“This Undermines the State’s Promise of Equality”
Five Questions to Dana Schmalz
CDU chancellor candidate Friedrich Merz demanded that individuals with dual citizenship should lose their German nationality if they commit crimes. His proposals have been criticized as a dangerous precedent and as potentially unconstitutional. We spoke with Dana Schmalz, a Senior Research Fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, to gain further insight.
1. According to Article 16, Paragraph 1, Sentence 1 of the Basic Law, no German may be deprived of his or her citizenship. However, under Sentence 2, a loss of citizenship is possible pursuant to a law, provided that the affected person does not become stateless. How is the constitutional distinction between prohibited deprivation and permissible loss defined?
It is the general rule that persons cannot be deprived of their citizenship. Only as an exception, a loss of citizenship may occur based on a law. This rule-exception relationship is already evident from the wording of Article 16, Paragraph 1 of the Basic Law, particularly from its clear first sentence. The exact distinction between prohibited deprivation and permissible loss remains a matter of debate. The Federal Constitutional Court addressed this issue extensively in 2006, emphasizing the purpose and historical context of the provision (BVerfGE 116, 24, para. 35 ff.). The Basic Law aims to prevent politically or racially motivated denationalizations, such as those that occurred under the Nazi regime. The Court stressed that there should be no “division into forms of citizenship of differing quality” and no “deprivation of citizenship based on varying criteria of worthiness.” A prohibited deprivation occurs when individuals lose their citizenship in a manner that undermines the function of citizenship as a reliable basis for equal membership (BVerfGE 116, 24, 49).
2. This debate is not new – only in June 2024 did a reform of the Nationality Act come into effect. Under what conditions is a loss of citizenship already possible pursuant to existing law?
Permissible cases of loss of citizenship include the revocation of naturalization if the applicant had provided false information regarding the requirements, as well as the cases outlined in Section 28 of the Nationality Act, i.e., loss of citizenship upon joining foreign armed forces or through active participation in combat actions for a terrorist organization abroad. The second provision was added during the 2019 reform of the Nationality Act and was highly controversial. The loss of citizenship upon joining foreign armed forces is intended to prevent loyalty conflicts, the provision concerning combat actions for a terrorist militia was introduced with a parallel reasoning.
Merz’ proposal has an entirely new dimension: the revocation of citizenship because of criminal offenses, as a sanction. This is incompatible with the idea of citizenship as a reliable basis for equal membership.
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3. How does Germany’s approach compare to that of its European neighbours?
Over the past decade, many European states have introduced or expanded regulations allowing for the loss of citizenship, especially in connection with terrorism. A recently published dissertation by Sara Maria Collorio provides an excellent analysis of such regulations in light of the European Convention on Human Rights, outlining this trend. Some states, such as the Netherlands and Austria, have provisions foreseeing the loss of citizenship for serious crimes. These regulations are hardly in line with the European Convention on Nationality, which exhaustively lists permissible grounds for the loss of citizenship – this does not include criminal offenses of a general nature. Overall, it is a problematic trend to use the deprivation of citizenship as a punitive instrument.
4. A spokesperson for the Federal Ministry of the Interior has since stated that revoking German citizenship solely due to criminal offenses “would not be compatible with constitutional requirements.” Merz (and his advisors) were probably aware of this. To what extent is it more about the political impact of such demands during an election campaign than about their substance?
It is good that the Ministry of the Interior issued this statement. Of course, Friedrich Merz must have been aware of the constitutional requirements. He seems to believe that such remarks will benefit him in the election campaign. This might be a miscalculation. We are talking about 2.9 million Germans who have a second nationality. They, their friends and their colleagues are all eligible to vote and will likely not appreciate the divisive rhetoric that distinguishes between stable and unstable citizenship. In any case, I think that Merz’ proposal has a harmful effect on the social cohesion. Its implementation would fail on constitutional grounds, but the damage is done. The candidate with good chances to become the next chancellor is telling a significant portion of the population: You may have citizenship, but we are looking for ways to treat you differently under the law. This undermines the state’s promise of equality to its citizens.
5. Migration policy will undoubtedly be a central campaign issue. What (discursive) role does citizenship play in this context?
Naturalization is, in a sense, the final step in the immigration process. Whether regarding initial access to the territory, access to permanent residence, or naturalization – it is always about borders, about control over who is “inside” and who is “outside”. The proposal that the citizenship of naturalized individuals or those with dual nationality should be less stable seeks – at least rhetorically, it is not constitutionally feasible – to draw another border between those who are “fully inside” and those who are “somewhat inside”.
Our present is characterized by significant uncertainty. It is easy to appeal to people by assuring them that they are “inside” and that entry will be more strictly controlled, whether regarding initial immigration or the acquisition of citizenship. However, this illusion of control will ultimately change little in the sense of uncertainty that many people experience in their lives. The threat to the rights of minorities is very real, but the alleged increase in security through “stricter borders” is helpless symbolic politics.
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Editor’s Pick
by EVA MARIA BREDLER
Do you read poetry? I have to admit that I only really started recently, spending Christmas with Mary Oliver. Mary Oliver was born in 1935 in Ohio, where she frequently missed school because she didn’t like buildings in general (apparently a recipe for winning the Pulitzer Prize). Her nature poetry is soothing – perfect, for instance, when you once again failed to step outside for even ten minutes amidst the busyness of the day. Here’s an excerpt from her poem “Wild Geese” that has been on my mind a lot:
You do not have to be good.
You do not have to walk on your knees
for a hundred miles through the desert repenting.
You only have to let the soft animal of your body
love what it loves.
I read these lines curled up by the fireplace, between several naps, and it dawned on me that our body truly is a gentle animal – if we let it be. If I may still wish you (and myself) something for 2025, it would be this: amidst everything that feels so urgent, let’s not forget to be a cat now and then.
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The Week on Verfassungsblog
…summarized by EVA MARIA BREDLER
January is a strange month. While December drags on endlessly with its folklore and feasting, half of January has already passed before we even blinked once. The shock is all the greater when we realize that the Bundestag elections are only six weeks away – and when we look at how the election campaign is heating up. Chancellor candidate Friedrich Merz has called for the possibility to deprive Germans with dual citizenship of their German one if they commit crimes (see the interview with DANA SCHMALZ above). This raises, once again, the question of who “the” people is (worth rereading: BERKAN KAYA (GER)). VICTORIA KAUTZNER (GER) argues that there is no legal basis for Merz’ demands to revoke citizenship. Moreover, such demands would pave the way for a two-tier citizenship system – and thus undermine the promise of equality, as ASTRID WALLRABENSTEIN (GER) already pointed out years ago.
Citizenship regulation was also at the heart of a ruling by the Regensburg Administrative Court that specifically concerned the 2024 reform. Section 10(1)(1a) of the German Nationality Act since stipulates that only those who “acknowledge Germany’s special historical responsibility for the Nazi regime and its consequences, particularly for the protection of Jewish life, as well as for peaceful coexistence among nations and the prohibition of waging a war of aggression” can be naturalized. The Regensburg court ruled that this acknowledgment also includes recognizing Israel’s right to exist. In doing so, the court upheld a Bavarian decision to deny citizenship to a stateless Palestinian. FLORIAN MEINEL (GER) criticizes the ruling, particularly its “moral triumphalism” and its interpretation of raison d’état.
The European Union, too, is constantly grappling with the question of who should be inside. In December 2024, the European Commission issued a communication to the European Parliament and the Council on so-called “hybrid threats” at the EU-Belarus border. The aim was to reduce irregular migration. The communication specifically discusses how Member States can use Article 72 TFEU to circumvent the Common European Asylum System. In doing so, the Commission indirectly justifies the current pushback practices of Poland, Lithuania, and Latvia, argues MARLENE STILLER (EN).
Irregular migration will multiply with the increasing displacement caused by climate change. This is one of the many ways in which the International Court of Justice Advisory Opinion on the obligations of states in respect of climate change will be far-reaching. On December 13, hearings have concluded, with the judges’ final questions focusing on state obligations related to fossil fuels and the interpretation of Article 4 of the Paris Agreement. THERESA AMOR-JÜRGENSSEN and JOSÉ DANIEL RODRÍGUEZ-ORÚE (EN) unpack the questions.
Meanwhile, the Russian war against Ukraine goes on. But since Trump announced plans to prepare a meeting with Putin, discussions about a possible peace treaty between Russia and Ukraine have resurfaced. Article 52 of the Vienna Convention on the Law of Treaties remains a legal barrier, by declaring treaties concluded under the threat or use of force void. However, it would be possible for the UN Security Council to validate such a treaty, argues FELIX HERBERT (EN).
Beyond political hope, ALINA CHERVIATSOVA (EN) highlights the power of cultural symbols amidst the war. During the Christmas season, the Ukrainian song “Shchedryk”, internationally known as “Carol of the Bells”, was resounding around the world. The song symbolizes the country’s unyielding determination to preserve its sovereignty and peace, and its undying hope for renewal and freedom.
ANMOL JAIN (EN) took the turn of the year as an occasion to reflect on the state of constitutionalism in India, where the political influence of the Bharatiya Janata Party is increasingly undoing the achievements of democratic consolidation since the adoption of the Indian Constitution.
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Meanwhile, there is good news from West Africa. In mid-December, the heads of state and government of the Economic Community of West African States adopted a landmark decision: a special tribunal will be established to address human rights violations and crimes committed during Yahya Jammeh’s dictatorship in Gambia – a milestone, says MANUEL BRUNNER (DE).
A milestone seems out of sight, however, for Germany’s abortion law, despite recent initiatives. LAURA-THERESA GODAU (DE) summarizes the contradictory legal situation and the current draft law. She calls for clear regulations that strengthen reproductive self-determination.
On 26 November 2024, the Federal Constitutional Court declared the hospital requirement for compulsory medical treatment partially unconstitutional, citing the burdens it places on those affected. TANJA HENKING (DE) highlights the risks of the ruling.
What role does law play in how we navigate cities? TESSA HILLERMANN and LEA SIMMEL (DE) demonstrate that urban and traffic laws can already be used to design cities in a sustainable and gender-sensitive way.
Sustainability is likely to be another key issue in the German election campaign. A central regulatory tool remains supply chain regulation. Shortly after the breakdown of the coalition government, however, the FDP introduced a draft law to repeal the Supply Chain Due Diligence Act. The party criticizes “expensive supply chain bureaucracy” as part of “ethical politics”. For KLAAS HENDRIK ELLER and ANTOINE DUVAL (DE), the draft shows how bureaucracy is becoming a political keyword in the backlash against the Green Deal.
Those who film police actions continue to face criminal prosecution under Section 201 of the German Criminal Code for violating the confidentiality of the spoken word – as in a case before the Munich District Court. This intimidates citizens and journalists alike. For LEA LEUTIGER (DE), fundamental and human rights suggest that such recordings should be decriminalized to ensure legal oversight and transparency of police actions.
Finally, two symposia concluded. In our debate on The EU AI Act’s Impact on Security Law, LENA LEFFER (DE) points out that the EU legislator missed the opportunity to classify algorithmic solutions for detecting potential money laundering cases as high-risk under the EU AI Regulation. Given the severe risks of automated errors associated with the use of AI in combating money laundering, governmental regulation would have been asked for.
In our symposium One Year Later: Rule of Law in Poland, GABOR HALMAI (EN) addresses a crucial dilemma: Are there circumstances in which the rule of law itself may be violated during its restoration?
This wraps up the past few weeks, and indeed brings us to the middle of January. Blink twice more, and it will be spring already! We look forward to the new year with you.
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Take care and all the best.
Yours,
the Verfassungsblog Editorial Team
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