Mag. Balazs Esztegar LL.M.
Attorney-at-law Vienna

Piaristengasse 41/10
1080 Vienna, Austria
Tel. +43 1 997 4102
Fax +43 1 997 4102-99

Vienna Administrative Court restores Austrian citizenship

The complainant, who was born in Sweden to an Austrian father and a Swedish mother, was an Austrian and Swedish citizen and even performed his military service in Austria in 1989. In 2017, the Vienna Provincial Government as citizenship authority (Magistratsabteilung 35) confronted him with the fact that he had no longer been an Austrian citizen since 1977 and subsequently also refused to restore his citizenship as a putative Austrian. The complainant, represented by lawyer Balazs Esztegar, filed a complaint against this with the Vienna Administrative Court, which granted the complaint.

The complainant wanted to have an Austrian passport and citizenship certificate issued for his daughter on the occasion of her birth. The citizenship authority took this as an occasion for a declaratory procedure and found that the complainant had lost his Austrian citizenship in 1977. The complainant was still a minor at that time, but his Austrian father had himself naturalised in Sweden at that time, which caused the latter to lose his Austrian citizenship. Pursuant to section 29 of the Citizenship Act, this loss of citizenship also extends in some cases to minor unmarried children.

However, due to a mistake on the part of the authorities, the complainant continued to be listed as an Austrian citizen and was also continuously issued with up-to-date passports. In 1989, the complainant was even called up for basic military service in Austria, where he rendered outstanding services and even received a decoration.

In 2017, the Viennese Provincial Government as citizenship authority informed him that he had actually not been an Austrian citizen since 1977 and established the loss of citizenship by means of a declaratory decision. At the same time, the authority advised him to file a notification under section 57 of the Citizenship Act within 6 months:

§ 57. (1) A foreigner shall acquire citizenship under the conditions of section 10 (1) 2 to 6 and 8 and (2) 1 and 3 to 7 if he or she notifies the authority in writing with reference to this Federal Act that he or she has been wrongly treated as a citizen by an Austrian authority for at least the last 15 years and he or she is not responsible for this. In particular, anyone to whom a citizenship certificate, passport or identity card has been issued was treated as a citizen. The authority shall notify the foreigner in writing of the erroneous treatment as a citizen and inform him/her of the time limit for notification pursuant to para 2. The authority shall establish the acquisition by notification with retroactive effect as of the day on which the foreigner was falsely treated as a citizen by an Austrian authority for the first time.

This so-called "Putativösterreicher" ("wrongly treated Austrian") regulation enables the retroactive acquisition of citizenship for persons who, through no fault of their own, were wrongly treated as citizens by an Austrian authority, but it subsequently turned out that they were not citizens at all. The provision particularly covers those persons who have completed their military service or civilian service in Austria, such as the complainant. 

However, the authority rejected the notification submitted in due time pursuant to section 57 of the Citizenship Act (StbG), even though it had advised to do so itself. The Vienna Administrative Court ultimately corrected this incorrect legal assessment on the basis of the complainant's complaint, upheld him and declared that the complainant's notification had led to the acquisition of Austrian citizenship

In the case of a putative Austrian, this acquisition takes effect back to the time when he was first wrongly treated as a citizen by an Austrian authority - in the case of the complainant this was in 1987. Thus, his Austrian citizenship was restored retroactively since 1987.