Analysis | Italianism

Sending the question of Italian citizenship to Court of Justice of the European Union It was not a spontaneous initiative of the Constitutional Court.

Na Ordinance No. 147/2026The consultation, filed this Thursday, July 23, notes that the parties have again requested, both in writing and at the public hearing, a preliminary ruling from Luxembourg to clarify the compatibility of Article 3-bis of Law No. 91/1992 with European Union law.

The move had a clear legal explanation.

A few months earlier, in Sentence No. 63/2026The Constitutional Court had dismissed the central issues raised against the new law. Some were deemed inadmissible, and others, including those relating to Articles 2 and 3 of the Constitution and Articles 9 TEU and 20 TFEU, were dismissed. At that time, the Court itself refused the request for referral to the CGUE.

With the Italian constitutional landscape narrowing, the European front gained importance.

For this analysis, the Italianism He consulted lawyers who work in matters of Italian citizenship and examined the precedents cited by the Constitutional Court itself and the Court of Justice of the European Union.

What changed between Sentence 63 and Ordinance 147?

There is an essential distinction here.

The Constitutional Court He has not changed his opinion on the merits of the law..

In Ordinance 147, it reaffirms that it continues to consider the interpretation adopted in Sentence 63 to be correct. According to the Consultation, Article 3-bis did not remove rights linked to a legally certain European citizenship because, for the recipients of the new rule, the status of Italian citizen had not yet been formally recognized.

Even while maintaining this position, the Court decided to send the case back.

The justification is expressed in the decision: in respect of the principle of loyal cooperation and the competence of the CGUE to provide the definitive interpretation of Union law, the Court decided to grant the requests repeated by the parties.

This makes Ordinanza 147 an important procedural victory for the defense, but not an endorsement of its argument by the Constitutional Court.

What will Luxembourg really have to decide?

It is also important to define the scope of the process.

The Constitutional Court did not ask generically whether the Italian citizenship reform is fair, constitutional, or retroactive.

The criterion is much more precise.

Luxembourg will have to say whether Articles 9 TEU and 20 TFEU prevent legislation such as Article 3bis, which establishes a “preclusione originaria all'acquisto” Italian citizenship for people born abroad, even before the new law came into effect, when they hold another citizenship and do not fall under the exceptions established by the legislator.

Therefore, the CGUE will not directly decide whether Article 3bis is "unconstitutional." It will interpret EU law. After Luxembourg's response, the case will return to the Italian Constitutional Court, which will have to decide in light of that interpretation.

Where is the defense's bet?

The central point is how Italy legally structured the reform.

Article 3-bis does not state that a particular person "loses" Italian citizenship. The law stipulates that they are considered to be someone who He never acquired it..

Judgment 63 expressly classified the rule as a "preclusione originaria all'acquisto," and not as a revocation or loss of citizenship. For the Constitutional Court, this difference is decisive.

That is precisely where the European problem arises.

Traditional EU case law mainly concerns individuals whose nationality in a Member State was recognized and subsequently lost, withdrawn, or jeopardized. In such cases, the loss of national identity may also mean the loss of Union citizenship, thus attracting the control of European law.

The Italian case is different.

But there is a legal tension that the defense intends to exploit.

Herself - Host Constitutional Court Sentence 63 recalled the case law of the Sezioni Unite da Cassazione according to which the status civitatis Based on lineage, citizenship is permanent, imprescriptible, and can be recognized at any time by proving the acquired status established by the birth of an Italian citizen.

The Consultation even stated that, under the previous regime, “the status is acquired at the moment of birth of an Italian citizen”although he added that, for those born abroad, this status requires administrative or judicial recognition before the person can concretely exercise the rights linked to citizenship.

It is during this period that much of the discussion in Luxembourg will take place.

The question is whether EU law will fully accept the Italian interpretation according to which someone who, under the legislation in force at the time of birth, met the requirements for citizenship by descent (jure sanguinis) can subsequently be treated as someone who "never acquired" that status, without this being legally equivalent to a loss of citizenship.

This answer does not yet exist in European case law.

And that is precisely why the Italian case is relevant.

European case law that enters into this discussion

The precedents below do not deal with Italian citizenship by descent. They deal with the limits that Union law can impose on Member States when their national citizenship rules affect European citizenship.

The relevance is not speculative: these cases are mentioned by the Italian Constitutional Court itself when examining Article 3-bis.

Rottmann, C-135/08, March 2, 2010

Janko Rottmann He was Austrian and acquired German citizenship through naturalization. As a result, he lost his Austrian citizenship. Subsequently, German authorities discovered that he had omitted information about an existing criminal investigation in Austria and decided to retroactively revoke his German citizenship.

The result could leave him stateless and, consequently, without Union citizenship.

The CGUE recognized the competence of States to regulate nationality, but established a fundamental principle: when a national decision results in the loss of Union citizenship, the exercise of this competence must respect European law and the principle of proportionality.

Relevance to Italy: It is considered a foundational precedent for EU law intervention in matters of nationality, but the facts are very different from Article 3bis.

Tjebbes, C-221/17, March 12, 2019

The process involved citizens with dual Dutch nationality and from third countries.

Dutch law stipulated that certain individuals would automatically lose their nationality after a prolonged period of residence outside the Netherlands and the European Union. Among the applicants was also a daughter whose situation fell under the rules applicable to minors.

The CGUE acknowledged that a State may link the preservation of nationality to the existence of an effective link. However, when the loss of national identity implies the loss of European citizenship, there must be a possibility of individual control over the consequences, including allowing, when necessary, the recovery of status with retroactive effect.

Relevance to Italy: This is high for proportionality, but again presupposes a citizenship that effectively existed before the loss.

Wiener Landesregierung, C-118/20, January 18, 2022

JY era Estonian citizen and lived in AustriaHe received a guarantee of naturalization from the Austrian authorities if he renounced his Estonian citizenship.

She resigned and became stateless.

After that, Austria revoked the promise of naturalization. Among the reasons were two administrative infractions committed after the guarantee was given, one relating to a vehicle inspection and the other for driving under the influence of alcohol, in addition to previous administrative infractions.

The CGUE understood that the entire procedure was covered by Union law and required respect for the principle of proportionality.

This case is interesting because it extends protection beyond the direct withdrawal of a nationality already granted. European law can also encompass a state procedure that concretely leads to the loss of Union citizenship.

Relevance to Italy: Intermediate, but conceptually important.

Udlændinge, C-689/21, 5 September 2023

This is probably the closest precedent to one of the arguments brought before the Constitutional Court.

The process involved a woman born in the United States, daughter of a Danish mother and an American father, who held both Danish and American citizenship from birth.

Danish law stipulated the loss of nationality at age 22 for certain citizens born abroad who had never resided in Denmark nor demonstrated sufficient ties to the country. The applicant requested the retention of her citizenship after turning 22.

The CGUE considered admissible, in principle, a rule based on the absence of an effective link, but established a strong condition: there must be an opportunity, within a reasonable time, to request the retention or recovery of nationality and to obtain an individual assessment of the proportionality of the consequences. This period cannot begin to run without the person having been duly informed of the loss or its imminence and of the possibility of requesting a review.

Not by chance, the Campobasso Court specifically invoked this precedent when arguing that Article 3-bis would produce a "revoca ex tunc" without providing a reasonable timeframe for the recognition of the status.

Relevance to Italy: This is too high a point for discussion on proportionality and transitional regimes, provided Luxembourg agrees to overcome the distinction between "loss" and "non-acquisition".

Stadt Duisburg, consolidated cases C-684/22 to C-686/22, April 25, 2024

The processes involved People of Turkish origin who became naturalized German citizens in 1999.To obtain German citizenship, they had renounced their Turkish citizenship. Subsequently, they voluntarily regained their Turkish nationality and, under applicable German law, automatically lost their German citizenship and, with it, their Union citizenship.

The CGUE considered that European law does not, in principle, prevent this automatic loss.

However, it demanded that there be a real possibility of individual proportionality review. This review can even take place in a preliminary procedure designed to authorize the retention of German nationality, provided that the mechanism is truly accessible and respects the rights derived from Union citizenship.

Relevance to Italy: High, but ambivalent. The ruling confirms both the margin for states to establish rules for loss of citizenship and the need for European control when Union citizenship is affected.

European Commission v Malta, C-181/23, 29 April 2025

Malta This is a precedent unlike any that came before.

The process was not about the loss of citizenship. The European Commission was questioning the Maltese program that allowed naturalization through predetermined payments and investments.

The Grand Chamber considered incompatible with Union law a system that was essentially transactional, transforming the granting of nationality of a Member State and, consequently, of European citizenship, into a form of commercialization. The Court highlighted the special relationship of solidarity and loyalty between the State and its citizens.

Care is needed, however, when transporting Malta into the Italian case.

The ruling did not decide that European law establishes a universal set of "genuine link" requirements that all States must apply to grant or retain nationality.

The Italian Constitutional Court itself uses Malta to argue that the 2025 reform reinforces the need for an effective relationship between citizen and State. In Ordinance 147, the Consultation even states that Article 3-bis would be consistent with the vision of citizenship expressed by the CGUE in the Maltese case.

Relevance to Italy: high, but currently it primarily favors the arguments of the Italian state.

The real knot of Luxembourg

European case law already answers one question: nationality remains within the competence of the Member States, but this competence is not immune to Union law when its use extends to European citizenship.

What she hasn't answered yet is the Italian question.

Can a State retroactively alter the conditions for acquiring citizenship and declare that people born decades earlier, who met the requirements stipulated by the legislation then in force, should be considered as if they had never acquired nationality, thus escaping European jurisprudence built on the "loss" of citizenship?

The Constitutional Court has answered, so far, in the affirmative.

The defense argues, in essence, that the material effect is more important than the name chosen by the legislator.

Luxembourg will now have to explain the extent of Article 20 TFEU.

This is the true scope of Ordinance 147. It is not a defeat of the new law, nor an anticipation that the CGUE will overturn it.

But the defense achieved something that Sentence 63 had refused: to bring before the Court of Justice the central question about the relationship between Article 3-bis and Union citizenship.

And this time, the answer will not be given in Rome.

Sources: Rottmann, C-135/08, Tjebbes, C-221/17, Wiener Landesregierung, C-118/20, Udlændinge, C-689/21, Stadt Duisburg, C-684/22 to C-686/22 e Commission against Malta, C-181/23.