Case Summary and Outcome

The Administrative Court of Cologne ordered the City of Bonn to allow the German-Palestinian Women’s Association to participate in the annual Culture and Encounter Festival. The City had denied the applicant’s request for participation because of its connection to the Palestinian-led Boycott, Divestment, Sanctions (BDS) movement.  This was based on a May 2019 motion of the Bonn City Council titled “No place for the anti-Semitic BDS movement in Bonn” and a similar motion of the parliament of North-Rhine Westphalia on September 20^th, 2018. The Court found that the City’s ban violates Article 3 (1) and 5 (1) Basic Law which states, “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources.” It reasoned that the motions did not constitute legislative acts, and therefore could define the purpose for which the public facility can be used. The Court held that the German-Palestinian Women’s Association was a fitting exhibitor, as it is an intercultural association based in Bonn. The Court observed that it could not assume that all BDS supporters are anti-semitic and based on the organization’s previous participation in events it could not be assumed that the applicant or any member of the Association would disseminate antisemitic opinions, which would not be protected under Article 5 (1) Basic Law.

Facts

Since 2010 the City of Bonn, the respondent in the case at hand, has organized an annual Culture and Encounter Festival (“Vielfalt! – Bonner Kultur – und Begegnungsfest”). The applicant, the Deutsch-Palästinensische Frauenverein e.V. (German-Palestinian Women’s Association), which had already participated several times in the past, wanted to take part in the festival taking place on September 29^th, 2019.

On March 28^th, 2019, the City passed a resolution concerning a new concept for this particular festival. No. 2 (2) of the resolution stated that exhibitors should be associations and organizations with international und intercultural orientation based in Bonn or in the Rhein-Sieg area. Both the received invitation as well as past participation indicated that the City of Bonn regarded the applicant as a fitting exhibitor. Nevertheless, participation was denied because of the applicant’s connection to the BDS-movement.  The decision was based on the motion of the Bonn City Council on May 14^th, 2019 titled “No place for the anti-Semitic BDS movement in Bonn” and a similar motion of the parliament of North-Rhine Westphalia from September 20^th, 2018.

The applicant filed for an interim measure against the City’s ban on its participation.

Decision Overview

On September 13th, 2019, the Administrative Court of Cologne issued its decision instructing the City of Bonn to admit the German-Palestinian Women’s Association to the festival. It held that the City’s ban violates Article 3 (1) and 5 (1) Basic Law.

According to section 8 (2), (4) Gemeindeordnung (GO – the local bylaws) all citizens and legal entities are allowed to use public facilities – which includes the Culture and Encounter Festival.

However, this access cannot be unlimited but must operate within the framework of the existing rules which allow the City to define the purposes for which public facilities can be used. The City defined the purpose for the Festival with its new concept which was passed as a resolution on March 28^th.  The Court held that the German-Palestinian Women’s Association was a fitting exhibitor pursuant to the resolution, as it is an intercultural association based in Bonn.

Furthermore, the City based its decision on the City Council motion from May 14th 2019, which, inter alia, prohibits the support of BDS-events and the provision of premises. The Court however held that the motion does not support the City’s ban, firstly because the motion is not a legal act and therefore cannot define the purpose for which the public facility can be used. And secondly because the Festival is not a BDS-event hosted by the applicant. The Court also stated that even if the City Council motion were to define the purpose, a decision of whether someone is allowed to participate or not had to be made in accordance to Article 3 (1) Basic Law, which says that “All persons shall be equal before the law.”

A discrimination can only be justified based on a legitimate reason. The ban was based on the City’s refusal to provide a space for antisemitic actions. The Court agreed that in general this constitutes a legitimate reason. However, the City went too far because it is not justified to assume that all BDS supporters are antisemitic.

Moreover, the Court said that the ban was an infringement of the applicant’s right to freedom of expression under Article 5 (1) Basic Law, which states: “Every person shall have the right freely to express and disseminate his opinions in speech, writing and pictures and to inform himself without hindrance from generally accessible sources.” Especially in regard to its previous participation there is no room to assume that the applicant or any member of the Association would disseminate antisemitic opinions which would not be protected under Article 5 (1) Basic Law.

Lastly, the Court stated that :

“The motions of the Bonn City Council, as well as the motions of the parliament of North-Rhine Westphalia (20 September 2018) and the German Bundestag (17 May 2019), do not constitute legislative acts, but are political resolutions or expressions of political will. These motions alone cannot justify, from any legal perspective, the restriction of an existing legal right.”

It concluded that the applicant had the right to participate in accordance with section 8 (2), (4) GO and the City had to withdraw their ban.