The Role of Fundamental Rights When Restricting State Funding for Public Security Reasons

Although the details remain controversial, it is generally accepted in German constitutional law that the state (under Art 1(3) GG) is bound by fundamental rights in the administration of public services. Scholarly treatment of this issue has focused principally on the equal protection clause—much to the exclusion of civil liberties. For instance, it has been argued that it is better to receive state funding with restrictions than not to receive it at all, thereby rejecting rights limitations due to such restrictions. This perspective has many blind spots. Among others, it cannot integrate restrictions on benefits that affect everyone into the doctrine of fundamental rights, and it deprives rights holders of the protection afforded by special limitation clauses (eg Art 5(2) GG). Moreover, while recent discussions about the legal admissibility of ‘anti-Semitism clauses’ in state funding have brought this issue into sharper focus, recent Federal Administrative Court cases have effectively raised more questions than answers.
In response, this doctoral project investigates the circumstances under which public benefits limitations can be classified as ‘rights infringements’—an important but unresolved question of German fundamental rights doctrine made all the more difficult by its increasingly sensitive social context. Engaging in a doctrinal analysis of German fundamental rights law, and drawing inspiration from legal theory, this project aligns closely with the Department’s first research axis, aiming to further refine our understanding of fundamental rights and doctrinal structures. Its working hypothesis is that participatory rights (Teilhaberechte) always arise whenever the state grants benefits, which have to be understood as substantive rights that are protected by fundamental rights. Limitations of public benefits consequently infringe on participatory rights and, by extension, civil liberties as well. In a bid for greater coherence, this hypothesis will be tested against general fundamental rights doctrine and relevant fields of reference, such as the law of state grants, the law of public objects, and social security law.