Berlin culture: Anti-discrimination clause in Berlin: Encrypted art

Anyone who wants to receive cultural funding from the state of Berlin must now take a stand against anti-Semitism in the form of the International Holocaust Remembrance Alliance’s definition of anti-Semitism (IHRA definition) as expanded by the federal government. Grant notifications will only be sent with a corresponding clause.

The announcement of this new “anti-discrimination clause” has already attracted attention in German feature pages in recent days. On January 8th, a comment in the “Taz” described the new clause as “absolutely necessary”. And the “Welt” announced with euphoria that the “grueling discussion” about cancel culture could finally be put on a “conceptual basis.”

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However, the goal proclaimed by Culture Senator Joe Chialo (CDU) of combating anti-Semitism in the cultural sector can hardly be achieved with such a clause. Explanations in grant notices will not dissuade anti-Semitic artists from their stance. Which Jew-hater will be so consistent as to forego state funding for culture just because he has to formally commit to Israel’s right to exist? In contrast, the clause could exclude Israeli artists critical of the state from funding.

But the legal implications of the new regulation are much more significant: With it, the Senator for Culture is taking a dangerous, legally vulnerable path. Administrative courts have already declared comparable clauses to be unlawful in the past. This opens a new chapter of legal uncertainty for artists and cultural producers. The Senator for Culture is doing a disservice to the urgent fight against anti-Semitism.

Confession clauses are not a new phenomenon. More than ten years ago, they were briefly included in various funding guidelines in the form of “extremism clauses”. Administrative courts have set strict limits on their use. This particularly applies to the area of ​​cultural funding. The new clause does not meet the legal requirements.

In view of the relevant case law, it could already be doubted that a reference to the “IHRA definition as extended by the Federal Government” satisfies the constitutional requirement for certainty. In a comparable case, the Dresden Administrative Court (judgment of April 25, 2012 – 1 K 1755/11) demanded that clauses in funding decisions must be so “complete, clear and unambiguous” that applicants could direct their behavior accordingly. The IHRA definition cannot meet these requirements. Legal discourse emphasizes that the IHRA definition was not formulated as a legally binding provision. A group of renowned legal scholars made it clear on the Constitution Blog, a debate platform that deals with legal issues, that the IHRA definition was designed as a tool for monitoring anti-Semitism: “Making it a de facto binding text goes against its legal nature . It is far too imprecise to create legal certainty or to establish official practice.

Requiring a commitment to the IHRA definition is also likely to represent a violation of the fundamental right to artistic freedom and the principle of equal treatment. According to Article 5, Paragraph 3, Sentence 1 of the Basic Law (GG), art is free. According to the Federal Constitutional Court, this also results in the prohibition for the state to “influence the methods, content and tendencies of artistic activity” (BVerfGE 30, 173, 190 – Mephistopheles). Conversely, as the Senator for Culture correctly points out, there is also “no fundamental right to state funding”.

However, the promotion of art must be measured against the principle of equality (Art. 3 Para. 1 GG). According to this, artists and art producers may not be arbitrarily excluded from state funding programs. In a comparable case, the Federal Administrative Court (judgment of April 6, 2022 – 8 C 9.21) made it clear that the requirement for a confession was only justified if the content was related to the goals of the funding program.

It is not clear that the clause meets this requirement. With regard to the ban on state interference in artistic activity, it seems remarkable that, based on current knowledge, the clause is not aimed at the individual work of art, but at the political stance of the applicants.

Against this background, the fate of the anti-discrimination clause is likely to be decided by the courts soon. As long as it exists, however, its breadth and indeterminacy means it creates unbearable legal uncertainty for artists. It is doubtful whether this will serve the necessary fight against anti-Semitism. The Senator for Culture would be well advised to refrain from using the anti-discrimination clause.

Albert Roux works as a lawyer with a focus on cultural promotion in Berlin

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