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

Who can be a putative Austrian?

ZfV 2019/13, 131-135

The Citizenship Act (StbG) recognises in section 57 StbG a special case of acquiring citizenship by notification. Although the text of the law does not mention the term itself, legal doctrine and jurisprudence usually speak of putative Austrians. This includes cases in which someone was treated as an Austrian citizen by an Austrian authority through no fault of his or her own, although he or she does not actually possess citizenship.

In such cases, the person concerned should have the possibility to legitimise the "legal appearance" that has been falsely maintained over a long period of time and to acquire citizenship by notifying the citizenship authority if the prerequisites for the facts are met. 

In its ruling of 25th September 2018 on Ra 2017/01/0331, however, the Supreme Administrative Court (VwGH) restricted the scope of application of the putative Austrian rule in an incomprehensible manner, relying not least on the commentary on this provision in the Commentary on the Citizenship Act by Plunger/Esztegar/Eberwein [eds]. On closer examination, however, it is noticeable that the VwGH has imputed a legal opinion to the authors which they do not actually have and which is also not expressed in the commentary in this way.

HR Dr. Martin Plunger, Head of the Citizenship Department at the Office of the Tyrolean Provincial Government, and Mag. Balazs Esztegar LL.M., lawyer for citizenship law, have taken this decision as an opportunity to take a closer look at the putative Austrian in citizenship law in issue 2/2019 of the Zeitschrift für Verwaltung.