Germany¶
The German cases show a constitution’s defence against its enemies operating through an intelligence service that belongs to the executive. A classification announced by the service carries political consequences before any court has tested it, and judicial review arrives as a restraint after the fact. The arrangement relies on the service being pointed only at genuine threats, which is a matter of judgement inside the executive rather than a feature of the law.
The clerk’s briefs¶
From the clerks, for the Patrician’s eyes
Worth a look. A government formed by the party the service classified would own the route. It could point the service at its opponents, a party on the left, a migrant association, a newsroom, announce the label before any judge has looked, and leave the targets to win a standstill the way the party did. It would also inherit its own file, and with it whatever the service knows about who reported on the party from inside.
February 2026: The court steps in¶
On 26 February 2026 the administrative court in Cologne ordered the Federal Office for the Protection of the Constitution not to classify, observe, treat or list the AfD as a “gesichert rechtsextremistische Bestrebung”, and not to announce that it does, until the main proceedings are decided at first instance, on pain of fines of up to 10,000 euro per breach. It also had to delete certain statements from its announcement of 2 May 2025. The clerks note that what the service offered voluntarily in May 2025, a court has now ordered.
May 2025: The classification suspended¶
On 2 May 2025 the Federal Office for the Protection of the Constitution classified the AfD as a “gesichert rechtsextremistische Bestrebung”, a confirmed right-wing extremist endeavour, mainly on the strength of an ethnic-descent concept of the people prevalent in the party. Within a week, in the AfD’s urgent proceedings before the administrative court in Cologne, it gave a standstill commitment: until the court decides, it treats and observes the party only as a suspected case and makes no public statements. The clerks note that the state’s intelligence service keeps a file on a party in the Bundestag, and that the file is waiting for a judge.