take part in these discussions. However, as a mayor in an official capacity cannot invoke the fundamental right of freedom of expression, case law places strict legal limits on a mayor's powers of expression. In its ruling of 04.11.2016 - 15 A 2293/15 - the OVG Münster clarified this limited scope of a mayor's powers of expression.
The decision of the OVG Münster concerned statements made by the Lord Mayor of Düsseldorf. On the occasion of the demonstration planned in Düsseldorf by "Dügida" - an offshoot of "Pegida" from Dresden - the mayor published the following call on the city's website: "Lights out! - Düsseldorf takes a stand against intolerance and xenophobia". The Lord Mayor called on local businesses to switch off the lights along the route of the march during the "Dügida" demonstration. The mayor also called for a (peaceful) counter-demonstration.
The OVG Münster ruled that the call for the counter-demonstration was lawful, whereas the "Lights out!" action was unlawful. The fundamental authority of a mayor to make statements on political matters in the local community is based on Art. 28 para. 2 sentence 1 GG in conjunction with the provisions of the municipal code. provisions of the municipal code. The unlawfulness of the "Lights out!" campaign follows from the requirement of objectivity, but not from the requirement of neutrality.
Neutrality requirement
The public relations work of municipal officials is legally limited by the neutrality requirement. The neutrality requirement is derived from Art. 21 para. 1 sentence 1 GG and refers to the duty of public officials to remain neutral towards competing parties in order to protect equal opportunities. The proximity to the election campaign must be taken into account here. The closer this comes, the stricter the neutrality requirement becomes. However, there is no general requirement of neutrality. Rather, this must be assessed depending on the circumstances. Who makes the statement, to whom it refers and the context in which it is made play an important role(VG Berlin - 23.09.2013 - 1 K 280.12).
Some of the literature calls for the neutrality requirement to also apply to statements made by public officials to political opinion groups that are not organized as a party. However, the OVG Münster did not follow this view in the aforementioned decision of 4 November 2016. In the case of political opinion groups that - like "Dügida" - are not organized as a party, the legal limits arise solely from the requirement of objectivity and the necessary local reference.
Objectivity requirement
The requirement of objectivity demands that facts communicated are accurately reproduced and value judgments are not based on irrelevant considerations. In addition, the statements must not be disproportionate in relation to the fundamental rights of the political group with regard to the objective pursued. The status of the legal interest to be protected and the intensity of the threat to it must be weighed up according to the nature and severity of the fundamental right to freedom to be infringed.
Since the counter-demonstration called for by the Lord Mayor of Düsseldorf was to be peaceful and was not intended to create a blockade effect, the OVG Münster held that the requirement of objectivity was met when calling for the counter-demonstration. The call had remained at the level of discursive political communication. The "Lights out!" campaign, on the other hand, was to be assessed differently. The Lord Mayor had not sought an argumentative debate here and the action had not added any informational value to the political discourse. The requirement of objectivity was therefore not sufficiently observed.
Conclusion
Mayors are permitted to make critical - but not defamatory - comments about the aims and content of political groups in their municipality or city. A mayor is not a political neutral; however, the neutrality and objectivity requirements set limits to his or her powers of expression. Where the limits lie must be determined on a case-by-case basis after careful consideration of the interests involved. In view of the regularly political dimension of such legal disputes, it is advisable to have the limits of the right of expression clarified by a lawyer in advance.
Addendum from 21.11.2017
In the meantime, the Federal Administrative Court has ruled in its judgment of 13.09.2017 - BVerwG 10 C 6.16 - that not only the call "Lights out! - Düsseldorf sets an example against intolerance and xenophobia" was unlawful, but also the call to participate in a counter-demonstration. As a municipal electoral official, the Lord Mayor was in principle authorized to make public statements on local community issues within the scope of his duties. However, this authority is subject to limits. It follows from the principle of democracy that a public official may participate in the political opinion-forming process of the population, but may not direct and control it. They are also not permitted to make statements that leave the level of rational discourse or exclude representatives of other opinions.