Professor Volker Boehme-Neßler, a constitutional law expert at the Carl-von-Ossietzky-University in Oldenburg, has viewed the decision to make a “standstill commitment” by the Federal Agency for the Protection of the Constitution in relation to the new classification of the Alternative for Germany (AfD) as a success for the party. “From my perspective, this is a legal success for the AfD, although only provisional. Ultimately, the decision will depend on the outcome of the main case” said Boehme-Neßler to “Welt” (Friday edition).
“Until the decision, it can usually take a long time – usually much longer than a year” Boehme-Neßler explained. During this transitional period, it is important to determine what happens next. Boehme-Neßler outlined how this could work: “The Federal Agency for the Protection of the Constitution postpones the classification as ‘seriously right-wing extremist’ until the court makes a provisional decision. The provisional decision could read: Until the main case is decided, the Federal Agency for the Protection of the Constitution must suspend the classification. It could also read: Until the main case, the Federal Agency for the Protection of the Constitution can continue to implement the classification.”
The constitutional law expert added, “Politically, it is a success for the AfD. Because until the provisional decision, the classification is lifted.” As even the provisional decision of the court will not come until several months later, “the AfD has gained a lot of time. This is definitely a political success achieved through legal means.”
However, the standstill commitment does not change the content assessment of the agency, according to Cologne constitutional law professor Markus Ogorek, as told to “Redaktionsnetzwerk Deutschland” (Friday edition). “The Federal Agency for the Protection of the Constitution continues to hold its assessment of the AfD and simply postpones the public declaration of it as seriously extremist for the time being” said Ogorek to RND. “This step is not surprising and says nothing about whether the classification of the AfD was legally permissible or not.”
A “hanging decision” of the Administrative Court in Cologne could have been favorable to the AfD, but the agency now avoids this decision. “It would have been solely a matter of weighing the consequences – so: What weighs more, the interests of the BfV or the interests of the AfD?” explained Ogorek.
“If the BfV were to temporarily treat the AfD like a suspected case, it could still legally use all intelligence resources. However, the AfD would have had to bear the risk of losing many members despite a possibly unlawful classification if the hanging decision had not occurred. Against this background and after careful consideration, the BfV has decided to make a standstill commitment of its own.”
Ogorek pointed out that the Federal Agency for the Protection of the Constitution had acted in the same way in the 2021 case regarding the suspected case classification – and eventually won the case. “If AfD representatives now claim that this is a first legal success, then that is simply wrong or shows a lack of understanding of the judicial process. In fact, the outcome of the judicial review remains open” said the constitutional law expert to RND.