Austrian Constitutional Court allows for distinguishing citizenship acquisition by children born to Austrian fathers in or out of wedlock

by EUDO CITIZENSHIP experts Joachim Stern and Gerd Valchars

The Austrian Constitutional Court (VfGH) announced today the annulment of Austria’s anachronistic and discriminatory denial of citizenship iure sanguinis to children of Austrian fathers born out of wedlock (Judgmenet of Nov 29, 2012, G 66/12-7, G 67/12-7). It largely followed the ECtHR’s legal opinion in the Case of Genovese v Malta (Judgment of 11 Oct  2011, No. 53124/09) by stating that the provisions requiring binational parents to be married at the time of birth were discriminatory under Articles 8 and 14 of the ECHR (§ 7 (1) and (3) of the Citizenship Act). The Court set a timeframe until 1 Jan 2014 for the judgment to take effect in order to allow the legislator to amend the law.

Inconsistently, it argued that there was an important difference between ‘legitimate’ and ‘illegitimate fathers’ which would pose a valuable ground for justifying that children born out of wedlock did not have to acquire citizenship at birth automatically but that in certain cases children could be required to ask for naturalisation, especially if the declaration or recognition of paternity did not take place immediately after birth (paras 40, 41 of the judgment). This alleged difference could be taken into consideration by the legislator. This opinion is at odds with the clear finding of the ECtHR not only in the Case of Genovese but with the permanent jurisprudence of the Strasbourg Court that “very weighty reasons would … have to be advanced before a difference of treatment on the ground of birth out of wedlock could be regarded as compatible with the Convention” (Case of Inze v Austria, 28 Oct 1987, No. 8695/79, para 41).

Read the full text of the judgment (in German)

Read a commentary in Der Standard (17 Jan. 2013) by Gerd Valchars and Joachim Stern (in German)