Federal Constitutional Court hears case on Bavarian Police Tasks Act

The lawsuits had already been filed in 2018 by members of the Bundestag from the FDP, The Left, and Alliance 90/The Greens. The parliamentary groups fear that the PAG unilaterally shifts the balance between freedom and security. How exactly freedom and security are to be balanced is being heard by the Federal Constitutional Court over two days, according to the broadcaster. A second day of hearings has been scheduled for the following day.

Background: From 2016 to 2026

In substance, the proceedings are directed against the adoption of the concept of imminent danger from a 2016 ruling by the Federal Constitutional Court. At that time, the court had authorized the Federal Criminal Police Office (BKA) to surveil suspected terrorists at an early stage — for instance, when someone enters Germany from a terrorist training camp. Bavaria subsequently incorporated the concept of imminent danger as a basis for police intervention in its police law. In Bavaria, the police may now also tap phone calls and search computers even when the matter does not involve terrorism but rather generally important legal interests such as life and health. In addition, individuals may be taken into custody for up to two months if it is to be expected that they will commit certain administrative offenses or criminal acts.

When the law was passed, critics dubbed it the „härteste Polizeigesetz seit 1945." Around 30,000 people took to the streets in Bavaria in 2018 to protest the plan. Among the critics is Johannes König from Munich, who belongs to the noPAG alliance formed to oppose the police law. König is politically active, a member of a political party, and regularly attends rallies and demonstrations. He said: „Durch das Polizeiaufgabengesetz hat die Polizei Bayern Befugnisse erhalten, wie sie normalerweise nur Geheimdienste haben." Looking back at the time between the first lawsuit and the hearing, he stressed: „Das war 2018, jetzt ist 2026. Das zeigt auch: Wenn man diesen Weg zum Bundesverfassungsgericht geht, dann braucht man auch einen langen Atem."

Positions: Critics and supporters

The Bavarian state government, by contrast, regards the law as necessary in order to be able to respond to new threats. Bavaria's Interior Minister Joachim Herrmann says he is going into the hearing with confidence. He argued: „Um die Bevölkerung effektiv schützen zu können, brauche es ein Polizeirecht, das den Herausforderungen der Zeit gewachsen sei." The state government also defends the PAG with reference to concrete cases: Bavaria has already taken action against so-called climate glue protesters, for example, and the Bavarian police are permitted to use, among other things, Panzerfaust anti-tank weapons and hand grenades.

Since 2018, the PAG has been amended several times and certain provisions have been clarified or softened, but the core of the law has remained intact. The Bavarian Constitutional Court has likewise upheld imminent danger as a basis for intervention in principle, though with several limitations. Against this backdrop, the Karlsruhe judges now have to decide whether the Bavarian provisions are compatible with the Basic Law.

Outlook: Ruling in a few months

Werdermann fears that the law could deter people from exercising their fundamental rights and from engaging politically or joining a football fan group. König, too — as a politically active person who belongs to a party and regularly attends rallies — expects that the law will facilitate surveillance of people who hold politically inconvenient positions. A ruling is expected in a few months.

The decision thus comes in a politically charged environment: while some see the PAG as a long-overdue adaptation to new security challenges, others warn of a creeping erosion of civil liberties. The Karlsruhe hearing is therefore regarded as a litmus test for how much power of intervention the police in a constitutional state may be granted even before a concrete danger materializes.