For many people it seems to be self-evident that children of Austrian citizens in any case also acquire Austrian citizenship by descent. In fact, the regulation in the law today, which contains an equalisation of legitimate and illegitimate children, is the result of a gradual adaptation of this acquisition status to the changing social circumstances over the decades.
For a long time, the Citizenship Act (StbG) also differentiated between legitimate and illegitimate children. According to Sec. 3 StbG 1949, legitimate children could acquire citizenship by descent only after the father. Only if the father was stateless was it possible for legitimate children to acquire citizenship after the mother. In contrast, illegitimate children could initially only derive citizenship from the mother, but not from the father, unless they were legitimised - through the subsequent marriage of the parents. This legal situation was essentially continued in Sec 7 StbG 1965. A change did not take place until 1983: from that time onwards, at least legitimate children could derive citizenship from the father's or mother's side. In the case of children born out of wedlock, the acquisition of Austrian citizenship by descent continued to be based exclusively on the mother (except in the case of subsequent legitimation).
In order to give persons born in wedlock whose mother (but not the father) possessed citizenship at the time of birth and who, as a result of the previous regulations, did not acquire citizenship by descent, the possibility to remedy this circumstance, the legislator created a transitional period of 3 years during which these persons could acquire citizenship if they indicated in writing to the authorities that they wished to belong to the Republic of Austria as citizens. A second such transitional period of 9 months existed in 2011.
It was not until a decision of the Constitutional Court in 2013 that another change was made, which led to the current regulation in § 7 StbG 1985: According to this, it is no longer fundamentally important whether a child is born in wedlock or out of wedlock, and both children born in wedlock and children born out of wedlock can acquire citizenship from the father's or the mother's side. However, if the child is born out of wedlock and only the father has Austrian citizenship, an acknowledgement of paternity or a judicial determination of paternity must be made within 8 weeks of birth for the child to acquire citizenship by descent.
Since not all persons concerned have made use of the two aforementioned transitional periods, the unequal treatment of this regulation is occasionally raised as an issue. In fact, however, events relevant to citizenship law (here: birth) are in principle to be assessed according to the legal situation at the time of the event, as case law also unequivocally states.
The Süddeutsche Zeitung reported on such a case in its issue of 16/17 September 2023. Balazs Esztegar, lawyer specialising in citizenship law, explained the legal context and the development of the provisions in Austrian law on the acquisition of citizenship by descent.