Legal aspects of the flag
Term and definition of the flag
A flag is usually a rectangular piece of cloth used as an identifying and distinguishing symbol, particularly for national, governmental, international, or private entities. In German law, the term “flag” generally refers to the specific use of an official emblem, such as a national flag, service flag, or any other official or private designation displayed on ships, buildings, or during public events.
Legal foundations for the use of flags
Constitutional provisions
The Basic Law of the Federal Republic of Germany regulates the appearance of the German state flags in Article 22(2) of the Basic Law (GG). It stipulates that the federal flag is black-red-gold. Other flags at the federal or state level are specified through corresponding laws and regulations.
Federal laws and regulations
The legal basis for the use and display of flags at the federal level arises, among others, from the following provisions:
- Administrative Offenses Act (OWiG)
- Criminal Code (StGB)
- Law on the Federal Flag (Flag Act)
- Provisions of the respective federal states
The display of flags on federal authorities and buildings is explicitly regulated by the Flag Act and the Flag Service Directive (FlaggenVO). For ships in maritime traffic, special provisions under the Maritime Tasks Act (SeeAufgG) and international agreements apply.
Flag law in the international context
Internationally, the fundamental standards of flag law are particularly set by the law of the sea anchored in international law and the relevant international treaties such as the United Nations Convention on the Law of the Sea (UNCLOS). These define which states have the right to fly their flag and under what conditions stateless vessels may carry a flag.
Types and legal significance of flags
National flags and their protection regulations
National flags are central emblems of state sovereignty. Their use is legally protected; abuse or denigration is punishable in Germany under Section 90a of the Criminal Code (StGB), as is the public disparagement of foreign flags (§ 104 StGB). The use and display of the national flag are therefore subject to particular anti-discrimination and protection requirements.
Service flags and their usage restrictions
Service flags are intended exclusively for use by authorities and official agencies. Unauthorized use is an administrative offense under Section 124 OWiG. The precise design and use are governed by internal official regulations issued by the competent authorities and are associated with administrative instructions from both state and federal governments.
Merchant flags and flags in maritime navigation
In the maritime sector, the display of a flag (so-called registration under a state’s “flag”) is of central importance. The flag stands for the so-called “flag right”, which means a ship sails under the flag of a specific state and thus is subject to its legal system. Special rules of international and national maritime law apply to the flagging of private and commercial vessels.
Flag certificate
For flying the federal flag on German ships, an official flag certificate is required, which serves as proof of the right to fly the flag. The absence of such a certificate can result in administrative measures and, in the international context, significant legal disadvantages.
Protection and misuse of flags
Legal consequences of misuse or disparagement of flags
Protection of the flag is governed by both criminal and administrative law. Denigration, defacement, or prohibited use of flags can be punished by fines or imprisonment (§ 90a, § 104 StGB). In addition, civil claims for injunction and damages may exist under § 1004 BGB (injunction) and § 823 BGB (damages) against the perpetrator.
Protection of third-party rights and international relations
Particularly when presenting or using foreign, especially foreign state flags, respect for foreign state emblems must be observed. Disparagement can not only have criminal consequences but also cause diplomatic incidents and foreign policy disruptions.
Flag law in public spaces
Use of flags at events
The use of flags in public spaces is often regulated by municipal laws. For public buildings, flagging is governed by flag service directives. Private individuals are generally allowed to use state or federal flags as long as this is not for denigratory purposes.
Right of assembly and flag bans
During demonstrations or assemblies, the display of certain flags may be prohibited by assembly authorities, especially if there is an expectation of violation of criminal law or if unconstitutional symbols are shown. The freedom of assembly ends where the flag law is restricted by criminal or administrative offenses legislation.
Summary
The system of flag law in Germany and internationally forms a complex network of constitutional law, federal statutes, administrative regulations, and international norms. The use, protection, and display of flags are governed by clear rules, violations of which may entail criminal, civil, and administrative consequences. Compliance with the applicable regulations serves to protect state sovereignty, public reputation, and international relations.
Frequently Asked Questions
Is everyone allowed to use a national flag in public spaces?
The use of a national flag in public spaces in Germany is subject to certain legal requirements. In principle, private individuals are permitted to display the German national flag or the flags of other states. This is especially true during celebrations, sporting events, or for personal reasons. However, there are exceptions: the use of a flag may not be offensive, disparaging, or conducted in a way that disturbs public order. According to § 90a StGB (Criminal Code), the disparagement of the federal flag and the flags of foreign states is a criminal offense. The degrading, burning, destroying, or otherwise humiliating treatment of a national flag may be punished with a fine or imprisonment. Furthermore, municipal statutes may restrict flagging on private property, particularly when used for advertising or unauthorized demonstrations. The use of official service flags is reserved exclusively for state authorities.
What legal requirements apply to hoisting a flag on public buildings?
Hoisting flags on public buildings in Germany is strictly regulated. Flagging may only take place on the order of the federal or state government, by top federal authorities, or on designated flag days (e.g., German Unity Day). Public buildings may only be flagged with certain flags, in particular the federal flag, the state flag, and possibly the European flag. For special occasions, such as state visits or periods of mourning, special instructions apply, like mourning flags at half-mast. The implementation of these regulations is governed by the flagging regulations of the respective federal and state ministries. Unauthorized hoisting of different flags on public buildings is prohibited and may result in disciplinary and criminal consequences.
Are there criminal consequences for damaging or burning a flag?
Yes, damaging or burning flags is explicitly punishable in Germany when it involves national flags, service flags, or foreign state flags. Under § 90a StGB, public disparagement of the federal flag, a state flag, or a foreign flag is a criminal offense. The offense is punishable by imprisonment of up to three years or a fine. Not only burning, but any form of intentional denigration or disparagement is punishable. Publishing recordings of such acts may also lead to criminal consequences. Criminal liability applies regardless of whether the act takes place in private or public spaces, as long as it occurs in public, i.e., before several people or on social media. In the case of flags of other states, the principle of reciprocity required under international law may also apply.
May I use flags for advertising purposes or as decoration?
The use of flags for advertising purposes is generally permitted, provided that there is no denigration or falsification and public order is not disturbed. However, the use of official service flags or imitation of state emblems in a way that could cause confusion with official symbols is prohibited. In particular, the design of the flag must not be altered so that it takes on the character of a state emblem (e.g., by adding company logos to the German federal flag or advertising inscriptions). Such actions may be sanctioned under the Administrative Offenses Act or the Trademark Act. In some municipalities, permits are also required for advertising stands or large outdoor decorations. When using foreign flags, potential diplomatic sensitivities must also be taken into account.
What regulations apply to the display of foreign flags in Germany?
The display of foreign flags is generally permitted in Germany, provided there is no offensive or disparaging intent. Under § 104 StGB, it is a criminal offense to remove, damage, or otherwise disparage a foreign flag as a sign of disrespect when this is done publicly or at a gathering. Penalties range from a fine to two years’ imprisonment. For events of a political nature (e.g., demonstrations), the display of foreign flags is also subject to assembly law; additional legal restrictions may apply. Improper use of foreign state symbols can also strain diplomatic relations.
Is modifying or customizing a flag permitted?
Modifying or customizing a national or service flag is legally problematic. Private individuals may indeed create and use stylized or individually designed flags for private purposes, as long as alterations do not compromise the dignity or protected status of the flag. Placing symbols, inscriptions, or other markings on the federal flag, the federal eagle, or on service flags (as used by authorities) is not permitted and may constitute an administrative or even a criminal offense (§ 124 OWiG, § 90a StGB). Excessive resemblance to or imitation of official emblems may also be prohibited, particularly if there is a risk of confusion. For commercial products with flag-like motifs, trademark and competition law provisions also apply.
Are flags containing religious symbols subject to special legal provisions?
Flags with religious symbols are generally subject to the same legal regulations as other flags. However, special sensitivity is required, as the denigration of religious symbols is also protected under criminal law (§ 166 StGB – Insulting faiths, religious societies, and organizations dedicated to worldviews). Anyone who denigrates a flag with religious content by destroying, burning, or distorting it may be criminally liable. Particular consideration must be given to the religious feelings of others, especially at public events and demonstrations. Mere possession or display of such flags is generally not prohibited in Germany, as long as the above-mentioned protection rights are not violated.
