JY v Wiener Landesregierung

Parties (including notable third parties)

JY (Applicant); Government of the Province of Vienna, Austria (Respondent)

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Summary of Facts

The Applicant was a national of Estonia at the time of her application for Austrian nationality on 15 December 2008. On 11 March 2014, she received an assurance from the competent Austrian authority that she would be granted nationality if she could provide evidence, within two years, that she had renounced her Estonian nationality. Relying on this assurance, she renounced her Estonian nationality on 27 August 2015 and submitted evidence of doing so to the Austrian authorities. The Applicant has been stateless ever since.

On 6 July 2017, the authority examining her application revoked the decision expressing the assurance that Austrian nationality would be granted to her and rejected the Applicant’s application for Austrian nationality. The authorities justified this on the basis that the Applicant had committed two serious administrative offences since receiving the assurance and had been responsible for eight administrative offences prior to this. The serious offences referred to by the authorities concerned a failure to display a vehicle inspection disc and driving under the influence of alcohol. She therefore no longer satisfied the requirements to acquire nationality contained in the Austrian Law on Citizenship.

The Applicant’s appeal against this decision was dismissed by the Administrative Court in Vienna on 23 January 2018 and it was held that the assurance had to be revoked due to the offences committed, in accordance with the relevant provision in the Austrian Law on Citizenship. The Applicant subsequently lodged an appeal against that judgment before the Supreme Administrative Court of Austria (the ‘referring court’).

The referring court decided to stay the proceedings and submitted the following questions to the Court of Justice of the European Union (‘CJEU’) for a preliminary ruling:

1. Does EU law apply where a person renounces EU citizenship on the strength of a naturalisation guarantee, then loses the chance to recover that status when the guarantee is revoked?
2. If so, must national authorities assess whether such revocation is proportionate in terms of its consequences for the person concerned?

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Legal Arguments

Legal Arguments by the Applicant

With respect to the first question, the Applicant argued that she had a legitimate expectation that she would be granted the nationality of a Member State and had involuntarily lost her EU citizenship. This was in response to the Austrian’s government submission that she had voluntarily renounced her EU citizenship, placing the contested decision outside the scope of EU law. She further argued that the Austrian authorities were obliged to comply with EU law and grant her nationality in order for her to retain her derivative citizenship of the EU conferred by Article 20 TFEU.

As for the second question, JY submitted in her observations that neither of the serious offences committed after the grant of the assurance were such as to result in the withdrawal of her driving licence. She stated that the penalties faced were fines amounting to EUR 112 and 300 respectively.

Legal Arguments by the Respondent

The referring court expressed the preliminary view that, because the Applicant was already stateless at the time of the revocation decision, EU law did not apply to the case. It noted that the Administrative Court had found the ensuing statelessness proportionate under the 1961 Convention on the Reduction of Statelessness and that the CJEU judgments in Rottmann and Tjebbes and Others were therefore not applicable. It further stated that neither the fact that the conditions for the revocation of the assurance were fulfilled nor the refusal to grant nationality in accordance with Austrian citizenship law could be contested.

Outcome

Addressing the first question, the CJEU began by recalling the judgments in Rottmann (C-135/08) and Tjebbes and Others (C-221/17). It found that situations in which a national of a Member State relinquishes their nationality and is therefore at risk of losing their EU citizenship fall within the ambit of EU law. Unlike the other cases, however, the contested decision itself did not directly result in a loss of EU citizenship. Despite the differing circumstances, the CJEU found that EU law did in fact apply to the case at hand because such a decision must take into account the fact that the individual was previously a national of another Member State and was therefore a citizen of the EU.

The CJEU went on to examine the nature of the Applicant’s renunciation and found that the Applicant had not made a voluntary renunciation. This is because she renounced her nationality of a Member State with the single aim of satisfying a condition to obtain the nationality of another. The Applicant was therefore found to have had no intention of relinquishing her EU citizenship. Moreover, it found that to the extent that the condition of renunciation contained in such an assurance affects the status conferred by Article 20 of the Treaty on the Functioning of the European Union (‘TFEU’), it falls within the ambit of EU law.

The CJEU noted that the Applicant was entitled to the rights conferred by Article 21(1) TFEU, which guarantees EU citizens the right to move and reside freely within Member States. The CJEU then considered the notion of gradual integration which informs the interpretation of this provision (Lounes, C- 165/16). In residing in Austria and applying for nationality of this Member State, the Applicant has demonstrated an intention to become permanently integrated. It is therefore contrary to the logic of gradual integration for an Applicant who has renounced their EU citizenship status with the aim of integrating more deeply into a Member State, to be excluded from the protection of EU law.

By reason of their nature and consequences, the grant of assurance and its subsequent revocation were found to fall within the scope of EU law.

On the second question, noting the fundamental status of EU citizenship as granted by Article 20 TFEU, it stated that a revocation of an assurance to grant nationality that results in the loss of EU citizenship must be made only on legitimate grounds subject to the principle of proportionality. An assessment of the proportionality of a decision requires an individual assessment of the situation of the person concerned from the perspective of EU law, and, if relevant, that of their family. As part of the examination of proportionality, the national courts must ensure that the decision is consistent with fundamental rights guaranteed by the Charter of Fundamental Rights of the European Union (‘Charter’), including the right to respect for private and family life protected by Article 7 of the Charter, and where appropriate the best interests of the child recognised in Article 24(2).

In this respect, the CJEU held that the gravity of the two offences committed after the assurance did not warrant its revocation. While the referring court relied on the public interest ground laid out in the domestic legislation, to reach the opposite conclusion, the CJEU held that the concepts of ‘public policy’ and ‘public security’, as a justification for derogating from the right of residence, must be interpreted strictly.

The CJEU noted that the offences committed did not present a genuine, present and sufficiently serious threat to public policy or public security. Furthermore, it found that account could not be taken of the eight offences committed prior to the assurance as a basis for the revocation decision. Crucially, the CJEU held that revoking an assurance of naturalisation on the basis of a road traffic accident which does not entail the withdrawal of a driving license was not proportionate. The CJEU also considered the impossibility of her recovering her original nationality due to the requirement in Estonian law that she resides in Estonia for at least eight years. However, the Court clarified that a Member State is not prevented from revoking an assurance merely because recovery of the original nationality is difficult.

In light of the significant consequences for the Applicant’s situation, as regards, in particular, the normal development of her family and professional life, the decision was held not to be proportionate to the gravity of the offences committed.

On those grounds, the CJEU ruled that:

1. EU law applies where a person renounces their sole Member State nationality on the basis of a naturalisation assurance, and that assurance is later revoked, permanently preventing them from recovering EU citizenship.

2. National authorities must conduct an individual proportionality assessment before revoking such an assurance where it results in permanent loss of EU citizenship. Such a decision is disproportionate where it is based solely on traffic offences punishable only by a fine.

International, Regional and Domestic Instruments and Provisions Cited

Source	Instrument name	Provisions cited
International	UN Convention on the Reduction of Statelessness 1961	Article 7(2)
Regional	European Convention on Nationality	Articles 4, 7, 8, 15 and 16
Regional	Treaty on the Functioning of the European Union	Articles 20(1), 20(2)(a) and 21
Regional	Charter of Fundamental Rights of the European Union	Articles 7 and 24(2)
Domestic	Staatsbürgerschaftsgesetz 1985 (Austrian Law on Citizenship)	Paragraphs 10 and 20

UNHCR Statelessness Guidelines cited

This case does not cite UNHCR Statelessness Guidelines.

Available commentary

Guido Bellenghi, ‘The Court of Justice in JY v. Wiener Landesregierung: Could We Expect More?’ (2023) 30(1) Maastricht Journal of European and Comparative Law 83

• Bellenghi argues that the Court's judgment leaves a ‘bittersweet taste’ because while it implicitly criticised Austrian nationality law and ensured a high level of individual protection for JY through a detailed proportionality assessment, it failed to declare the incompatibility of the national practice requiring renunciation of prior nationality with EU law, leaving future applicants without guaranteed safeguards (page 83).
• The author argues that the Court's hesitance stems from the ‘contradictory interplay’ between national autonomy over citizenship and EU integration's ‘process of loss’ (page 84). While the Court's effect-based approach and critique of Austrian law secured JY's protection, this criticism reflects a compromise that failed to declare once for all the illegality of requiring renunciation of prior nationality. Thus, future applicants with the same circumstances have no guarantee of adequate protection.
• Bellenghi argues that the Court missed a significant opportunity to operationalise the principle of mutual trust under Article 4(3) TEU. Estonia was entitled to rely on Austria's assurance, and by failing to declare the withdrawal of such assurances incompatible with EU law, the Court undermined mutual confidence that should coordinate nationality procedures between Member States.

Vasilije Marković, ‘Revocation of an Assurance of Naturalisation through the CJEU’s Lense – Story of JY v Wiener Landesregierung’ (2025) 12(2) e-Publica 104

• Markovic argues that while the CJEU took a ‘step forward’ by bringing the naturalisation procedure as a whole within the scope of EU law and conducting the proportionality assessment itself, it failed to take a ‘second step’ by declaring the conditional assurance system (under which an applicant must renounce their prior nationality based on a promise of naturalisation that remains revocable if subsequent conditions are not met) incompatible with EU law.
• Austria's conditional assurance procedure violates international law under the 1961 Convention and the UNHCR Tunis Declaration, which require that assurances be unconditional and not retracted once issued. The author criticises the CJEU for legitimising this practice rather than condemning it.
• Markovic proposes three ‘de lege ferenda’ (concerning the law as it ought to be) reforms to Austrian nationality law: making assurances unconditional, exempting EU citizens from the renunciation requirement, and codifying a statutory duty to conduct proportionality assessments in all revocation cases. He contends that the latter is the most feasible compromise between protecting EU citizenship rights and preserving Member State autonomy.