The Bavarian nationality is unchanged since 1946 existing Article 6 of the Constitution of Bavaria formalized (BayVerf), but the absence of an implementing law no actual significance. Bavarian citizenship ( indigenous ) has existed as a constitutional law since the constitution of the Kingdom of Bavaria on May 1, 1808 and was regulated uniformly for all of Bavaria with an edict of January 6, 1812.
Acquisition facts of Bavarian citizenship
Article 6 BayVerf specifies the circumstances of acquisition of Bavarian citizenship, Article 7 regulates who is to be considered a Bavarian citizen, and Article 8 regulates the relationship between the Bavarian people and the nationals of other German states . The provisions are in detail:
- Article 6
- (1) Citizenship is acquired
- by birth;
- through legitimation;
- by marriage;
- By naturalization.
- (2) Citizenship cannot be revoked.
- (3) The details are regulated by a law on citizenship.
- Article 7
- (1) A citizen is any citizen who has reached the age of 18 regardless of their birth, race, sex, creed or profession.
- (2) Citizens exercise their rights by participating in elections, referendums and referendums, as well as referendums and referendums.
- (3) The exercise of these rights can be made dependent on the length of stay of up to one year.
- Article 8
- All German citizens who are resident in Bavaria have the same rights and the same obligations as Bavarian citizens.
Art. 8 BayVerf shows that Bavarian citizenship does not aim to exclude Germans from other federal states. Germans without Bavarian citizenship who live in Bavaria have the same rights and obligations as people who have Bavarian citizenship. This view coincides with33.1 of the Basic Law, which later came into force .
The “draft of a law on Bavarian citizenship” was intended to implement Art. 6 Para. 3 BayVerf. Justice Minister Wilhelm Hoegner forwarded the draft to the President of the Bavarian State Constitutional Assembly , Michael Horlacher , on September 14, 1946 . The draft law passed through the committee and was adopted by the state assembly on October 15, recommending the enactment of this law to the state government . When the law came into force, the refugees in Bavaria would not have acquired Bavarian citizenship, as the reference date was January 1, 1934. In a letter dated October 24, Lucius D. Clay refused to approve the law insofar as a Bavarian nationality is not also a German one. The law was then postponed and not promulgated. On April 3, 1952, the Bavarian State Parliament decided almost unanimously to "propose a draft law regulating Bavarian citizenship [...] in the near future". The state government declared that one had to wait until the “Citizenship Clearing Act” was passed in Bonn in order to comply with the state parliament decision. In 1958 the application for the issuance of an identity card stating the possession of Bavarian citizenship was rejected by the Bavarian Administrative Court and the subsequent constitutional complaint in 1959.
In the summer of 1962, MP Max Ludwig Lallinger ( BP ) asked whether a Bavarian nationality law had already been drawn up after the request made in 1952. The then interior state secretary Heinrich Junker replied that a design was made in 1956. "Since then, the draft has not been pursued by the Ministry of the Interior because Bavarian citizenship has no legal and therefore no practical significance." Lallinger replied that Art. 44 BayVerf required a legally binding determination of his status as a Bavarian in order to elect a Bavarian Prime Minister .
Relationship of Art. 6 BayVerf to the Nationality Act of the Federation
The question of nationality is not, by its very nature, a matter of regulation that belongs exclusively to the federal government. Rather, German citizenship law has always been characterized by the coexistence of citizenship within the confederation and citizenship in one country. Section 1 of the Citizenship Act of 1870 stipulated: "Reich citizenship is acquired through citizenship in a federal state and expires when it is lost." Article 1 of the Reich and Citizenship Act in its original version of July 22, 1913 (RGBl. P. 93) read: "A German is someone who is a citizen of a federal state (Sections 3 to 32) or who has direct nationality (Sections 33 to 35)".
During the time of National Socialism , the coexistence of federal and state citizenship was abandoned, as § 1 of the ordinance of February 5, 1934 (RGBl. I p. 85) ordered that citizenship in the states cease to exist (paragraph 1) and it will continue to do so in the future There would only be German citizenship (Reich citizenship) (para. 2).
After the collapse of the Third Reich , the Basic Law for the Federal Republic of Germany restored the previous model of two competing nationalities: According to Paragraph 1, No. 2 of the Basic Law, “nationality in the federation” fell under the exclusive legislative competence of the federal government, while “ Citizenship in the Laender “became part of the competing legislative competence ( (1) No. 8 GG). According to this, the states were responsible for legislation, unless the federal government made use of its legislative right. During this time, the federal government could have regulated state citizenships by means of federal law and thus repealed Art. 6 BayVerf. However, the federal government has never made use of its legislative right.
Rather, Art. 74 (1) no. 8 GG was repealed with effect from December 31, 1994. However, this should not change anything in the basic coexistence of two nationalities. As evidenced by the official justification for the amendment to the Basic Law, the decision on establishing a state citizenship should now be left exclusively to the states. The federal government has only waived its legislative right and transferred the matter to the exclusive legislative competence of the states (Paragraph 1 of the Basic Law), but did not want to exclude state citizenship laws in future.
The Federal Citizenship Act only regulates (entire) German citizenship. Art. 6 BayVerf has not expired under the Basic Law (“ Federal law breaks state law .”), But continues to apply de jure as state constitutional law.
Practical use of Bavarian citizenship today
Bavarian citizenship is currently - unlike when the Bavarian Constitution came into force on December 8, 1946, when there was still no German nationwide state - suspended, i.e. H. thus de facto currently without relevance for the citizens of the Free State of Bavaria, which has been a partially sovereign member state of the Federal Republic of Germany under international law since 1949 . Their citizenship is also decisive for Bavaria.
Bavarian citizenship currently has no practical consequences outside or within the state. In its judgment of March 12, 1986, the Bavarian Constitutional Court ruled that Bavarian citizenship had been reintroduced as an institution by Art. 6 BayVerf. Concrete granting of Bavarian citizenship to certain persons is not possible as long as no implementing law in accordance with Art. 6 (3) BayVerf is passed on Bavarian citizenship. At the same time, the court pointed out that any Bavarian law may not grant Bavarian citizenship to persons who are not also Germans within the meaning of the Basic Law. The federal principle anchored in the Basic Law precludes the group of nationals from being larger than the group of Germans. A law on Bavarian citizenship could only contain restrictive regulations as to which Germans within the meaning of Article 116.1 of the Basic Law were also Bavarian citizens within the meaning of Article 6.1 BayVerf and which were not.
In another case, in which the complainant claimed German and Bavarian citizenship, the Bavarian Constitutional Court decided that there was no need to go into this in more detail. Because the complainant could in no way invoke that constitutional norm because no subjective rights could be derived from it, at least as long as the nationality law provided for in Art. 6 (3) BayVerf had not yet been passed . This decision makes it clear that for the time being the individual has no way of benefiting from the formal continued existence of Bavarian citizenship.
In 2013, the Constitutional Court ruled that the acquisition (or loss) of Bavarian citizenship "was not enforceable, since the law provided for in Art. 6 Para. 3 BayVerf was not enacted. The reason for this is that the provisions of the Bavarian Constitution of 1946 on Bavarian citizenship have lost their significance with the inclusion of Bavaria in the Federal Republic of Germany (...). "Further:" Citizens within the meaning of Art. 7 Para. 2, Art 12 para. 3 sentence 1 BayVerf is everyone who has German citizenship according to Art. 16, 116 GG and lives in Bavaria. According to this case law, foreigners can not be citizens (...). "
Development of state citizenship in the other federal states
Art. 53 of the constitution of the state of Baden of May 18, 1947 contained regulations on Baden citizenship . Article 6 of the constitution for Württemberg-Hohenzollern of May 18, 1947 also provided for a regulation of nationality. With the entry into force of the constitution of the state of Baden-Württemberg on November 11, 1953, these constitutions were repealed.
Incidentally, none of the other federal states has included regulations on state citizenship in its constitution, although many state constitutions are still pre-constitutional (enacted before the Basic Law came into force). No state citizenship laws have been passed either. In the official justification for the abolition of Article 74, Paragraph 1, No. 8 of the Basic Law, it was pointed out that the abrogated provision had no practical significance and that no negative effects for the federal government due to the abolition of the regulation were to be feared, since the states in could not regulate nationality in the federal government.
- Oskar Tschira: Bavarian nationality? BayVBl. 1955, p. 261.
- Hans-Peter Mayer : Citizenship in Bavaria , Diss. Würzburg 1974.
- Helmut Kalkbrenner : A state without citizens , BayVBl. 1976, p. 714.
- Roland Bornemann: The Bavarian Citizenship , BayVBl. 1979, p. 749.
- Reinhard Gremer: The Bavarian citizenship , BayVBl. 1981, p. 527.
- Roland Bornemann: The Bavarian citizenship , (reply to Gremer) BayVBl. 1982, p. 590.
- Ingo von Münch : The German citizenship. Past - Present - Future , Berlin 2007, p. 82 ff.
- Bavarian State Parliament: Bavarian Constitution
- Bavarian Constitution of 1946 (text of the original version without changes)
- Commentary on Zeit Online : Weißblau auf der Sonderweg (accessed December 5, 2009)
- Edict on indigenous people, citizenship rights, the rights of forums and foreigners in Bavaria in the Google book search
- “ What is that: a Bavarian? “, The time of August 10, 1962; Stenographic report of the 81st meeting on April 3, 1952, p. 1088 ( PDF ).
- Interior Minister Hoegner in the Landtag, stenographic report of the 117th meeting on November 25, 1952, p. 375 ( PDF ).
- BayVGH, BayVBl. 1959, p. 59; BayVerfGE 12, p. 171.
- Stenographic report of the 120th meeting of May 22, 1962, p. 3793 ( PDF ); “ What is that: a Bavarian? “, The time of August 10, 1962; " Time to drill "; Der Spiegel from April 29, 1964.
- EH, Munich: Bavarian Souvenir - The Debacle About Citizenship , in: The time of October 15, 1965.
- Law of October 27, 1994 (Federal Law Gazette I p. 3146).
- BT-Drs. 12/6633 , re no. 6 a (p. 9), PDF; 601 kB
- BayVerfGH, ruling v. December 15, 1959 - Vf. 7-VI-59 -.
- BayVerfGH, ruling v. March 12, 1986 - Vf 23-VII-84 - .
- BayVerfGH, ruling v. October 1, 1965 - Vf. 52-VI-65 -.
- Decision of the Bavarian Constitutional Court of June 12, 2013, Az .: Vf. 11-VII-11 ( online ( memento of January 10, 2014 in the Internet Archive )).
- Constitution of the state of Baden from May 18, 1947.
- See the constitution for Württemberg-Hohenzollern of May 18, 1947 .
- Art. 94 para. 2 of the constitution of the state of Baden-Württemberg
- BT-Drs. 12/6633 , re no. 6 a (p. 9) (PDF; 601 kB).