Germany is once again putting on the table the possible illegalization of Alternative for Germany (AfD) due to its advance in the polls and the proximity of three decisive regional elections. The country has not yet initiated a formal procedure to ban the far-right party but there are various political and legal initiatives to ask the Federal Constitutional Court to study its unconstitutionality, while the coalition government and the main parties maintain opposing positions.
The discussion has gained momentum after more than 1,000 jurists signed an open letter addressed to the federal government and the members of the Bundestag. The signatories demand that the institutions activate the mechanisms provided in the Basic Law so that it is the Constitutional Court that determines whether AfD pursues goals incompatible with the democratic order.
The call comes in the midst of the campaign for the elections in Saxony-Anhalt, scheduled for September 6, and those in Berlin and Mecklenburg-Western Pomerania, which will be held on September 20. AfD leads the polls in the two eastern states and could become the most voted force with percentages close to or exceeding 40% in Saxony-Anhalt.
Germany has not yet initiated the illegalization of AfD
None of the three bodies authorized to initiate an illegalization procedure —the Bundestag, the Bundesrat, or the federal government— has submitted a new request to the Constitutional Court. The known initiatives precisely seek for one of these bodies to take that step. The final decision would not correspond to the government or the parliament, but exclusively to the Federal Constitutional Court, based in Karlsruhe.
The article 21 of the German Basic Law allows declaring unconstitutional the parties that, due to their objectives or the behavior of their members, intend to harm or eliminate the fundamental democratic and free order or endanger the existence of the Federal Republic.
It is therefore not enough for a party to defend radical positions, question certain public policies, or be monitored by intelligence services. To ban AfD it would have to be demonstrated that the party acts in a planned manner against the essential principles of German democracy and that it has a real capacity to advance towards those goals.
Take AfD before the Constitutional Court
The latest offensive comes from the Republikanischer Anwältinnen- und Anwälteverein, a German association of lawyers that has promoted an open letter supported by more than a thousand jurists.
The signatories request the Government and the Bundestag to file a lawsuit for unconstitutionality against AfD. Their argument is that there are sufficient indications for the Constitutional Court to examine the program, the actions of the leaders, and the internal evolution of the party.
The petition is supported, among other documents, by a study prepared by the civil rights defense organization Gesellschaft für Freiheitsrechte. This report, funded through private donations, concludes that a request for prohibition would have a chance of success and argues that radical sectors have imposed themselves within the party.
Its authors believe that some positions and statements of AfD could threaten principles protected by the German Constitution, especially the dignity of the human being, equality before the law, and the democratic character of the State. According to the organization, more than three million documents, references, and records were examined for the analysis.
The report is not binding and does not replace an official investigation. It constitutes a legal argument that could serve as a basis for preparing a potential request before the Constitutional Court.
SPD, Greens, and The Left press to study the prohibition
The Social Democratic Party (SPD), The Greens, and The Left are in favor of examining the legal possibilities of opening a procedure against AfD.
The Vice Chancellor and Social Democratic leader Lars Klingbeil has argued that the State must verify whether the constitutional conditions for action are met. The SPD already approved a resolution in its federal congress of 2025 in favor of preparing a potential prohibition procedure.
The Greens and The Left demand a faster action. Both parties believe that the electoral growth of AfD does not eliminate the obligation to analyze whether its activity violates the Constitution. For its supporters, the prohibition of parties constitutes one of the instruments of the so-called "militant democracy": the ability of the German democratic system to defend itself against organizations that seek to end it from within.
Its supporters also argue that the electoral popularity of a party cannot become a protection against constitutional control. AfD responds that the initiative represents an attempt to exclude a political competitor backed by millions of voters through judicial means.
The CDU and the CSU warn of the risks of the procedure
For their part, the Christian Democratic Union and its Bavarian sister party, the Christian Social Union, maintain a much more cautious position. The majority sector of conservatives rejects hastening the filing of a lawsuit without sufficient evidence to overcome the demanding filter of the Constitutional Court.
The federal Minister of the Interior, Alexander Dobrindt, has argued that the existing reports are not enough on their own to guarantee the success of the procedure. Also, prominent jurists, such as former Constitutional Court President Hans-Jürgen Papier, have warned of the difficulties in demonstrating all the requirements.
Critics of the initiative fear that a judicial failure would politically strengthen AfD, allow the party to present itself as a victim of the system, and weaken the strategy of combating it at the polls. They also question whether the prohibition addresses the social and political causes that explain its growth.
Within the CSU, however, proposals have emerged to study a more limited formula: to request the illegalization of certain regional federations of AfD considered especially radicalized.
Can only one regional federation of AfD be prohibited?
German legislation allows the Constitutional Court to limit a declaration of unconstitutionality to a legally or organizationally independent part of a party. This provision has opened the debate on a possible prohibition of federations such as that of Thuringia, led by Björn Höcke.
The measure presents difficulties. First, it would have to be demonstrated that the regional federation has sufficient autonomy from the federal organization. Then it would be necessary to prove that its activity meets the same constitutional conditions required to prohibit a complete party.
The regional governments could not directly adopt the decision either. The request would have to be submitted to the Constitutional Court by the Bundestag, the Bundesrat, or the federal government. The court could later determine whether its resolution should affect the entire AfD or only an autonomous part of its structure.
The role of German intelligence services
The Federal Office for the Protection of the Constitution classified AfD as a confirmed far-right organization, but the public application of that classification remains suspended while the courts resolve the appeal filed by the party.
The Administrative Court of Cologne still has to rule on the substance of the matter. Its resolution could have significant political influence, although it would not automatically decide the illegalization of AfD.
The classification by the intelligence services and the declaration of unconstitutionality are different procedures. The first allows for the expansion of surveillance of an organization when there are indications of extremism. The second can lead to its dissolution, the prohibition of successor organizations, and the loss of its assets.
The only body capable of declaring a party unconstitutional is the Federal Constitutional Court.
The precedent of the NPD and the high constitutional requirement
The difficulty of prohibiting a party became evident in 2017 when the Constitutional Court rejected the illegalization of the National Democratic Party of Germany (NPD), later called Die Heimat. The court concluded that the formation pursued objectives contrary to the democratic order but considered that it lacked the real capacity to implement them due to its limited political and electoral influence.
The case of AfD would be different. The party has representation in the Bundestag, presence in numerous regional parliaments, and a particularly high voting intention in the east of Germany. That strength could meet the requirement of political capacity that the NPD did not fulfill, although it would also increase the institutional and social impact of a potential prohibition.
In 2024, the Constitutional Court did exclude Die Heimat from public funding for six years. This alternative requires demonstrating the unconstitutional nature of its objectives, but not that the party has real possibilities of achieving them. For that reason, some jurists consider that withdrawing state funding from AfD could be a less extreme avenue than its illegalization.
A first attempt was archived in the Bundestag
The current debate has a recent precedent. At the end of 2024, a group of 113 deputies promoted an initiative for the Bundestag to request the Constitutional Court to declare AfD unconstitutional.
The proposal was debated in January 2025, but it was not put to a vote before the legislature ended. The file was archived and any new attempt will have to start from scratch in the current Parliament.
There is no closed deadline to submit the request nor a specifically established qualified constitutional majority to approve it in the Bundestag. However, the political significance of the procedure makes it difficult to imagine it moving forward without broad support from the democratic parties.
The regional elections accelerate the discussion about AfD
The reactivation of the debate coincides with regional elections that could alter the German political balance. AfD is favored in Saxony-Anhalt and Mecklenburg-Western Pomerania, although the rest of the major parties refuse to form coalition governments with the party.
In Saxony-Anhalt, some polls place AfD between 41% and 43%, with a wide lead over the CDU. The final distribution of seats will also depend on how many parties surpass the electoral barrier of 5%.
In Mecklenburg-Western Pomerania, AfD also appears among the main forces and some surveys attribute it around 36%. The possibility of it governing one of these states has raised pressure on the traditional parties.
This electoral proximity also fuels reservations. Opponents of the procedure argue that raising it during the campaign could benefit AfD and turn illegalization into the axis of its electoral strategy.
What would have to happen to illegalize AfD
The first step would be for the Bundestag, the Bundesrat, or the federal government to agree to submit a formal request. Next, the Constitutional Court should analyze whether the complaint is sufficiently substantiated and open the procedure.
The court would examine the party's programs, the statements of its leaders, the decisions of its internal bodies, and the conduct attributable to its members. It would also have to determine whether the unconstitutional elements represent isolated positions or truly define the general orientation of AfD.
If the Constitutional Court declared the party unconstitutional, it could order its dissolution, prohibit the creation of successor organizations, and determine the fate of its assets. Until there is a ruling, AfD retains all its rights as a political party.
For now, Germany is in a preliminary phase: there are reports, open letters, and political petitions to initiate the procedure, but there is no formal request or institutional decision to illegalize AfD. The combination of its electoral growth and the enormous legal difficulties explains why the debate divides both the government and the opposition.