They are characterized, on the one hand, by their permanence and, on the other, usually by a local connection to the respective issue being addressed. The protest can last for several days or even years. It therefore makes sense for protesters to combine their protest with infrastructural facilities (catering, accommodation and sanitary facilities).
In its ruling of 24.05.2022 (case no. 6 C 9.20), the Federal Administrative Court deals with the interpretation of the concept of assembly within the meaning of Article 8 of the Basic Law. It had to decide whether protest camps, in particular their infrastructural facilities, fall within the scope of protection of Article 8 of the Basic Law at all. Such an assessment of possible cases has not yet been clarified by the highest court.
In principle, an assembly is essentially a local gathering of several people for a communal discussion or demonstration aimed at participating in the formation of public opinion.
The character of the protest camp as a permanent event is difficult to include under this definition of an assembly at first glance. However, Article 8 of the Basic Law not only gives rise to the fundamental right to "assemble", but also the right of the holder of the fundamental right to freely determine the place and time of the assembly. A permanent event can therefore also be classified as an assembly within the meaning of Article 8 of the Basic Law. The duration must be taken into account at the level of proportionality. This can also protect the rights of third parties: The rights of third parties and their interests gain greater weight in the balancing process the longer a protest camp is likely to last. In this context, the BVerwG therefore works with a "je-desto" formula. According to the BVerwG, there is no need to apply the concept of an assembly. In other words: A protest camp can still be an assembly even after a longer period of time; however, this does not change the fact that the camp can become unlawful the longer it lasts.
In addition, however, it must be asked whether the chosen type of event as a protest camp, including the infrastructural facilities, can still be an expression of public opinion. The BVerwG affirms this in any case if the facilities "have a substantive connection to the expression of opinion intended by the camp". Furthermore, an infrastructural facility is still an expression of the formation of public opinion (and is therefore subject to freedom of assembly) "if it is logistically necessary for the specific camp and is spatially attributable to it."
The BVerwG thus extends the concept of assembly so that, in case of doubt, protest camps including their infrastructural facilities fall under the concept of assembly.
Elouisa Harms Dr. Fiete Kalscheuer