Maarten Peter Vink and Gerard-René de Groot
citizenship of the Netherlands will be lost. But in the case of potential statelessness, he or she keeps this citizenship. Since 2003, Finland has a similar approach, although there the child retains Finnish citizenship after his or her fifth birthday (FIN 12(1)).
Belgium (BEL 10(2)), France (FRA 19), Germany (GER 4(2)), Moldova (MOL 11(2)), Portugal (POR 1(2) juncto 14), Slovenia (SLN 9); Spain (SPA 17(1)(d) juncto 17(2)) and Switzerland (SWI 6(3)) have similar regulations, but provide that the citizenship acquired by a foundling is lost if, during his minority, it is discovered that he is the child of foreign parents and would not become stateless. These provisions correspond precisely with the Convention.
In Austria (AUT 8(1)), Denmark (DEN 1(2)), Hungary (HUN 3(3)(b)); Iceland (ICE 1(3)), Ireland (IRE 10), Italy (ITA 1(2)); Luxembourg (LUX 1(2)), Malta (MAL 5(1), Norway (NOR 4(2)); Slovakia (SLK 5(2)(b); Sweden (SWE 2), Turkey (8(2)) and the United Kingdom (UK 1(2)) citizenship is also lost by a foundling if her or his descent is discovered after majority. That conflicts with the European Convention. Even though these provisions mainly concern the loss, rather than the acquisition of citizenship (see for a more extensive discussion and a comparative table De Groot and Vink 2010: 44-47), the fact that they condition the acquisition of citizenship for foundlings brings them within the scope of ECN 6(1)(b).
More explicitly problematic are the provisions in some countries that the acquisition of citizenship for foundlings only applies to new born infants. In view of the Recommendation 2009/13 the foundling provisions should apply – as far as possible – to all persons younger than 18 years. Austria, in particular, limits the foundling provision to infants under 6 months old (AUT 8(1). 14
Finally, whereas in all countries the acquisition of citizenship by foundlings occurs ex lege, in Estonia a child of unknown parents found in Estonia is declared on application of his guardian or a guardianship authority by a court decision to have acquired Estonian citizenship by birth unless the child is proved to be a national of another state (EST 5(2)). Although the absence of an automatic acquisition provision as such is problematic in light of the European Convention, the obvious declaratory character of the court decision and the absence of any discretionary power of the court leads to the conclusion that this regulation is in conformity with the ECN.
7.2 Persons who would otherwise be stateless (A03b)
The European Convention prescribes that each State Party shall provide in its internal law for its citizenship to be acquired by persons born on its territory who would otherwise be stateless. A state which does not grant its citizenship to potential stateless persons born on its territory ex lege has to grant the citizenship subject to only one or both of the following conditions: a) lawful and habitual residence on the territory of the state involved for a period not exceeding five years immediately preceding the lodging of the application, and b) absence of a conviction for a serious offence (ECN 6(2)). The citizenship of the country of birth has to
14 Austria made a declaration with respect to ECN 6(1)(b): ‘Austria declares to retain the right that foundlings found in the territory of the Republic are regarded, until proven to the contrary, as nationals by descent only if they are found under the age of six months.’
RSCAS/EUDO-CIT-Comp. 2010/8 - © 2010 Authors