05.08.2022
Erika Steinbach,
The chairwoman of the Desiderius Erasmus Foundation comments on yesterday's decision by the Federal Constitutional Court:
„The Federal Constitutional Court is deliberately playing dumb. In doing so, it is contributing to doubts about democracy and the rule of law in Germany and ignoring its own rulings..“
The Federal Constitutional Court has now also rejected the second application by the AfD federal party in preliminary injunction proceedings, aimed at the overdue inclusion of state funding for the Desiderius Erasmus Foundation, which is close to the party (BVerfG, decision of 28 July 2022, 2 BvE 3/19).
The application had been pending since 17 February 2022.
The Federal Constitutional Court justified its decision on the grounds that the applicant („as in the previous application for a temporary injunction“) had not „substantiated“ its claim „that the right to equal opportunities for political parties under Article 21(1) sentence 1 of the Basic Law also includes the provisional order of payment obligations in favour of the foundations not involved in the proceedings and that the granting of the requested interim order is necessary to prevent the occurrence of a fait accompli in the sense of a final frustration of the applicable law“.
This is clearly incorrect for several reasons, both formally and materially. The Federal Constitutional Court is deliberately playing dumb.
In the present case, the AfD federal party had to and must sue on behalf of the Desiderius Erasmus Foundation, which is close to it, as only the party has standing before the Federal Constitutional Court. The court had already refused to hear the original constitutional complaint filed by our Desiderius Erasmus Foundation in 2019. Had the court simply ruled on our constitutional complaint at that time (which would have been possible at any time under Section 90 (2) sentence 2 of the Federal Constitutional Court Act (BVerfGG)), the unresolved question of whether a party can apply for payments on behalf of a foundation (which does not have standing to sue as such) would not have arisen at all.
As a result, the AfD federal party filed a motion for recusal against the two judges involved in the DES's constitutional complaint, which was rejected at the time and who are now also involved in the institutional dispute proceedings, namely Judge Maidowski and Judge Kessal-Wulf. However, the Senate rejected this motion in 2020.
The AfD's first application for interim relief, filed on 6 April 2019, was rejected not because the above-mentioned legal issue had not been substantiated sufficiently, but because applications for interim relief are allegedly „regularly“ inadmissible if the court cannot effect the corresponding legal consequence in the main proceedings (BVerfG, decision of 22 July 2020, 2 BvE 3/19, para. 38 ff.). This legal opinion of the court has since been met with widespread unanimous rejection in the commentary literature, as there is no such legal principle and it has no basis in the Basic Law or in the Federal Constitutional Court Act and is not applied by any other courts. The AfD was therefore very curious to see whether the court would stick to its controversial and arguably inaccurate legal opinion. However, the court deliberately avoids addressing this interesting legal question. Not only is the outcome of the decision wrong, but the court has also clearly missed the point from a legal perspective!
Furthermore, the significance of generous state funding for a foundation in the broader political environment of a party is crucial to the long-term success of the party and its equal opportunities in political competition. This does not need to be further „substantiated“, but follows from the fact that all other parties are providing a total of 659 million euros in federal funds to foundations close to them this year alone, while at the same time attaching great importance to ensuring that the DES receives nothing. At the same time, these foundations spread the agenda of the parties close to them throughout the country. From gender and climate to abortion. If funding for a foundation close to a party were irrelevant to the success of that party, a party would surely have found itself willing to voluntarily forego such funding.
The discrimination against the DES compared to all other parties represented in the Bundestag is therefore completely obvious, and there is simply no constitutional justification for it. For this reason alone, the Federal Constitutional Court – which has been dealing with the case for more than three years (since April 2019) – should finally have taken remedial action.
Only this would enforce the Constitutional Court's own rulings from 1966 and 1986. Accordingly, the principle of equality requires that all permanent, significant political movements in the Federal Republic of Germany be given appropriate consideration.
The task of the Federal Constitutional Court would have been to immediately put an end to any violation of equal opportunities for political movements, in accordance with its own rulings. With this decision, the court has once again refused to do so.