The long way to a ban
The legal way to a ban on the AfD is long and largely without precedent. In order to avoid repeating Nazi rule, the political system of Germany is based on the controversial democracy, which enables the state to defend itself against internal threats to its democratic principles and the constitutional order. This can also include prohibition policy against political parties.
In order to issue a ban, two criteria from the Federal Constitutional Court must be fulfilled: First, the party in question demonstrably has to work against the free, democratic basic order, which requires an "active aggressive attitude". Second, the party must enjoy sufficient approval to present a real threat to democracy - a criterion introduced in 2017 that is known as "potentiality".
challenges in a ban
Partners that meet the first criterion, but not the second, can be excluded from public campaign financing, but can continue to do other activities. Till Holterhus, professor of constitutional law at the Leuphana University of Lüneburg, said: "It is a widespread misunderstanding in Germany that the AfD cannot be banned because it is too great. The opposite is that it shows that it fulfills the criterion of 'potentiality'."
In order to initiate the process of a party ban, a formal application must be made to the Federal Constitutional Court. This can only be done by the Federal Government, the Bundestag or the Federal Council. The court then decides whether it initiates the procedure or rejects the application as unfounded.
consequences of a ban on the AfD
there is a ban, the party would be dissolved and excluded by all political activities. It would also be prohibited from founding replacement organizations. At least two thirds of the judges have to agree to submit the explanation. In practical terms, this would mean that the current AfD MPs would automatically lose their mandates at regional, federal and state level.
of the 152 seats that the AfD currently has in the Bundestag are 42 direct mandates. These 42 constituencies would have to vote again to determine new candidates from other parties. The other 110 AfD seats, which are awarded via a party system, remained empty until the next election. Likewise, the AfD's seats remained vacant in the European Parliament.
In two cases, the Federal Constitutional Court has banned parties since its foundation: the Socialist Reich Party (SRP), the successor to the NSDAP, was banned in 1952, and four years later the Communist Party followed in Germany (KPD).
fears before radicalization
The increasing influence of the AfD has
Nevertheless, German legislators are disadvantageous to deal with the AfD. Some fear that a ban could backfire and strengthen support for the right movement. Lars Klingbeil, Co-Chairman of the SPD, made it clear that the efforts to ban should begin. But the CDU, which leads the coalition government in Germany, hesitated.
Federal Minister of the Interior Alexander Dobrindt warned that the decisions at the SPD party conference are not yet a mandate for him. Merz himself was skeptical about a ban on what the AfD means: its support could continue to increase with a ban, which increases the probability of a "martyr effect".
While the legal procedures may be able to drag on for months or years, they could further strengthen the platform of the AfD and weld the roof demands of populists in Europe.
