Lang & Rahmann is currently handling proceedings before the Federal Administrative Office in Cologne and the Administrative Court in Berlin in which dual nationals have been deprived of their German citizenship due to their alleged voluntary entry into foreign armed forces.

In the cases we advise on, the authorities based their decision on the old version of Section 28 of the German Citizenship Act (StAG). According to this provision, a German who joins the armed forces or a comparable armed unit of a foreign state of which he or she is a national without the consent of the Ministry of Defense loses German citizenship by operation of law.

The provision of § 28 StAG may be justified in cases where joining a foreign armed force or even a terrorist organization expresses a self-responsible renunciation of the Federal Republic of Germany and its constitutive values.

Recently, however, the administrative practice has changed without any separate announcement and now the withdrawal of citizenship also affects people who were not previously affected.

Interestingly, according to the unanimous opinion, the performance of ordinary military service does not constitute voluntary entry within the meaning of § 28 StAG, so that no loss of citizenship results from this. However, if a person now takes steps to perform substitute service for the far more time-consuming and serious compulsory military service, the German authorities apparently see this as sufficient reason to sanction this with the loss of German citizenship.

Apart from the fact that there is no voluntary entry into foreign armed forces, the authorities' actions violate the self-binding nature of the administration and are also in breach of EU law:

Military training programs are by no means a novelty and have been used by German dual nationals for years. The German authorities were also aware of this without it ever having led to the withdrawal of citizenships in series. Since January 2022, the authorities have reversed their policy 180 degrees and have since assumed the loss of citizenship in such cases. This completely surprising change in administrative practice was never announced.

Furthermore, Art. 20 TFEU also grants citizens of an EU member state "citizenship of the Union", which is also lost when the citizenship of the EU member state is withdrawn. If EU citizenship is to be withdrawn, it is in line with EU law requirements and established case law of the ECJ to always subject the facts of the case to a careful, case-by-case proportionality assessment, which must take into account, among other things, the situation of the person concerned with regard to the uniformity of nationality within the family and what effects the withdrawal may have on the (planned) family and professional future.

Since the withdrawal of citizenship under Section 28 StAG is effected by operation of law and is merely determined, such a necessary proportionality test does not take place in Germany, which means that a withdrawal under this provision cannot satisfy EU law standards.