Austrian far-right extremist Martin Sellner spent the day on Monday taunting leading German politicians as he defied a mooted plan to ban him from German soil. Live-streaming his two-hour journey in a rented car to the German border, the leader of Austria's Identitarian group posted regular videos to social media after vowing to drink a coffee in the Bavarian town of Passau, just across the border.

The stunt, cheered on by a handful of supporters on the roadside, culminated in a brief encounter with the German police, who let him pass into Bavaria. He promptly filmed another video where he sarcastically thanked German Interior Minister Nancy Faeser and Chancellor Olaf Scholz.

The 35-year-old Sellner recently gained public attention when it emerged that he was a key speaker in a gathering of far-right extremists in Potsdam last November, also attended by members of the far-right Alternative for Germany (AfD). At the meeting, he presented a "masterplan" to forcibly "remigrate" foreigners from Germany, including German citizens with an immigrant background.

A new flurry of interest in Sellner was sparked last week when the socialist Left Party's anti-fascism spokesperson Martina Renner asked the government whether it was considering banning Sellner from entering Germany. Interior Ministry officials confirmed to the Bundestag member that a ban was being considered. The Potsdam city government has since said that its foreigners' registration authorities were also assessing whether the gathering in the city constituted a "danger to safety and public order."

Legal means against fascism

The potential ban was welcomed by politicians from all major parties. "In our well-defended democracy, we should fundamentally not tolerate any agitation against our constitutional order — especially not from foreign extremists like Martin Sellner," Philipp Amthor of the center-right Christian Democratic Union (CDU) told the DPA news agency.

The Left Party's Martina Renner, who favors a ban, was undeterred by Sellner's defiance this week. "The fact that he was nevertheless able to enter the country yesterday does not speak against such an examination, as this could result in a longer-term entry ban if the outcome is positive," she told DW by email. "We must not leave any legal remedies unchecked and unused that make it more difficult for neo-Nazis and fascists to engage in political activity."

The EU's Freedom of Movement Act allows member states to deny people entry on the grounds of "public order or security." But, the law adds, "There must be a real and sufficiently serious threat to the public order, affecting the basic interests of society."

Renner believes that Sellner represents such a threat: "Participation in meetings on the territory of the Federal Republic of Germany to plan and implement millions of deportations of people from Germany violates these fundamental interests in a fundamental way," she said.

But Stefan Martini, senior researcher in public law at Kiel University, is skeptical whether there are enough grounds to ban Sellner from the country. "It would depend on how concrete these remigration plans are thought to have been," he said. "Would this count as a call for subversion in Germany? If so, then a ban could be justified, but if he is thought to have just described some abstract scenarios, then the entry of Mr Sellner probably wouldn't be seen as sufficiently dangerous."

Suspending freedom of movement in the EU

Other countries have considered Sellner a threat in the past. The United Kingdom and the United States both denied Sellner entry in the past few years. In the US' case, this happened after it emerged that he had had direct contact with Brenton Tarrant, the Australian terrorist who murdered 51 Muslims in a mosque in Christchurch, New Zealand, in March 2019. Sellner's organization, the Identitarians, had also received a donation from Tarrant.

But the EU has more stringent criteria — especially for EU citizens like Sellner, who enjoys freedom of movement rights. "Simply because of the European regulations, Germany is much stricter," said Martini. "The individual must get a hearing, the reasons why a ban is imposed must be made clear — the legal restrictions on such a decision are much more stringent in Germany than in other countries."

And the criteria for imposing an entry ban are also relatively strict. "A fundamental interest of society needs to be threatened — such as the peaceful co-existence of people," said Martini. "Even if the individual committed a crime in the past, you still have to examine whether a ban would be proportional."

Nevertheless, bans on extremist agitators are not uncommon in the EU — though they are generally tied to actual events. In 2020, Germany denied entry to Danish-Swedish politician Rasmus Paludan after the anti-Islam activist had burned a copy of the Quran at a demonstration in Copenhagen. His group was planning a protest in the Neukölln district of Berlin, where many Muslims live.

Similarly, in 2019, authorities in the German state of North Rhine-Westphalia ensured that Russian extremist Denis Kapustin was denied entry to the entire Schengen area after he had organized martial arts events for neo-Nazi groups across Europe.

Martini says that while in such cases the federal Interior Ministry usually carries out a risk assessment and then issues orders to the police, even if border control officers have no order from above, they can also use their own discretion.

"In the case of Mr. Sellner, an interview was apparently carried out at the border," he told DW. "He was asked what purpose his stay in Germany had, and then they had to decide on the spot: Is there any threat to public safety in Germany?" In short, if Sellner told them on Monday night, as he declared to his followers, that he was going for a coffee, the officials would have seen no grounds to refuse him entry.

Edited by Rina Goldenberg

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