Paradigm Shift and Shaky Grounds: The Framing of Nationality in European Law and its Impact on Austrian Citizenship Law

Abstract

This article deals with the development of European case-law in the field of nationality law and shows that both the ECtHR and the ECJ are increasingly imposing human and fundamental rights barriers on the supposedly unqualified sovereignty of states to determine who their nationals are. Against the backdrop of the respective case-law, substantive requirements as well as different approaches of the ECtHR and the ECJ are analysed. The analysis, thereby, not only highlights the conceptual difference between citizenship and nationality but in an excursus also turns to the issue of the legal validity of nationality decisions that are contrary to EU law. The concluding section discusses the Austrian implementation of the European legal framework and the apparent struggle of the Constitutional Court and Administrative Courts with the requirement of a proportionality assessment in the context of an ex lege loss of Austrian citizenship due to the adoption of another nationality. The formalistic interpretation of the proportionality assessment required by Union law not only raises doubts about the conformity of the Austrian practice, but also provides room to question traditional certainties underpinning Austrian citizenship law.