Germany’s Basic Law lets its Federal Constitutional Court ban a political party outright, if the party works against the country’s free democratic order in a “militant and aggressive way.” The power sits in the constitution adopted in 1949, four years after the fall of the Nazi regime. The court has used it only twice, and both bans came in the 1950s.
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Only parliament, the Bundesrat, or the federal government may ask the court to open a ban case. An ordinary citizen or a rival party cannot bring one.
Why the court holds this power at all
The Federal Constitutional Court decides constitutional questions only, separate from Germany’s other supreme courts for civil, criminal, labour, and tax law. Sixteen justices sit across two senates, and most cases go to smaller panels of three. Half the justices are chosen by the Bundestag and half by the Bundesrat, each by a two-thirds majority, which usually forces the governing party to find votes from the opposition.
Among the court’s powers is deciding whether a political party that aggressively attacks the constitutional order must be dissolved. The request can come only from the institutions named above, never from a private citizen.
What a ban would mean for the AfD
The question has direct weight now. The Alternative für Deutschland came second in Germany’s last federal election, taking a record 152 of 630 seats with 20.8% of the vote. Some German politicians have called for the party, or its most extreme wing, to face a ban application on constitutional grounds.
A separate and narrower fight has already reached the courts. The BfV, Germany’s domestic intelligence service, classified the AfD as a “right-wing extremist” group last year. That label gives the authorities wider surveillance powers over it. The AfD challenged that label, and an administrative court in Cologne issued a temporary injunction blocking its use while it prepares a final ruling. The party’s co-leader, Alice Weidel, called the injunction “a major victory” for the AfD.
The Guardian’s Timothy Garton Ash argues that a ban is no longer the right tool, given how large the AfD’s support has grown, and that the constitution offers other levers first, such as Article 37, which lets federal authorities overrule anti-constitutional conduct by a state government. That article has never been invoked in the 77-year history of the Federal Republic.
Whichever path Berlin takes, the court has not used the ban power since the 1950s.
