Austria - Constitutional Court case of 17 June 2019

The applicant was born in 1974 to an Iranian father and Austrian mother, and by virtue of the laws applicable at the time only acquired Iranian nationality. Austrian nationality was granted to him by a court decision in 1981. He later moved to the US where he wishes to naturalise, and requested permission from Austria to retain Austrian nationality. Such permission, however, can only be granted to nationals by birth. The Court found a violation of the principle of equality of treatment among nationals. 

Case name (in original language)
Case status
Case number
Date of decision
Court / UN Treaty Body
Constitutional Court of Austria (Verfassungsgerichtshof)
Language(s) the decision is available in
Applicant's country of birth
Applicant's country of residence
United States

The applicant was born in 1974 and had an Iranian nationality from birth, derived from his father. His mother was Austrian at the time of his birth, but he did not originally inherit her nationality due to Austrian laws in force at the time. He was awarded Austrian nationality in 1981 by a court decision. The applicant later moved to the US and lived there for 17 years. He wanted to acquire US nationality, and in 2017 requested permission from Austrian authorities to retain his Austrian nationality for reasons of private and family life. In 2018 the authorities rejected this request, on the basis that retention of nationality for reasons of private and family is reserved for nationals who are Austrian by descent. If nationality was granted later in life, even if it happened at a very young age, the provision on permission to retain Austrian nationality when acquiring another nationality does not apply.

Decision & Reasoning

The Court has ruled that the complaint is admissible and well-founded. It reasoned as follows:

“According to the consistent case law of the Constitutional Court […], a violation of the constitutionally guaranteed right to equality among all nationals before the law takes place when, among other things, an administrative court erroneously applies a legal provision that is contrary to equality.”

“Article 28 of the StbG regulates the retention of Austrian nationality when a foreign nationality is acquired, which as a rule leads to the loss of Austrian nationality ex lege, without a decision of an authority required, under Article 27(1) StbG […]. In this system the procedure for granting permission for the retention of Austrian nationality in accordance with Section 28 StbG is fundamentally important, as the authority can and must examine the consequences of loss of nationality with regard to Article 8 ECHR wherever an application for the retention of nationality is made […]. If necessity exists, there is a legal right to retain nationality in accordance with Article 28 StbG.”

“[…] Retention of nationality “for reasons particularly worthy of consideration” is in the interests of Austria, as otherwise the automatic loss of nationality would result in violation of the right to respect for private and family life guaranteed by Art 8 ECHR, and thus in Austria’s failure to fulfil its obligations under this Convention right. There are no objective adequately weighty reasons related to private and family life capable of justifying that retention of nationality in the event of acquiring a foreign nationality is reserved only only to situations if [Austrian] nationality was acquired by descent, but not if it was acquired differently […].”

“Since the [lower instance court] precludes an examination of the circumstances of the applicant’s private and family life from the onset because he did not acquire Austrian nationality through descent at birth, but through conferment, the content of Article 28 StbG was presumed to be contrary to the principle of equality.”


The Court ruled that the applicant's right to equal treatment has been violated.