In its ruling of August 14, 2024, - 6 A 1.19 -, the Federal Administrative Court (BVerwG) issued an interim ruling on the Federal Ministry of the Interior's ban on the association directed against the publishing company of Compact magazine. It granted Compact-Magazin GmbH's application for the suspension of immediate enforceability and thus lifted the effect of the prohibition order until the conclusion of the main proceedings. Compact-Magazin may therefore continue to be published for the time being.
The decision focused in particular on two legal questions: on the one hand, the applicability of the law on associations for the banning of press organs and, on the other hand, the material requirements for an association ban in the case of the Compact publishing company. The BVerwG only took a clear position on the first question in its decision on Compact magazine.
Is the press an association?
Since the federalism reform, the responsibility for press law in Germany lies entirely with the federal states (previously, the federal government was still able to issue so-called "framework regulations" for press law in accordance with Art. 75 para. 1 no. 2 GG old version; see Dreier/Wittreck, 3rd ed. 2015, GG Art. 70 para. 15). However, according to Art. 74 para. 1 no. 3 GG, the Federal Government has the competence to regulate the law on associations. Press products are also regularly published by commercial enterprises, which are generally subject to association law pursuant to Section 17 VereinsG and can be banned if they are directed against the constitutional order. Since the object of a ban on an association is not only the formal structure of the association, but also its activities(BVerwG, judgment of November 4, 2016 - 1 A 6/15 -, para. 37), the ban on a press company also indirectly results in a ban on the press product. The question of whether the federal government is permitted to ban press organs via the "detour" of association law or whether the press must be "association-proof" was and is therefore the subject of intense debate.
The Federal Constitutional Court (BVerfG) has not yet dealt with this question in detail, but has so far adhered to the principle of examining bans on associations primarily on the basis of freedom of association under Art. 9 para. 2 GG, even if freedom of the press and freedom of opinion are also affected. According to the BVerfG, these fundamental rights should only be taken into account within the standard of review of Art. 9 GG(BVerfG, decision of 1.02.2023, - 1 BvR 1336/20 -, para. 93). However, this case law stems from a ruling on the prohibition of the "Hells Angels", i.e. an association in which press work was not the main focus, but merely an "annex" to the other association activities.
However, the law on associations offers little scope for a detailed examination of Art. 5 para. 1 GG. The determination of a ban on an association pursuant to Art. 9 para. 2 GG, Section 3 para. 1 sentence 1 VereinsG is a binding decision with regard to which the authority has no discretion (Nomos-BR/Groh VereinsG/Groh, 2nd ed. 2021, VereinsG Section 3 marginal no. 7). The special dogmatic features of freedom of the press and considerations of proportionality can therefore only be taken into account at the level of the facts, not at the level of legal consequences. For this reason alone, the application of the law on associations is sometimes regarded as unsuitable for the prohibition of press organs (see Rhein-Fischer, Zeitungsverbot durch die Hintertür? On the Compact ban, VerfBlog, 2024/7/19).
However, the BVerwG already rejected the idea that press law is based on the law on associations in its 2020 decision to ban the association "linksunten.indimedia" (on the entire case law of the BVerwG on the banning of press companies Lukosek, Warum das Compact-Verbot auf Grundlage des Vereinsrechts ergehen konnte: A tour d'horizon through previous prohibition decisions, VerfBlog, 2024/7/22). This ban was also aimed less at banning the association structures as such, but primarily at the website linksunten.indimedia.de, which was used in left-wing extremist circles both for journalistic reports and to call for and incite violence. At the time, the Federal Administrative Court took the view that an association ban was nevertheless possible, as the subject of the regulation was not the website, but the organization behind it(BVerwG, judgement of 29.01.2020, - 6 A 1.19 -, para. 33 et seq.). The fact that freedom of the press is affected is irrelevant for the applicability of the law on associations and should only be taken into account when examining the grounds for prohibition (para. 34). The Federal Constitutional Court rejected a constitutional appeal against this as unsubstantiated, but did not comment on the application of the law on associations to press companies in its decision(BVerfG, decision of 1 February 2023, - 1 BvR 1336/20 -).
The BVerwG has now confirmed its line from the "linksunten.indimedia" ruling in the Compact decision. It therefore raises no fundamental objections to the application of association law to press companies. Clarification of the issue by the BVerfG is still pending.
The material requirements for a ban on associations
It was and is therefore decisive for the Compact proceedings whether the BVerwG considers the substantive requirements for a ban on associations to be met. These arise from Art. 9 para. 2 GG in conjunction with Art. Art. 3 para. 1 sentence 1 VereinsG. According to this, it is necessary that an association's purposes or activities contravene criminal law or are directed against the constitutional order or the idea of international understanding. According to the case law of the BVerfG, an association must also adopt a militant-aggressive stance in order to fulfill the prohibition requirement(BVerfG, decision of 1.02.2023, - 1 BvR 1336/20 -, para. 107 ff). The Ministry of the Interior argues that these requirements are met with regard to the content of Compact magazine. It propagates a nationalist concept of society and uses narratives of the "Great Exchange" and "remigration", as well as xenophobia and anti-Semitism.
The BVerwG now also saw indications of a violation of human dignity and a militantly aggressive attitude towards elementary constitutional principles in the publications of Compact magazine (BVerwG, decision of 14.08.2024 - 6 A 4.24 -, para. 33). However, this was not enough for the court to consider the constituent element of "opposing the constitutional order" to be established beyond doubt. In particular, it expressed doubts about the proportionality of the measures (para. 26).
The Federal Administrative Court attempts to comply with the proportionality requirement when examining the facts of Art. 9 para. 2 GG in conjunction with Art. 3 para. 1 sentence 1 GG. Art. 3 para. 1 sentence 1 VereinsG by requiring in its established case law that the anti-constitutional activities must be so formative that milder measures do not promise effective protection (para. 27). The BVerwG was not convinced of this. In addition to ethno-nationalist and aggressive militant content, the magazine also focuses on general topics such as "Dossier" or "Life" and contains film reviews, book reviews and portraits of people from contemporary history. Thus, from an evaluative point of view, no clear picture emerges as to whether the anti-constitutional content is really formative for the organization (para. 43).
It is noteworthy that the Federal Administrative Court continues to apply Article 9 of the Basic Law as the sole standard of review in the context of the substantive prohibition review (para. 28). Although the court emphasizes that it takes into account the values of freedom of opinion and freedom of the press and would also like to apply the principle of opinion-friendly interpretation to the examination of Art. 9 para. 2 GG (para. 31), there is no deeper examination of the dogmatics of Art. 5 para. 1 GG apart from a mere reproduction of the case law of the Federal Constitutional Court (para. 29). The content of the Compact magazine is mainly subsumed under the concepts of aggressive and militant orientation and coining, which originate from association law. A reference to the dogmatics of freedom of the press is sought in vain in the decisive statements of the Federal Administrative Court (see para. 32 et seq.; on the dogmatics of the justification test in the context of Art. 5 para. 1 GG, see Dreier GG/Kaiser, 4th ed. 2023, GG Art. 5 para. 1 para. 145 et seq.).
The court assigns particular weight to the freedom of the press only when weighing up the conflicting interests in maintaining the immediate enforcement of the prohibition order. In the light of Art. 5 para. 1 GG, the special interest of the press company is to be valued higher than the interest of the general public in the immediate enforcement of the ban (para. 47). Such a weighing of interests will, of course, no longer be relevant in the main proceedings.
Conclusion
In its urgent decision on the Compact ban, the Federal Administrative Court gives greater weight to the freedom of the press than to the interest in banning the Compact publishing house. At the same time, however, it confirms the possibility of a press ban via the law on associations. It remains to be seen whether the BVerwG will once again specify its standards in the main proceedings and whether the BVerfG will also have the opportunity to comment on the relationship between freedom of association and freedom of the press. The principles now established by the BVerwG for the time being lack an in-depth examination of this question.
Lawyer Charlotte Gaschke Jöran Jacob