Narrow, enlarged or wide notion of assembly

36 the side of the authorities’.¹²¹ Had the specific measure been warranted, then freedom of assembly (instead or alongside freedom of expression) would be applicable, which would allow for imposition of the notification requirement.¹²² By requiring advance notice for the 13-minute 2 person performance, however, „[t]he national authorities’ approach to the concept of assembly does not correspond to the rationale of the notification rule.’¹²³ The rationale of the notification rule is effective coordination and facilitation of the assembly, and prevention of public disorder or protection of the rights of others. The lack of these specific concerns rendered the short 2-person performance under art 10 instead of art 11, confirming the fall-back nature of art 10 (or the lex specialis status of art 11) as it was developed earlier, and implying that for the assembly law to kick in, some additional, specific concerns are required. In this regard, the freedom of assembly is considered freedom of expression discounted by the mentioned police powers, a kind of

‘freedom of expression minus’.

In sum, it appears that the ECtHR (i) is willing to recognise the expressive potential of the ‘modalities’ of an assembly, (ii) but it still might allow heavier or different restrictions on assemblies than on speech, if those restrictions correspond to the additional externalities of assemblies.

37 not the right of the people, but of the individual German citizen. In other respects, however, the German debate employs similar terms to what the French lawyers are arguing. Literature and jurisprudence agree that the accidental, passing gathering of people is not an assembly protected by the constitution, similarly to France and the other countries where the issue is less explicit. Thus, there should be some common goal which connects the participants together, and the goal should also be actively common, not that of the theatre-goers. What that goal might be, however, is heavily debated, and even the GFCC seems to change sides on the issue. According to the ‘narrow’ notion of assembly, the goal must be about collective formation and expression of opinion in public matters.¹²⁴ The ‘enlarged’ notion of assembly includes not only communication about public matters,¹²⁵ but private ones as well, while the ‘wide’ notion¹²⁶ dispenses with the goal of collective formation and expression of opinion or will, ie the goal is irrelevant as long as there is an inner connection among the participants who strive to achieve a common goal, be what it is.

The implications of the different notions are significant. In the first case, freedom of assembly only covers political assemblies,¹²⁷ ie in a sense is reduced to a sort of political right. Proponents of this narrow understanding argue with historical interpretation, which, however, seems to have only a rather weak ground. It has been shown that historical documents (notably the 1848 constitution of Paulskirche, the Prussian constitution of 31 January 1850, or even the Bavarian statute of 26 February, 1850) have not typically limited freedom of assembly to questions of political or public

124 Eg Wolfgang Hoffmann-Riem, ‘Kommentar zu art 8’ in Kommentar zum Grundgesetz für die Bundesrepublik (AK-GG) (Erhard Denninger, Wolfgang Hoffmann-Riem, Hans-Peter Schneider,

& Ekkehard Stein eds., Neuwied, Hermann Luchterhand Verlag, 2001), Rn. 15 ffff

125 Philip Kunig, ‘Kommentar zu art 8’ in Grundgesetz-Kommentar I. Ingo von Münch & Philip Kunig eds., 5th ed. (München, Beck, 2000).

126 Roman Herzog, ‘Kommentar zu art 8’ in Maunz-Dürig Grundgesetz, Roman Herzog, Theodor Maunz, Günter Dürig eds. (München, Beck, 2005), Wolfram Höfling, ‘Kommentar zu art 8’ in GG –Grundgesetz Kommentar, ed. Michael Sachs, 5th ed. (München, Beck, 2009), Helmuth Schulze-Fielitz, ‘Kommentar zu art 8 'in Grundgesetz. Kommentar Vol. I, Horst Dreier ed, 2nd ed.,(Tübingen, Mohr Siebeck, 2004).

127 Alfred Dietel, Kurt Gintzel & Michael Kniesel, Versammlungsgesetz,15th edn, (Köln, Carl Heymanns, 2008) 35, Rn. 5.

38 matters,¹²⁸ though later courts started to interpret ‘assembly’ in a narrow way, including only political assemblies.

In the second case, ie when an assembly has to have a goal of collective formation and expression of opinion or will on public or private matters, the value attached to freedom of assembly is the value of communicative freedom as a social value.

It is only in the last case, applying a wide notion of assembly, that individual personality as a value comes to the fore, and where not only expression, but also any kind of (common) activity is protected. Therefore, it is only in this last instance that the assembly is protected because of the potential for ‘personality development’ of the participants. Here German literature, and, partly, the Court stress that at the assembly the person unfolds her personality in the group, the assembly is ‘personality unfolding in group form’¹²⁹ whereby the element of expression might be incidental, but not the rationale for the constitutional protection.

Recently, a partly similar, but in my view also importantly different notion of assembly has been put forward in the later editions of the Maunz-Dürig commentary by Depenheuer. He argues that freedom of assembly protects the act of assembling for whatever purpose, but it does not protect anything else, especially it does not protect expression, communication, use of the street, noise, etc. This view has been understood to advocate the wide understanding of assembly by some.¹³⁰ I think what is gained in scope by the dispensation with a common goal, is lost by the exclusion of anything else than assembling itself. Thus I do not consider Depenheuer arguing for a wide scope, it is rather a kind of literary interpretation akin to that of Justice Black on the USSC, except of course that Black applies it to speech, and Depenheuer to assembly.

The constitutional court itself has been reluctant to conclusively decide the issue for many years. In the seminal 1985 case (Brokdorf), the Court could be understood to accept the wide notion.¹³¹ However, in the so-called Sitting blockade III decision from 2001, it describes an assembly as ‘a local gathering of several persons for the purpose of

128 Ulrich Schwäble, Das Grundrecht der Versammlungsfreiheit(ART 8GG), (Berlin, Duncker & Humblot, 1975) 97 ff, cited also by Anna Deutelmoser, ‘Angst vor den Folgen eines weiten Versammlungsbegriffs?’

NVwZ 1999 Heft 3, 240, 241.

129 Herzog, Kommentar zu art 8, above n 126 at Rn. 10-16 zu art 8.

130 Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n 127 at 35, note 11.

131 Bodo Pieroth, Bernhard Schlink, Staatsrecht II. Grundrechte, 27th edn (Heidelberg, C.F. Müller, 2007) Rz. 693.

39 common discussion or demonstration which aims at participating in the public formation of opinion.’¹³² The German original does not necessarily differentiate between formation of public opinion and public formation of opinion. It remains disputed if the Court thereby embraces the enlarged or the narrow understanding of assembly, since public opinion can be formed in private just as public, ‘political’ matters. I agree with those authors, who emphasise the futility of the distinction of public and private matters in this particular regard,¹³³ because it necessarily enables the state to become the censor about what belongs to which category. To illustrate the problem Schulze-Fielitz mentions a North-Rhine-Westphalia judgment in which inline-skaters’ city run was not considered an assembly even though the inline-skaters wanted to raise the issue of recognising inline-skates as vehicles for the purposes of street traffic,¹³⁴ ie a rather public matter.

Nonetheless, the GFCC appears to side with ordinary courts in denying constitutional protection to ‘solely entertaining’ street events, such as the Love Parade, though the relevant decision was only a denial of a motion for preliminary injunction, and not a full judgment on the substance of the question.¹³⁵ Here we see a drawback of the

‘judicial democratisation’ of freedom of assembly,¹³⁶ and the limits of functionalist interpretation of basic rights which easily turns ‘values’ to be protected into ‘limits’ to be enforced: if freedom of assembly serves democratic self-governance, then a contrario assemblies which do not fulfil this purpose will be denied constitutional protection.

On the other hand, the text (Art 8 GG) itself clearly refers to two types of assemblies. In one category belong assemblies which take place unter freiem Himmel (‘under the free sky’), which is interpreted to mean assemblies which are not delimited (by wall, fence, etc.) from the side. Such open air spaces would be the streets, squares,

132 BVerfGE 104, 92, 104 (2001): ‘Versammlungen im Sinne des art 8 GG sind demnach örtliche Zusammenkünfte mehrerer Personen zur gemeinschaftlichen, auf die Teilhabe an der öffentlichen Meinungsbildung gerichteten Erörterung oder Kundgebung.’

133 Dietel, Gintzel & Kniesel, Versammlungsgesetz, above n 127 at 37, Rn. 12.

134 OVG Nordrhein-Westphalen, NVwZ 2001, 1316 as cited by Schulze-Fielitz, Kommentar zu art 8, above n 126, Rn. 27, note 107 at 897.

135 BVerfG, 1 BvQ 28/01 vom 12.7.2001, Absatz-Nr. (1 - 28), http://www.bverfg.de/entscheidungen/qk20010712_1bvq002801.html

136 See under ‘democracy related’ values, below text accompanying nn 176-194.

40 (unfenced) parks, and many more, most recently also other ‘places of communication’, like (open areas at) airports.¹³⁷

In the other category belongs every other assembly, ie which is surrounded by wall or fence. The at least partial overlap with French law is apparent: the first places would be largely voie publique, while the latter are not voie publique (there cannot be traffic). Nonetheless, what is considered ‘unter freiem Himmel’ in German law, might eventually not qualify as voie publique in French law, if there is no crossing traffic. As art 8 GG stipulates in paragraph I that freedom of assembly cannot be subject to prior notice or authorisation, and paragraph II only allows limits by law for assemblies under the free sky, it might appear that assemblies similar to réunions cannot be restricted in any way, and it also might appear that prior notice or authorisation is not meant by the

‘limit by law’ (Gesetzesvorbehalt) in paragraph II.

However, this clear division of the constitutional text has been largely eliminated by systematic interpretation. Firstly, the modalities [Art und Weise] of any sort of assembly belong under art 8, ¹³⁸ while the content of any sort of assembly belongs under art 5 I, right to freedom of opinion.¹³⁹ What this means in more detail will be discussed under the next heading on demonstration and the relation between freedom of assembly and freedom of opinion. Secondly, prior notice was found constitutional in cases of assemblies under the free sky, as it will be discussed in the next chapter.

5.2. Demonstration and the relation between freedom of assembly and freedom