Transnational solidarity conflicts: constitutional courts as fora for and players in conflict resolution

• Applicant: Professorin Dr. Anuscheh Farahat
• Subject Area: Public Law
• Term: from 2016 to 2024
• Project identifier: Deutsche Forschungsgemeinschaft (DFG) - Project number 318864869

National legislative autonomy in socio-economic matters is increasingly limited by political and economic interdependencies between EU member states and regulation at the European level. This has become particularly salient during the Eurozone crisis, which began in 2008. The loss of national autonomy has given rise to political and legal conflicts over the disparate adjustment cost resulting from a common currency and progressing integration. These conflicts can be grasped as transnational solidarity conflicts (TSC). The core hypothesis of this project is: The combination of limited political autonomy at the national level and increasingly executive decision-making on distributional regimes at the supranational level puts at risk the political inclusion of those groups who are negatively affected by those supranational decisions. Despite their transnational nature, however, solidarity conflicts in the EU are increasingly being dealt with by domestic constitutional courts. This explains the core research questions of this project: What role do domestic constitutional courts play empirically in securing political inclusion in TSC? How can their role be normatively justified?The research object of this project is the constitutional jurisprudence of five constitutional and apex courts in both donor and debtor countries in the Eurozone. This jurisprudence will be examined at three levels: (1) Empirically, the research project asks why domestic constitutional and apex courts become crucial fora for settling TSC. The project hypothesizes that these courts become tempting fora for political and social players precisely because a political strategy involving domestic parliaments is no longer fruitful due to the restraints resulting from interdependencies and EU regulation. Consequently, domestic courts appear suitable for obtaining symbolic recognition of TSC. (2) At an analytical level, the project then comparatively analyzes the active role of constitutional and apex courts in TSC. Two questions merit closer attention: Do courts use procedural law as a filter to influence their involvement in TSC and if so, how? Which argumentative patterns and doctrinal concepts are central in domestic constitutional adjudication of TSC and how do these patterns shape the meaning of transnational solidarity? (3) Finally, the project discusses at a normative level how the intervention of domestic constitutional and apex courts in TSC may be justified. The goal is to develop a theoretical yardstick to define the legitimate function of these courts in TSC, taking into account the requirements of a democratic system that is based on the separation of powers. Measuring them against this yardstick, a critical assessment of the doctrinal concepts and argumentative patterns used in current constitutional adjudication on TSC can be undertaken.

• DFG Programme: Independent Junior Research Groups