Germany v Sch

Docket NumberCase No. 138
Date30 Noviembre 1923
CourtObsolete Court (Germany)
Germany, Reichsgericht in Civil Matters.
Case No. 138
Sch. (Effect of Option.)

Option of Nationality — Effect of — Whether Retroactive.

The Facts.—The plaintiff, a former Prussian railway official, was pensioned on 1 July, 1917. The part of Prussia where he resided was ceded to Poland as the result of the Peace Treaty. On 22 November, 1920, he opted for Germany; on 15 December of that year he left his place of residence and went to live in Köslin (Prussia); on 6 January, 1922, he made yet another declaration of option for Germany. He then received from the German authorities his pension for the period up to the end of 1920 in Polish currency. He brought an action asking for payment in German currency, and was successful before the Court of First Instance. He also won the appeal before the Upper District Court, which held that, although the plaintiff lost his German nationality as the result of the entry into force of the Treaty of Versailles on 10 January, 1920, the effect of his declaration of option was to restore to him his German nationality as from 10 January, 1920. The Court held that he must be treated as if he had never lost his German nationality, and that he was therefore entitled to receive his pension in German currency. On further appeal to the Reichsgericht,

Held: That the action must be dismissed, on the ground, inter alia, that the option had no retroactive effect in the sense contended by the plaintiff. Originally, the only object of the institution of option of nationality was to remove hardships resulting from an imposed change of nationality and, in deference to the increased recognition of the rights of human personality, to give effect to the right of the individual to determine with which State he wishes to be associated. This was the reason why option was given a retroactive effect, and why the change of nationality as the result of cession was regarded as subject to a condition subsequent with retrospective effect in the event of the exercise of the right of option. However, recent developments have enlarged the original purpose of option. Thus, for instance, Article 80 of the Treaty of St. Germain provided that “Persons possessing rights of citizenship in territory forming part of the former Austro-Hungarian Monarchy, and differing in race and language from the majority of the population of such territory...

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