In the present case, the child was born in Austria before 2013 to an Austrian mother and a Portuguese father. The parents were not married, but paternity was recognised in the immediate vicinity of the birth. At a time when the person concerned was still a minor, the parents had the birth entered in the Portuguese civil status register.
In the declaratory proceedings initiated by the Austrian citizenship authority, the authority had to examine whether this registration of an Austrian citizen in Portugal led to the loss of Austrian citizenship.
The regulation on the acquisition of Austrian citizenship by descent in § 7 Citizenship Act as amended by Federal Law Gazette No. 311/1985, which was in force on the day of birth, reads as follows:
§ 7. (3) Illegitimate children acquire citizenship at birth if their mother is a citizen at that time. Para. 1 lit. b applies mutatis mutandis.
The acquisition and loss of Portuguese nationality is governed by Portuguese Citizenship Act No. 37/81, which came into force on 3rd October 1981. This law provided the following provisions for the acquisition of Portuguese nationality, which are relevant in this case:
Nationality Act of 3 October 1981 as amended on 22 June 2015
Title I - Recognition, acquisition and loss of nationality
Chapter I - Acquisition of nationality
Art 1 Original nationality
(1) Portuguese nationals with original nationality are
a) children born on Portuguese territory to a Portuguese mother or father;
b) children born abroad to a Portuguese mother or father, if the Portuguese parent is in the service of the Portuguese state;
c) children born abroad to a Portuguese mother or father, if they have their birth registered in the Portuguese civil status register or declare that they wish to be Portuguese; (...)Chapter V - Effects of the granting, acquisition and loss of nationality
Art 11 Effects of recognition
Recognition of Portuguese nationality takes effect from birth, without prejudice to the validity of legal relationships previously established on the basis of another nationality.
As the person concerned was not "born on Portuguese territory" and the parents were not "in the service of the Portuguese state", the question arose as to whether an act pursuant to Art 1 para 1 lit c 1st case of the Portuguese Citizenship Act, which led to the acquisition of Portuguese nationality, caused the loss of Austrian nationality.
A correct legal analysis of the Portuguese legal situation shows that Art. 1 para. 1 of the Portuguese Citizenship Act regulates an original acquisition of nationality, i.e. an acquisition by descent. The fact that, in the case of children born abroad to a Portuguese national, the prerequisite for acquiring nationality is the notarisation of the birth, i.e. entry in the civil status register, does not preclude this. The notarisation of birth, i.e. the registration of a person in the civil status register, is not an act "aimed at the acquisition of nationality", even if it does lead to such an acquisition. On the other hand, the purely administrative requirement of such registration is also completely understandable, especially as in the case of a foreign birth, the authorities of the home country would otherwise have no documentation of the existence of this person (who is their national).
Similarly, in certain constellations (e.g. in the case of children born out of wedlock, if the father has Austrian citizenship), the Austrian Citizenship Act requires the parents to take active steps to establish the child's original citizenship by descent. It should also not be overlooked that Art 1 para 1 lit c of the Portuguese Citizenship Act expressly contains two different procedures, namely either
- the registration of the birth in the Portuguese civil status register or
- the submission of a declaration of intention to be Portuguese.
While the second case is likely to be regarded as an "act aimed at acquiring foreign nationality", this is not the case when the birth is merely entered in the civil status register. The fact that the registration of the birth in the present constellation entailed the acquisition of Portuguese nationality does not change this.
Based on the opinion of the person concerned represented by the attorney-at-law Balazs Esztegar in the declaratory proceedings, the citizenship authority ultimately came to the same conclusion and stated in its declaratory decision that the person concerned has Austrian citizenship and, in particular, has not lost it as a result of registering in Portugal.