High legal hurdles: Why it is not easy to expel a party

When parties want to part with members who have become unpopular, it is not always easy. Because party exclusion procedures have high hurdles – and drag on for a long time. For good reason.

Parties play an important role: they help shape the political will of the people. In Germany, this is determined by the Basic Law in Article 21. Your internal order must correspond to democratic principles. That is also in the constitution. It follows that party members are in principle free to express their opinions. In this way, the formation of opinions within the party should be promoted. On the other hand, parties should also remain distinguishable from one another in order to promote the formation of political will in the country.

Parties always stand for certain values ​​and convictions – such as conservatism or liberalism. A party may commit its members to these principles. The question of the exclusion of certain members always moves in this area of ​​tension: on the one hand, the permissible expression of opinion, which is also allowed within the party, and on the other hand, the question of when party members “went too far”.

Political parties law provides the framework

The Political Parties Act specifies the legal requirements for exclusion from a party: “A member can only be excluded from the party if he intentionally violates the statutes or significantly violates the principles or order of the party and thus causes serious damage.”

Only the violation of the party statutes must have been “willful”. This is not necessary if there is a violation of principles or regulations. In practice, it is not always easy to determine exactly when these criteria are met and this is often the reason for lengthy disputes.

These are carried out within the party: The competent arbitral tribunal decides on the exclusion. Such arbitral tribunals must be established by all parties at their different levels of jurisdiction. This is also determined in the party law. The decision of this arbitral tribunal can then be appealed to a higher-level arbitral tribunal. The arbitration procedure is also known as party order procedure.

Content decision often complicated

In the arbitration proceedings, the content of the statements in question or other behavior that is the reason for the intended exclusion from the party arises. The relevant committees must carefully examine: To what extent does the behavior in question actually constitute a violation of the statutes or principles or regulations of the party and has the party actually been seriously harmed as a result?

This requires a precise alignment with the respective statutes of the parties. Because they differ from one another, it is conceivable that certain behavior leads to exclusion in one party, while it would not have this serious consequence in another party.

Pluralism obliges

The overall views represented in the party must also be taken into account. “Parties are committed to pluralism. The broader a party is set up, for example as a large people’s party, the sooner it has to allow different views within the party,” says political scientist Ulrich Eith from the University of Freiburg.

So the decision as to when the limit is reached is often complicated. The former Berlin Senator for Finance Thilo Sarrazin, for example, was confronted three times with party regulation proceedings. The last of these then led to exclusion from the SPD in 2020. The background to this process was Sarrazin’s book “Hostile Takeover”. The SPD assessed Sarrazin’s statements as racist, degrading and discriminatory. The first two proceedings after the publication of the book “Germany abolishes itself” did not yet lead to exclusion from the party.

Can be checked by ordinary courts to a limited extent

Those affected can also have the decisions of the arbitral tribunals reviewed by the ordinary courts. However, they must respect party autonomy. This means that the court’s standard of review is restricted. To put it simply, it is limited to whether the measure was taken in accordance with the legal and statutory principles in a proper procedure.

The AfD politician Doris zu Sayn-Wittgenstein had success with such a lawsuit in the spring of 2021. The Berlin Regional Court decided that the exclusion of the Schleswig-Holstein state parliament members from the party had not been carried out in accordance with the statutes. The AfD federal executive board, in turn, has appealed against this ruling. This has not yet been decided.