Regional German Constitutional Court Rules Anti-BDS Motion Infringes of Fundamental Rights

On 22 September 2020, the Constitutional Court of the State of North-Rhine Westphalia (NRW) delivered its final judgement in the complaint against the anti-BDS motion of the NRW State ruling that it may infringe constitutional rights.

Germany was the first European country outlawing the call to boycott Israel and the grassroots Boycott, Divestment and Sanctions (BDS) movement at both national and federal level (Landers). On 20 September 2018, the Parliament of State of NRW passed a non-legally binding motion that designates the BDS as antisemitic. As a result, the City Council of Bonn, adopted a similar motion, on 14 May 2019, equating BDS to a form of antisemitism and inviting all municipal institutions not to support the movement or its affiliated groups.

This motion had immediate consequences for German-Palestinian organisations and Palestinian rights defenders. Due to the absence of case law on this matter and the ambiguities regarding a legal challenge for a soft law instrument, organisations – assisted by Berlin-based Attorney Ahmed Abed and ELSC – filed a complaint against the Parliamentary motion before the Constitutional Court of the NRW State on 20 September 2019.

While the Constitutional Judges declared the complaint inadmissible on procedural grounds, they recognized the complainants’ claims under the law and stressed the correct procedural steps to follow. Notably, the Court stated that:

1. The Parliamentary motion is suitable for judicial review notwithstanding its non-legally binding nature;
2. The complainants are “largely affected by the motion in their fundamental rights” and, thus, they are “entitled to file complaints against the Parliamentary motion” (see judgment pp. 5-8);
3. The motion may infringe the complainants’ constitutional right to freedom of association (see judgment pp. 9-11).

By emphasising the fact that this motion causes immediate defamatory consequences for the complainants, and thus infringes their fundamental rights, the NRW’s Highest Court firmly refused the idea that the BDS campaign is antisemitic in itself.

The Court further shed light on the legal consequences that can be imposed on State institutions if they conflate criticism towards Israel with antisemitism, even if doing so using soft-law mechanisms. From this, the Court established a precedent in protecting the fundamental rights of the groups supporting BDS in the NWR State, particularly if public authorities attempt to unlawfully restrict their rights.

Accordingly, the ELSC believes that this decision sets an important precedent as a result of successful strategic litigation. This landmark judgment could have significant deterrent effects on institutions which unlawfully target the BDS campaign as antisemitic in itself. It represents a win for BDS groups in terms of state institutions recognizing their fundamental rights to freedom of expression and assembly.

For a comprehensive overview of the case as well as its significance, please read our Executive Summary. 

Read about the Administrative Complaint before the Administrative Court of Berlin against the Bundestag anti-BDS motion brought by BT3P campaigners, lawyer Ahmed Abed and the ELSC.