Case Summary and Outcome

The Administrative Court in Munich, Germany held that a refusal to hold an event in a public facility, and the City resolution that enabled that refusal, did not violate the rights to freedom of expression and assembly. After the City Council in Munich passed a resolution that excluded events that addressed or supported the Boycott, Divestment and Sanctions Movement against Israel from public facilities, an activist applied for permission to hold a discussion in a city facility about the impact of that resolution and was refused – on the basis of that resolution itself. The Court held that the powers given to municipalities to regulate the use of its facilities meant that it was legitimate for the City to pass the resolution and then refuse the application for the event, and that the resolution and the refusal therefore did not unjustifiably infringe freedom of expression and assembly.

This analysis was possible thanks to contributions by the European Legal Support Center (ELSC) and The Rights Forum.

Facts

On April 19, 2018, Klaus Ried applied to the Munich City Museum for a venue to host a discussion. The discussion was titled “Wie sehr schränkt München die Meinungsfreiheit ein? – Der Stadtratsbeschluss vom 13. Dezember 2017 und seine Folgen“ (how far does Munich restrict the right to freedom of expression? – City Council’s resolution from December 13, 2017 and its consequences). Ried noted that the discussion would be facilitated by a retired judge and would include a critical perspective on the resolution from a female artist and a perspective in support of the resolution from a member of the City Council. The discussion’s target audience was politically interested people including but not limited to members of the Pax-Christi-movement, the NGO “attac”, and the humanistic union Munich.

On April 25, 2018 the Museum rejected Ried’s application on the grounds that rental of a room for a discussion like Ried’s would violate the City Council’s resolution from December 13, 2017 – the very resolution the event was designed to discuss. No. 3(a) of this resolution states that organizations and people planning events that address or support the Palestine-led Boycott, Divestment and Sanctions (BDS) campaign in any form are excluded from renting any City location. The Museum noted that a discussion about the resolution could not be held without also talking about BDS and its themes and goals, and as the Museum is part of the City it was bound by the resolution.

On May 30, 2018, Ried filed a suit against the Museum’s refusal in the Administrative Court Munich. He argued that both the December 13, 2017 resolution and the refusal to grant him a venue for his event violated his right to freedom of expression and freedom of assembly.

Decision Overview

The central issue for the Court to determine was whether the City’s refusal of Ried’s application on the grounds that the topic of the event would violate a City resolution and that the resolution itself were both an infringement of the rights to freedom of expression and assembly.

Ried argued that the right to freedom of expression extended to protect the choice of time and place of expression and that this meant that he had a right to access a public facility for his event. Ried also maintained that the discussion did not support the BDS campaign or its goals, but that there must be an opportunity for an unprejudiced discussion about the consequences of a resolution that has far-reaching consequences. He maintained that he is not anti-Semitic and that, even though he accepts the existence of Israel as a state, he should be allowed to criticize current Israeli politics. In addition, Ried referred to past events hosted in the City’s facilities which addressed political issues including an information meeting on “doctors without borders” and a talk about the migration history from Yugoslavia.

The Court referred to article 21(1) Gemeindeordnung (GO – the local bylaws) which allows all citizens to use public facilities – which includes the Munich City Museum. However, the Court emphasized that this access cannot be granted 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 purposes of the museum to be the promotion of arts, culture, education and regional values, and the Court held that Ried’s proposed event did not fall within that purpose and the City was therefore permitted to refuse his application.

In assessing the right to freedom of assembly, the Court held that article 8(1) does protect the freedom to decide the time and place of an assembly, but that there are limitations to where and when an assembly can take place. In respect of an assembly in a public facility, it is the municipality which is granted the power to determine where and when the assembly can take place and so excluding BDS events from public facilities did not infringe article 8(1). The Court relied on article 28(2) of the Basic Law in holding that the City was permitted to regulate the use of its public facilities. Article 28(2) states: “Municipalities must be guaranteed the right to regulate all local affairs on their own responsibility within the limits prescribed by the laws. Within the limits of their functions designated by a law, associations of municipalities shall also have the right of self-government in accordance with the laws”. Accordingly, the Court held that the City was allowed to pass the resolution to exclude events in public facilities which address or support the BDS campaign, and therefore rejected Ried’s claim that the resolution violated his right to freedom of assembly.

The Court also held that the resolution did not violate the right to freedom of expression. It noted that the right protects individuals from state interference – for example, when citizens’ actions are de facto prevented, forbidden or when exercising a right is made more difficult. The Court accepted that prohibiting a certain opinion in a public space does constitute a state interference in the right to freedom of expression. However, it held that there was no state interference in the present case because the resolution does not prohibit expressing a particular opinion about BDS: the resolution prevents the expression of opinions either in favor of or against BDS. In addition, the resolution regulates only the expression of opinion on BDS in publicly accessible events: an individual remains free to express his or her personal opinion towards the BDS campaign in public facilities.

The Court therefore held that neither the resolution nor the City’s refusal of Ried’s application was unlawful, and held the City’s actions were justified under article 38.