R v Provincial Government of Upper Austria

Docket NumberCase No. 61
Date06 Mayo 1952
CourtAdministrative Court (Austria)
Austria, Administrative Court.
Case No. 61
Provincial Government of Upper Austria.

Annexation — Annexation of Austria by German Reich — Compulsory Acquistion of German Nationality by Austrian Nationals — Subsequent Entry of Austrian National into Service of Reich — Loss of Austrian Nationality by Entry into Service of “Foreign State” by virtue of Austrian Law — Whether Entry into Service of Reich Results in Loss of Austrian Nationality.

Nationality — Loss of — By Entry into Service of Foreign State — Entry of Austrian National into Service of German Reich While Austria Part of Germany — Whether such Entry results in Loss of Austrian Nationality.

The Facts.—The Austrian Transitional Nationality Law of 1949 provides, inter alia, that persons who were Austrian citizens on March 13, 1938 (the date of the annexation of Austria by Germany), and who compulsorily acquired German nationality thereafter, re-acquired Austrian nationality as from April 27, 1945. The Law of 1949 excepted from its operation those who, between the dates referred to, had lost their Austrian nationality by virtue of the Austrian Law of July 30, 1925, which provided, inter alia, that Austrian citizens automatically lost their Austrian nationality upon entry into the public service of a foreign State.

The appellant was the Austrian-born widow of an Austrian national who entered the public service of the German Reich in June 1939. It was conceded that if Austria had been an independent State on that date (and had not then formed part of the German Reich), the appellant's husband (who died in 1942) would have ceased to be an Austrian citizen in June 1939, and that the appellant's nationality would have undergone the same change. It was contended on the appellant's behalf that as there was no Austrian nationality in 1939 and as at the time Austrian formed part of Germany, her late husband's entry into the service of the German Reich was not an entry into the service of a foreign State so as to bring about the loss of Austrian nationality in pursuance of the Austrian Law of 1925, and that she was accordingly entitled to a declaration that she was an Austrian national as from April 27, 1945. The Court said:

“Having regard to the fact that the nationality of the appellant depends on that of her husband, we must examine the question as to whether the entry of the latter into the service of the Hanover Academy as an assistant and a lecturer would have constituted one of the circumstances...

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