The right-wing populist Alternative for Germany (AfD) party—which came a close second in recent federal elections—is now locked in a legal battle with the state to avoid being branded an “extremist” right-wing movement.
The controversial label was imposed by Germany’s domestic intelligence agency on May 2, to only then be put on pause amid the transition to a new power-sharing government following a legal challenge.
Here is what we know about this particular aspect of German law—forged post-war to protect against a return to fascism—and the implications for society and politics.
What Is the Legal Battle?
In post-World War II Germany, the 1949 Basic Law was adopted to prevent any return of National Socialism, and the Federal Office for the Protection of the Constitution (BfV) was established to safeguard the country’s democratic order from internal threats.After classifying the AfD as a suspected extremist movement in 2021, BfV formally announced the AfD’s designation on May 2.
The BfV argues that the party poses a threat to the country’s democratic order, and accuses the AfD of “disregarding human dignity” through “ongoing agitation” against illegal immigrants, which the party says when occurring en masse, threatens German social peace, national identity, and security.
The government agency compiled an 1,100-page report that remains undisclosed to the public.
The BfV says the AfD’s approach to ethnicity is “not compatible with the free democratic basic order,” noting the party does not consider German nationals with an immigration background from predominantly Muslim countries equal members of the German people.
After six days under the extremist label, the AfD won a reprieve on May 8 when a court granted its injunction and forced BfV to temporarily suspend use of the designation while the lawsuit proceeds.
If the AfD loses its lawsuit, the label could be reimposed.
What Does the ‘Extremist’ Label Mean?
The label means the AfD was elevated to the BfV’s highest tier of domestic intelligence monitoring.“They can be surveyed all across Germany; the entire organization. This is the sharpest sword that this domestic intelligence service has against the AfD,” political analyst at the conservative think tank MCC Brussels Richard Schenk told The Epoch Times.
However, surveillance does not automatically trigger criminal charges, as that remains the police’s purview, nor does it imply harassment, he said.
But it does carry consequences. Many banks are “really skeptical of organizations that are under surveillance,” he said, and venues or employers may shy away.
There are also career risks as civil-service applicants, teachers, police, and soldiers must disclose AfD ties.
“You are in fear of losing your job or not getting the job that you want because you are a member of the AfD. So it is putting a lot of pressure on them. It already has consequences,” he added.
How Does the Surveillance Work?
The BfV handles various threats such as counterintelligence, extremism, Islamism, and left-wing and right-wing radicalism.Legally, once the BfV flags a group, there are three stages: preliminary monitoring, heightened observation, and then full surveillance, which is the stage of monitoring that the AfD is facing.
“Whenever they identify a political group that might be a threat, they are legally obligated to disclose to a certain degree [...] that they have placed this organization or individual person under surveillance,” Schenk said.
How Is this Connected to the New Government?
Since February, the AfD has been shut out of power by a “cordon sanitaire,” a cross-party pact between the ruling centre-right Christian Democrats and their coalition partners in the center-left Social Democratic Party (SPD).On May 6, Friedrich Merz of the Christian Democrats became chancellor and the party’s Alexander Dobrindt took over as interior minister, overseeing the BfV.
Dobrindt told reporters on May 4: “I’m skeptical, because the aggressive, combative nature of the party against our democracy must be a defining characteristic. The Constitutional Court was right to set high hurdles for banning a party. [I am] convinced that the AfD does not need to be banned; it needs to be governed away, and we need to talk about the issues that have made the AfD so big.”
Schenk said while the Christian Democrats takes a more pragmatic view in the hope of bringing back AfD votes back into their fold, he said that Germany’s mainstream political left, also with the Social Democrats, see any kind of compromise on policies with the AfD and their voters as kind of “heresy.”
Merz’s thin coalition is fragile and Schenk said that a nuclear option could be used to bypass the chancellor and implement an AfD ban.
“So they could go through the state governments, which have the votes in the upper house, and use those votes to initiate a party ban this way, to circumvent the responsibility of the federal government through this,” he added.
What Is the AfD?
Originally a protest movement, the AfD surged to dominance last September in Thuringia and Saxony, winning one-third of the vote in both states, emerging as the dominant political force in eastern Germany, which was behind the Soviet Iron curtain until 1989.It also came second in the national elections in February on staunch conservative positions, which were endorsed by social media platform X owner and former Democrat Elon Musk.
Its policies include strong support for traditional marriage between a man and woman and family life, the preservation of national independence in the face of the European Union’s increasing power, German culture in the face of “European integration” and Islamization, and border security including the expulsion of illegal immigrants.
Its Young Alternative Thuringia was also classified as “right-wing extremist” in March 2024. A German court ruled in January this year that AfD Saxony can also be designated as a right extremist group by authorities.
AfD joint leaders Tino Chrupalla and Alice Weidel have repeatedly denied that the party is extremist.
Could AfD be Banned?
Under Article 21(2) of the Basic Law, the Federal Constitutional Court has to date outlawed only two parties: the Sozialistische Reichspartei (Socialist Reich Party, SRP), a neo-Nazi-style party banned in 1952; and the Kommunistische Partei Deutschlands (Communist Party of Germany, KPD), banned in 1956.In the noughts, there were two major attempts to outlaw the extreme-right, ultranationalist party the National Democratic Party (NDP) of Germany. However, that was shot down by the Constitutional Court in 2017.
“The NPD pursues anti-constitutional goals but at the moment, there is an insufficient weight of evidence to make it appear possible that their behavior will result in success,” declared the court’s top judge at the time.
Political scientist Werner J. Patzelt, visiting professor of research at MCC Brussels, told The Epoch Times the bar for banning a party is high.
He said that even those who argue against certain constitutional principles, such as calling for a monarchy, do not qualify as extremist parties.
And if a party is simply “too insignificant to present a concrete danger for the existence of the liberal order of the state itself,” then proportionality principles prevent a ban.
When a ban does occur, such parties are forbidden and dissolved, with their property expropriated. “It is unlawful to entertain a follow-up organization to such a political party,” Patzelt said.
Patzelt warned that banning the AfD would not erase their underlying grievances, often tied to, but not cemented to, working class voters.
“Even if banning the AfD would be successful, the problems, nor mindsets, nor the convictions, nor the emotions of those Germans would disappear,” he said.
James Baresel and Guy Birchall contributed to this report.
