Maarten Peter Vink and Gerard-René de Groot
child involved did not yet reach the age of seven at the time of recognition. Otherwise the biological truth of the recognition has to be proven by DNA-evidence. As an alternative for the required evidence, the recognized child can – under certain conditions- opt for Netherlands citizenship (NET 6(1)(c)). The Icelandic and Dutch substantive conditions (satisfactory evidence on the child and paternity, respectively DNA-evidence) are problematic in perspective of the European Convention which states that the procedure may be determined by internal law, which obviously does not allow the introduction of additional substantive requirements (ECN 6; see also principle 11 of Recommendation 2009/13).
3.3 Judicial establishment
In some countries the judicial establishment of paternity is expressly mentioned as a ground for the acquisition of citizenship (CZE 4; GER 4(1); GRE 2; HUN 3(2); ITA 2; NET 4; TUR 7(3)). In a considerable number of other countries, this ground for acquisition is covered by a general ius sanguinis provision: if descent is established, a child automatically acquires citizenship. Again, most countries provide that the judicial establishment has to take place during the minority of the child in order to have citizenship consequences ex lege. In Germany, the procedure regarding the judicial establishment of paternity must have been started before the 23rd birthday of the child.
For the Netherlands, it has to be mentioned that until 2003 a judicial establishment of paternity was not regulated in the Nationality Act as a ground for acquisition of citizenship, although the possibility of a judicial establishment of paternity was already introduced into Netherlands family law since 1 April 1998. However, courts in the Netherlands came already before 2003 to the conclusion that judicial establishment of paternity did have citizenship consequences because it was covered by the general provision that a child acquires Dutch citizenship a patre, if at the time of its birth the father possesses this citizenship (NET 3(1)).6
Finally, we should note some remaining provisions related to children born out of wedlock, born in a country or abroad.
In the Netherlands, a recognized or legitimized child of a Netherlands father also has the opportunity to acquire Netherlands citizenship by confirmation of a declaration of option after the father has cared for and educated him/her (‘verzorging en opvoeding’) for a period of three years (NET 6(1)(c)). Also compare this with the complicated regulation of the entitlement to naturalization of the child born out of wedlock of an Austrian father (AUT 12(d) and 17(1)(3) juncto 10(1)(1-8) and (2)). In Sweden, a Swedish father can register his children born abroad outside of wedlock as Swedish citizens before they reach the age of 18 (SWE 5). Since 2003, Finland provides that the child born out of wedlock of a Finnish father has an option right to Finnish citizenship if the father was Finnish at the moment of birth of the child and a) the child was born in Finland, but the paternity was established only after he or she had reached the age of 18 years, or b) the child was born abroad and the paternity has been established (FIN 26).
A special provision can be found in Spain, where the descent from a Spanish national established after majority creates an option right to Spanish citizenship to be used within two years after the establishment (SPA 17(2)). The same applies if the birth in Spain was
6 Because the Civil code of the Netherlands (Art. 207(5)) provides that a judicial establishment of paternity has retroactivity to the moment of birth, the conditions of NET 3(1) after the judicial establishment of the paternity have been fulfilled. See also ICE 2.
RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors