¹ The author has provided more extensive analysis of these court rulings in German. See Kliegel, Thomas, Äuβerungsbefugnisse von Amtsträgern gegenüber politischen Parteien, in Linien der Rechtsprechung des Bundesverfassungsgerichts 413 (Scheffczyk & Wolter eds., 2016).Google Scholar

² Federal President Case, 136 BverfGE 323 (2014) [hereinafter Federal President Case].Google Scholar

³ Schwesig Case, 138 BVerfGE 102 (2014) [hereinafter Schwesig Case].Google Scholar

⁴ Wanka Case, BVerfG 2 BvQ 39/15, November 7, 2015, available at http://www.bverfg.de/SharedDocs/Entscheidungen/DE/2015/11/qs20151107_2bvq003915.html [hereinafter Wanka Case].Google Scholar

⁵ See, e.g., Kommers, Donald P., The Constitutional Jurisprudence of the Federal Republic of Germany 177 (2d ed. 1997).Google Scholar

⁶ An application to the Federal Constitutional Court may be filed if supreme federal organs, or actors that are equivalent to such organs, disagree on their respective rights and obligations under the Basic Law. This type of proceeding is necessary because the organs have no authority over each other. Organstreit proceedings make it possible for constitutional organs to judicially scrutinize each other's actions; thus, Organstreit proceedings protect political decision-making by enforcing the separation of powers.Google Scholar

⁷ Article 20 of the German Basic Law [Constitutional Principles - Right of Resistance]Google Scholar

(1) The Federal Republic of Germany is a democratic and social federal state.Google Scholar

(2) All state authority is derived from the people. It shall be exercised by the people through elections and other votes and through specific legislative, executive and judicial bodies.Google Scholar

(3) The legislature shall be bound by the constitutional order, the executive and the judiciary by law and justice.Google Scholar

(4) All Germans shall have the right to resist any person seeking to abolish this constitutional order, if no other remedy is available.Google Scholar

⁸ Public Service Case, 44 BVerfGE 125, 139 (1977).Google Scholar

⁹ Article 38 of the German Basic Law [Elections]Google Scholar

(1) Members of the German Bundestag shall be elected in general, direct, free, equal and secret elections. They shall be representatives of the whole people, not bound by orders or instructions, and responsible only to their conscience.Google Scholar

(2) Any person who has attained the age of eighteen shall be entitled to vote; any person who has attained the age of majority may be elected.Google Scholar

(3) Details shall be regulated by a federal law.Google Scholar

¹⁰ Party Finance I Case, 20 BVerfGE 56, 97 (1966).Google Scholar

¹¹ Public Service Case, 44 BVerfGE 125, 139 (1977).Google Scholar

¹² Article 21 of the German Basic Law [Political parties]Google Scholar

(1) Political parties shall participate in the formation of the political will of the people. They may be freely established. Their internal organisation must conform to democratic principles. They must publicly account for their assets and for the sources and use of their funds.Google Scholar

(2) Parties that, by reason of their aims or the behaviour of their adherents, seek to undermine or abolish the free democratic basic order or to endanger the existence of the Federal Republic of Germany shall be unconstitutional. The Federal Constitutional Court shall rule on the question of unconstitutionality.Google Scholar

(3) Details shall be regulated by federal laws.Google Scholar

¹³ Public Service Case, 44 BVERFGE 125, 139 (1977).Google Scholar

¹⁴ Id. at 143–144.Google Scholar

¹⁵ See supra note 7.Google Scholar

¹⁶ See supra note 12.Google Scholar

¹⁷ See supra note 9.Google Scholar

¹⁸ See, e.g., Verfassungsgerichtshof Rheinland-Pfalz, Neue Zeitschrift für Verwaltungsrecht Rechtsprechungs- Report 665 (2014); Thüringer Verfassungsgerichtshof, Judgment on December 3, 2014 – VerfGH 2/14 –, juris; Saarländischer Verfassungsgerichtshof, Judgment on July 8, 2014 - Lv 5/14 - BeckRs 2014, 53505; Verwaltungsgerichtshof Kassel, Court Order on November 24, 2014 - 8 A 1605/14 - BeckRS 2015, 42621; Verwaltungsgerichtshof Kassel, NEUE ZEITSCHRIFT FÜR VERWALTUNGSRECHT RECHTSPRECHUNGS-REPORT 815 (2013). See also, Kliegel, supra note 1, at 420–423.Google Scholar

¹⁹ See, e.g., Saarländischer Verfassungsgerichtshof, supra note 18. Although the court recognized the difference between the Federal President and holders of government office, it cited the judgment of the Second Senate and drew difficult comparisons.Google Scholar

²⁰ See Case, Federal President, at 324–27.Google Scholar

²¹ The facts are set out in the judgment. See Case, Federal President, at 324–27.Google Scholar

²² See supra note 6.Google Scholar

²³ See supra note 12.Google Scholar

²⁴ See supra note 9.Google Scholar

²⁵ See supra note 21.Google Scholar

²⁶ See Case, Schwesig, at 103–07.Google Scholar

²⁷ Gerlinde Sommer, Schwesig: “Ziel muss sein, dass die NPD nicht in den Landtag kommt”, Thüringische Landeszeitung, June 25, 2014, available at http://www.tlz.de/web/zgt/politik/detail/-/specific/Schwesig-Ziel-muss-sein-dass-die-NPD-nicht-in-den-Landtag-kommt-1783547207.Google Scholar

²⁸ See Sommer, supra note 27.Google Scholar

²⁹ See supra note 6.Google Scholar

³⁰ See supra note 12.Google Scholar

³¹ See Case, Wanka, at paras. 1–5.Google Scholar

³² Id. Google Scholar

³³ Id. Google Scholar

³⁴ See supra note 12.Google Scholar

³⁵ See Case, Federal President, at 330–38.Google Scholar

³⁶ Id. at 332.Google Scholar

³⁷ Id. Google Scholar

³⁸ Id. Google Scholar

³⁹ Id. at 333.Google Scholar

⁴⁰ See supra note 12.Google Scholar

⁴¹ See supra note 9.Google Scholar

⁴² Article 28 of the German Basic Law [Land constitutions — Autonomy of municipalities]Google Scholar

(1) The constitutional order in the Länder must con form to the principles of a republican, democratic and social state governed by the rule of law, within the meaning of this Basic Law. In each Land, county and municipality the people shall be represented by a body chosen in general, direct, free, equal and secret elections. In county and municipal elections, persons who possess citizenship in any member state of the European Community are also eligible to vote and to be elected in accord with European Community law. In municipalities a local assembly may take the place of an elected body.Google Scholar

(2) Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility, within the limits prescribed by the laws. Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government according to the laws. The guarantee of self-government shall extend to the bases of financial autonomy; these bases shall include the right of municipalities to a source of tax revenues based up on economic ability and the right to establish the rates at which these sources shall be taxed.Google Scholar

(3) The Federation shall guarantee that the constitutional order of the Länder conforms to the basic rights and to the provisions of paragraphs (1) and (2) of this Article.Google Scholar

⁴³ See Case, Federal President, at 333.Google Scholar

⁴⁴ Id. at 336.Google Scholar

⁴⁵ Id. Google Scholar

⁴⁶ Id. Google Scholar

⁴⁷ Id. at 336–37.Google Scholar

⁴⁸ Id. at 337.Google Scholar

⁴⁹ Id. Google Scholar

⁵⁰ Id. Google Scholar

⁵¹ Id. at 338.Google Scholar

⁵² See Case, Schwesig, at 108–24.Google Scholar

⁵³ Id., at 111–13.Google Scholar

⁵⁴ Article 1 of the German Basic Law [Human dignity — Human rights — Legally binding force of basic rights]Google Scholar

(1) Human dignity shall be inviolable. To respect and protect it shall be the duty of all state authority.Google Scholar

(2) The German people therefore acknowledge inviolable and inalienable human rights as the basis of every community, of peace and of justice in the world.Google Scholar

(3) The following basic rights shall bind the legislature, the executive and the judiciary as directly applicable law.Google Scholar

⁵⁵ See supra note 7.Google Scholar

⁵⁶ See English version of the German Penal Code under https://www.gesetze-im-internet.de/englisch_stgb/.Google Scholar

⁵⁷ See supra note 12.Google Scholar

⁵⁸ See Case, Schwesig, at 114.Google Scholar

⁵⁹ Id., at 115.Google Scholar

⁶⁰ Id.Google Scholar

⁶¹ Id. Google Scholar

⁶² Id., at 116–17.Google Scholar

⁶³ Id., at 117.Google Scholar

⁶⁴ Id., at 117–19.Google Scholar

⁶⁵ Id. at 119.Google Scholar

⁶⁶ Id., at 119–20.Google Scholar

⁶⁷ Id., at 120–21.Google Scholar

⁶⁸ See supra note 12.Google Scholar

⁶⁹ See Case, Wanka, at paras. 6–15.Google Scholar

⁷⁰ Id., at para. 9.Google Scholar

⁷¹ Id., at para. 10.Google Scholar

⁷² Article 8 of the German Basic Law [Freedom of assembly].Google Scholar

(1) All Germans shall have the right to assemble peacefully and unarmed without prior notification or permission.Google Scholar

(2) In the case of outdoor assemblies, this right may be restricted by or pursuant to a law.Google Scholar

⁷³ See Case, Wanka, at para. 12.Google Scholar

⁷⁴ See supra note 6.Google Scholar

⁷⁵ See Case, Wanka, at para. 15.Google Scholar

⁷⁶ See, e.g., Kliegel, supra note 1, at 424–37.Google Scholar

⁷⁷ This case-law of the Second Senate affects, of course, written as well as oral statements. Differently Mandelartz, Informations- und Öffentlichkeitsarbeit der Bundesregierung, Die Öffentliche Verwaltung 326, 328 (2015), who draws an unnecessary distinction at this point.Google Scholar

⁷⁸ This case-law of the Second Senate is not limited to holders of government office. All public officials with an important office and the ability to make public statements that could influence the decision of voters, are bound by the established rules. That counts, of course, for mayors if they make negative statements concerning political parties. See Verwaltungsgericht Düsseldorf, Court Order on January 9, 2015 - 1 L 54/15 -, BeckRS 2015, 40408; Oberverwaltungsgericht Münster, Court Order on January 12, 2015 - 15 B 45/15 -, BeckRS 2015, 40521); Barczak, Die parteipolitische Äuβerungsbefugnis von Amtsträgern, Neue Zeitschrift Für Verwaltungsrecht 1014, 1019 (2015). Putzer points out correctly that the constitutional situation changes when the mayor refers to non-party organizations. This is neither a question of Article 21 nor of Article 38 of the Basic Law, but might be a violation of the freedom of speech and the freedom of assembly of the affected organization. Putzer, Verfassungsrechtliche Grenzen der Äuβerungsbefugnisse staatlicher Organe und Amtsträger, Die Öffentliche Verwaltung 417, 424-5 (2015). See also Barczak, supra, at 1019.Google Scholar

⁷⁹ Putzer is critical concerning this broad margin, which “will hardly ever be violated in the constitutional reality.” See Putzer, supra note 78, at 421. Barczak disagreed and would limit the broad margin of the Federal President to statements referring to parties or organizations that identify themselves with the NSDAP. See Barczak, supra note 78, at 1020.Google Scholar

⁸⁰ See Case, Federal President, at 336. Barczak affirmed this position. See Barczak, supra note 78, at 1020. Tanneberger and Nemeczek were critical. See Tanneberger/Nemeczek, Anmerkung zu Schwesig, Neue Zeitschrift für Verwaltungsrecht 215 (2015).Google Scholar

⁸¹ See the disputable Wunsiedel Case of the First Senate of the Constitutional Court, which permits (criminal) restrictions of the freedom of speech for statements glorifying the National Socialism. Wunsiedel Case, 124 BVerfGE 300 (2009); critical also Barczak, supra note 78, at 1020 (with further references).Google Scholar

⁸² See also Barczak, supra note 78, at 1020.Google Scholar

⁸³ See Putzer, supra note 78, at 423; Barczak, supra note 78, at 1016–17.Google Scholar

⁸⁴ Barczak views this differently. See Barczak, supra note 78, at 1016-18. Mandelartz complains that the Court did not clarify whether the statement of Minister Schwesig was made within her competences as Minister for Family, Senior Citizens, Women and Youth. See Mandelartz, supra note 77, at 327. This criticism is quite surprising because no Federal Minister can intervene like this in the electoral campaign of one of the states (Länder) using the means of his or her office because of his/her competences. This would surely be the case for the Federal Minister for Family, Senior Citizens, Women and Youth. It seems obvious that the statement would have been a violation of the party's right to equal opportunities if Schwesig had used the specific authority of her office.Google Scholar

⁸⁵ See Putzer, supra note 78, at 421; Tanneberger & Nemeczek, supra note 80, at 215.Google Scholar

⁸⁶ See Putzer, supra note 78, at 422–23; Tanneberger & Nemeczek, supra note 80, at 215.Google Scholar

⁸⁷ See Tanneberger & Nemeczek, supra note 80, at 215.Google Scholar

⁸⁸ See, e g., Barczak, supra note 78, at 1017, 1020.Google Scholar

⁸⁹ See Putzer, supra note 78, at 421; Barczak, supra note 78, at 1020 (arguing for limits on the wide margin of the Federal President - too strictly - to statements referring parties or organizations that identify themselves with the NSDAP).Google Scholar

⁹⁰ See Barczak, supra note 78, at 1016. Tanneberger and Nemeczek have a different view. See Tanneberger & Nemeczek, supra note 80, at 216 (criticizing Barczak's “all-or-nothing-solution”). But the separation of the different roles as far as possible is the exact purpose of the judgment.Google Scholar

⁹¹ Schwesig Case, at 118.Google Scholar

⁹² See Putzer, supra note 78, at 423; Tanneberger & Nemeczek, supra note 80, at 216; Krüper, Anmerkung, Juristenzeitung 414, 417 (2015); Mandelartz, supra note 77, at 329.Google Scholar

⁹³ Mandelartz disagrees. See Mandelartz, supra note 77, at 329 (speaking of an artificial separation of one statement, but does not offer a practical solution).Google Scholar

⁹⁴ Barczak disagrees. See Barczak, supra note 78, at 1016. See also Putzer, supra note 78, at 423. Tanneberger & Nemeczek appear to say that the holder of government office should not be given the benefit of the doubt, which is, in fact, already the case. The reason for rejecting the application was not that Minister Schwesig has been given the benefit of the doubt but that there was no doubt about the role she used when making the statement. See Tanneberger & Nemeczek, supra note 80, at 216.Google Scholar

⁹⁵ See Krüper, supra note 92, at 417; Putzer, supra note 78, at 423. Contrary to this opinion the legal certainty for holders of government office is not a great issue because it is their decision where and when to attack other political parties in a disparaging way.Google Scholar

⁹⁶ It is important to mention that an objective debate on a political topic between politicians is not the subject-matter of the legal question discussed in this article. The statement must always in some way be subjective and evidently take one side and thereby transgress the boundaries of the usual political debate.Google Scholar

⁹⁷ This is misunderstood by Tanneberger & Nemeczek, who hold the opinion that real debate is no longer possible in Parliament. See Tanneberger & Nemeczek, supra note 80, at 216.Google Scholar

⁹⁸ Mandelartz disagrees. See Mandelartz, supra note 77, at 328–29 (combining unnecessarily the two separate events into one).Google Scholar

⁹⁹ See Barczak, supra note 78, at 1016.Google Scholar

¹⁰⁰ See supra note 12.Google Scholar

¹⁰¹ See supra note 9.Google Scholar

¹⁰² See supra note 72.Google Scholar

¹⁰³ See Case, Wanka, para. 9. See also Barczak, supra note 78, at 1019. But see Putzer, supra note 78, at 423.Google Scholar

¹⁰⁴ See Case, Wanka, para. 9.Google Scholar

¹⁰⁵ That goes for written statements as well as for oral statements. But see Mandelartz, supra note 77, at 327.Google Scholar

¹⁰⁶ See Barczak, supra note 78, at 1019 (favoring a period of three months before any election, during which time the “rule of the utmost reserve” applies for holders of government office when referring to other political parties).Google Scholar

¹⁰⁷ See supra note 12.Google Scholar

¹⁰⁸ See supra note 12.Google Scholar

¹⁰⁹ See Henke, Art. 21, in Bonner Kommentar zum Grundgesetz para. 346 (1991). See also the recent judgment of the Constitutional Court rejecting the application to prohibit the NPD BVerfG 2 BvB 1/13, January 17, 2017, para. 524, http://www.bundesverfassungsgericht.de/SharedDocs/Entscheidungen/DE/2017/01/bs20170117_2bvb000113.html [hereinafter Prohibition Case] with an English press release available at http://www.bundesverfassungsgericht.de/SharedDocs/Pressemitteilungen/EN/2017/bvg17-004.html.Google Scholar

¹¹⁰ See Prohibition case, at para. 526.Google Scholar