introduction
After first party ban proceedings in 2003 against the Nationaldemokratische Partei Deutsch-
lands (NPD), a right-wing extremist party, had failed on procedural grounds, the Bundesrat
(German Federal Council) filed an application for second party ban proceedings against the
NPD in 2014. On 17 January 2017, in a long-awaited judgment (ref. no. 2 BvB 1/13), the
German Federal Constitutional Court (FCC) dismissed the Bundesrat’s application. Even
though it identified the party’s agenda as hostile to the German democratic constitutional
order, it did not declare the NPD unconstitutional, based on the negligibility of its factual
political importance and its virtual inability to ever implement its political aims.
1
Although
the judgment has offered a great deal of material to those conducting legal and/or political
research into party ban proceedings, I will concentrate on a decidedly different matter: the
very specific legal issue of a potential conflict between national
2
and European competences
in the legal restriction of political parties raised by the NPD and, as I will demonstrate,
insufficiently respondedtobytheFCC’sjudgment.
The NPD had voiced almost identical reservations against the FCC’s legal competence in the
first party ban proceedings
3
and argued that, if the FCC were to ban the NPD nationally, the party
would also be prevented from participating in the elections to the European Parliament, in which
members of the NPD had (unsuccessfully) taken part in the past (1984, 1994 and 1999).
4
On this
reasoning, the NPD filed an application to the FCC in which they asked the court to stay the
ongoing party ban proceedings in accordance with (what would now be) Article 267 of the Treaty
on the Functioning of the European Union (TFEU) and to refer the following question to the
1. (DE)BVerfG, 2 BvB 1/13; an official press release in English is available at: Bundesverfassungsgericht, ‘No prohibition
of the National Democratic Party of Germany as there are no indications that it will succeed in achieving its anti-
constitutional aims’, Bundesverfassungsgericht (2017), https://www.bundesverfassungsgericht.de/SharedDocs/Press
emitteilungen/EN/2017/bvg17-004.html.
2. See for an overview of the Member States that allow for a termination procedure for political parties: L. Bardi et al.,
‘Political Parties and Political Foundations at European Level. Challenges and Opportunities’, European Parliament
Think Tank (2014), http://www.europarl.europa.eu/thinktank/en/document.html?reference¼IPOL_STU(2014)509983,
p. 35-36.
3. (DE)BVerfGE 107, 339 – Nationaldemokratische Partei Deutschlands [National Democratic Party of Germany –NPD].
4. (DE)BVerfG, 2 BvB 1-3/01, para. 10. During the 1984, 1994 and 1999 elections to the European Parliament no seat was
allocated to the NPD because only 0.8%,0.2%and 0.2%respectively of votes were cast for the NPD. At that time the
German European Elections Act required a party to receive at least 5%and later 3%of the votes in order to be allocated
any of the ‘German’ seats in the European Parliament (see: W. Lehmann, ‘The European elections: EU legislation,
national provisions and civic participation’, European Parliament Think Tank (2014), http://www.europarl.europa.eu/
thinktank/en/document.html?reference¼IPOL-AFCO_ET(2014)493047). On 26 February 2014, the German FCC
declared the respective requirement of 3%unconstitutional ((DE) BVerfG, 2 BvE 2/13). An English press release is
available at: Bundesverfassungsgericht, ‘Three-percent electoral threshold in the law governing European elections
unconstitutional under the legal and factual circumstances’, Bundesverfassungsgericht (2014), https://www.bundes
verfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2014/bvg14-014.html.
Reinke 389
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