[Domestic Policy] The political castling in Germany in 2019 2019-03-09

The Coming Coalition
The EU Elections
The Voting Age
The Useful Quota
The Useless Quota
The Test-Case Case
The Court Verdict
The Consequences
Conclusion

2019 will be an election year for Germany with particular weight. There will be four state elections and elections for the European Parliament on May 26, 2019. On May 26, in Bremen, on September 1, in Brandenburg and on October 27, in Saxony and Thuringia. And according to the polls, the AfD will at least have great success or even be in government in Brandenburg, Saxony and Thuringia. [1] [2]

And an extensive campaign is already under way against the expected election results. It started with the fact that the Federal Office for the Protection of the Constitution/domestic intelligence agency (Bundesamt für Verfassungsschutz) classified the AfD publicly as a test case and declared the youth organization of the Junge Alternative as well as the sub-organization Der Flüger (The Wing) as suspected cases. With this they not only interfered with the equal opportunities of the parties but also admitted that according to the current state of knowledge the conditions for the observation of the AfD are not met. [3] [4]

The Coming Coalition

In addition the grand coalition of the Federal Government shows more and more cracks and discrepancies. And after Annegret Kramp-Karrenbauer was elected Federal Chairwomen of the CDU she is already in talks with the Greens. This is particularly interesting because the Greens have overtaken the previous coalition partner SPD in the polls. [5]

In a joint interview with Katrin Göring-Eckardt (The Greens) both regret the failed coalition negotiations after the federal election in 2017 between the CDU, the Greens and the FDP and emphasized their similarities and their good understanding. So a new coalition for the federal government is in the works. The only question is whether it comes to too early federal elections. [6] [7]

The EU Elections

For a long time the EU Parliament was considered a final repository for certain politicians. Günther Oettinger (CDU) has called Chinese Schlitzaugen (slits eyes: derogatory term) in 2016 while being Commissioner for the Digital Society and Economy and Jean-Claude Juncker's relationship with alcohol is well known. However the CDU has started to tidy up its list of candidates. Her most famous victim so far is the long-time MEP Elmar Brok, who will no longer stand for election. And because of the constant dispute over the distribution of refugees it was decided that the comprehensive EU asylum reform previously planned for May will no longer be passed. [8] [9] [10] [11]

The Voting Age

Meanwhile the Federal Minister of Justice Katarina Barley (SPD) praises the "Friday is for Future" protesters. The fact that young people take to the streets during their school time shows that young people are politically involved. Barley (SPD) thus pleads for this to allow the right to vote from 16 years instead of 18 years. [12] [13] [14]

The Federal Minister of Justice Barley (SPD) does not have the public opinion on her side with her proposal. 11.2 % agree with the proposal and 10.2 % tend to agree while 58.0 % disagree with the proposal and 17.4 % tend to disagree with it while only 3.2 % are undecided. The Federal Minister of Justice Barley (SPD) however has the electoral votes on their side with their proposal. While the approval rate for the SPD and the Greens increases with decreasing age groups the approval rate for the AfD decreases with decreasing age groups. So the SPD and the Greens would gain percentages while the AfD would lose percentages. [15] [16] [17] [18] [19]

The Useful Quota

During the same time parity laws are being worked on extensively for the parliaments. The first parity law was passed in the state of Brandenburg which requires that parties in the future should set up as many women and men as candidates for parliamentary elections. CDU and AfD consider the law unconstitutional and voted against it. [20] [21] [22]

And Claudia Roth (The Greens) and the chairman of the SPD parliamentary group Andrea Nahles now want a parity law for the Bundestag. For the SPD is certain: [23] [24]

Unser Ziel ist die Parität. Denn die Hälfte der Welt gehört den Frauen – und damit auch die Hälfte der Parlamentssitze.

Our goal is parity. Because half of the world belongs to women - and thus half of the seats in parliament.
Andrea Nahles (SPD) [24]

The idea of a parity law is fundamentally questionable. Since it already interferes in the first approximation with the electoral law principles of Article 38 of the Basic Law. [25] [26]

Grundgesetz für die Bundesrepublik Deutschland Art 38
(1) Die Abgeordneten des Deutschen Bundestages werden in allgemeiner, unmittelbarer, freier, gleicher und geheimer Wahl gewählt. Sie sind Vertreter des ganzen Volkes, an Aufträge und Weisungen nicht gebunden und nur ihrem Gewissen unterworfen. ...

Basic Law for the Federal Republic of Germany Art. 38
(1) The members of the German Bundestag are elected in general, direct, free, equal and secret elections. They are representatives of all people, not bound by orders and instructions and only subject to their conscience. ... [26]

In 2018 the AfD commissioned a report from the Parliamentary Advisory Service about initiative of the Greens party. And this classifies the project as incompatible with the Basic Law. According to this a parity law is incompatible and prohibits the discrimination on basis of ones sex. Moreover it violates the electoral principles of freedom and equality of choice and the principle of democracy. And it is incompatible with the constitutional status of the political parties since the freedom of establishment is restricted. Thus while a parity law is not compatible with the Basic Law it nevertheless does play into the hands of the supporting parties. Although the SPD and the Greens have a proportion of women of about 30 % and 40 % the AfD has only 16 % and with that the lowest proportion of women. [27] [28,S.8] [28,S.41] [28,S.56] [29]

The Useless Quota

Faced with such measures, the question arises why then there is not a quota for migrants. Such a quota is nowhere mentioned. A possible reason for this could be that the AfD does not occupy the last place here. In an evaluation of names which are typical for migrants and then compared with their own biographical information, interviews and media reports or checked by direct inquiries, the AfD reaches 12.6 %.

CDU/CSU	32,9 %
SPD	20,5 %
AfD	12,6 %
FDP	10,7 %
Linke	9,2 %
Grüne	8,9 %

[30]

The Test-Case Case

The domestic intelligence agency (Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution) has announced on January 15, 2019 that the AfD will be considered as a whole party as a test case. On 12 February 2019 the scientific service of the Bundestag then announced that the publication of the classification interferse with the equal opportunities of the parties. Although The domestic intelligence agency (Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution) may observe the object in question on the basis of open sources, publication of the classification as a test case is not for general public. [31] [32] [33]

Bei Prüffällen ist – bis zum Abschluss der Prüfung – unklar, ob „tatsächliche Anhaltspunkte“ für verfassungsfeindliche Bestrebungen vorliegen (§ 4 Abs. 1 Satz 3 BVerfSchG). Bei Verdachtsfällen hat sich bestätigt, dass „tatsächliche Anhaltspunkte“ vorliegen. In diesem Fall kann das BfV das betreffende Objekt auf Grundlage offener Quellen beobachten. Sind die tatsächlichen Anhaltspunkte „hinreichend gewichtig“, kann das BfV darüber hinaus die Öffentlichkeit informieren. Insgesamt spricht daher viel dagegen, dass § 16 BVerfSchG eine ausreichende gesetzliche Grundlage dafür bietet, die Öffentlichkeit über „Prüffälle“ zu informieren.

For test cases, it is unclear until the end of the test whether "factual indications" exist for anti-constitutional endeavors (§ 4 (1) sentence 3 BVerfSchG). In cases of suspicion, it has been confirmed that there are "factual indications". In this case, the BfV (Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution) can observe the object in question based on open sources. If the actual evidence is "sufficiently important", the BfV (Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution) can also inform the public. Overall, therefore, much speaks against the fact that § 16 BVerfSchG provides a sufficient legal basis for informing the public about "test cases". [33,S.5]

The Court Verdict

The AfD has then issued an urgent application against the domestic intelligence agency (Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution). And the Administrative Court of Cologne then prohibited the domestic intelligence agency (Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution) from calling the AfD a test case. [34] [35] [36] [37]

Der Eingriff in die Chancengleichheit der Parteien lässt sich nur durch ein Verfassungsgut rechtfertigen. Fraglich ist, welchem Verfassungsgut die Einstufung als „Prüffall“ dient. ... [33,S.7]

The interference in the equal opportunities of the parties can only be justified by a constitutional good. It is questionable which constitutional material serves the classification as a "test case". ...

Bei der Einstufung als „Prüffall“ geht es hingegen nicht um allgemeine Öffentlichkeitsarbeit. ... Allerdings geht es bei allgemeiner Öffentlichkeitsarbeit darum, den Bürger über Rechtsgrundlagen und die grundsätzliche Arbeitsweise der Behörden zu informieren. Die Einstufung einer konkreten Partei als Prüffall geht darüber deutlich hinaus. [33,S.8]

By contrast, classification as a "test case" is not about general public relations. ... However general public relations are about informing the citizen about legal bases and the basic functioning of the authorities. The classification of a specific party as a test case goes beyond this clearly.

Dabei ist der Grundsatz der Verhältnismäßigkeit zu wahren. Der Eingriff muss einem legitimen Ziel dienen, geeignet und erforderlich sein, und das angestrebte Ziel darf nicht außer Verhältnis zum Eingriff stehen.

The principle of proportionality must be respected. The intervention must serve a legitimate aim, be appropriate and necessary, and the objective pursued must not be disproportionate to the intervention. [33,S.8]

The Consequences

Shortly thereafter the Federal Ministry of the Interior has announced that it will examine what consequences a membership in a radical organization may have for civil servants. Federal Interior Minister Horst Seehofer (CSU) promised that this decision would apply equally to right- and left-wing radicals and has nothing to do with the classification of the AfD as a test case. But the timing of the two decisions couldn't fit together better to keep civil servants and with them the appropriate competence off the AfD. [38] [39] [40] [41] [42]

Although civil servants are obliged to self-restrain about political affairs, they are allowed to join parties. The the domestic intelligence agency (Bundesamt für Verfassungsschutz/Federal Office for the Protection of the Constitution) which is subordinate to the Federal Ministry of the Interior has even gone one step further. In a letter the more than 3,000 employees were asked to report any membership in the AfD to the security department. In case of conflicts of interest offers of a transfer to other areas of the house are offered. However it is questionable why such treatment only applies for the AfD. [43] [44] [45]

Conclusion

Einfache Standards

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