The Italian Constitutional Court upheld the law restricting citizenship by descent, but it applied European law selectively and merely postponed a debate that is likely to return. This is the argument made by the researcher. Elena Lenzi, PhD candidate in European Law at University of Bologna, under analysis in the European Litigation Review, regarding ruling 63/2026, published on April 30th.
According to the author, the decision "does not actually resolve the supranational problem, it only suspends it." The criticism focuses less on the outcome and more on the argumentative path followed by the court.
It is worth remembering that Giovanni Pitruzzella, rapporteur of judgment 63/2026, is part of the journal's scientific committee. Francesco Viganò, judge of the Constitutional Court, and Valeria Piccone, Counselor of the Court of Cassation, are also part of the journal's scientific committee.
What the Court decided
The case He arrived at the Court through the Court of Turin., which questioned the retroactive application of decree 36/2025, converted into law 74/2025, in light of articles 2, 3 and 117 of the Italian Constitution, the latter in reference to articles 9 of the Treaty on European Union and 20 and 21 of the Treaty on the Functioning of the EU.
The Court ruled that the challenges based on constitutional and European principles were unfounded. It declared inadmissible those that relied on international standards, such as the Universal Declaration of Human Rights and the European Convention on Human Rights.
The new rule has tightened the jus sanguinis (right of blood) principle. Under the current rules, those born abroad with another citizenship must prove recognition of their status or submit an administrative or judicial request by March 27, 2025, demonstrate descent up to the second degree from a citizen exclusively of Italian origin, or prove that their parent resided in Italy for at least two continuous years before their birth.
Lenzi notes that the cutoff date of March 27th predates the actual entry into force of the decree on March 29th. This detail, according to her, emphasizes the retroactive nature of the reform.
"Selective effectiveness"
The central theme of the article lies in the title chosen by the researcher, the idea of "selective effectiveness". (selective effectiveness)According to Lenzi, the Court resorted to the European concept of "legame effettivo". (permanent employment relationship) when it needed to legitimize the reform, and abandoned it when that same principle could have imposed stricter control.
The analysis notes that the Court refused to classify the change as a revocation of citizenship. The court preferred to speak of "preclusione originaria" (original preclusion). (original preclusion) from the acquisition of status, which, in his view, authorized a law of "proper retroactivity".
Lenzi considers this distinction formalistic and unclear. She points out that the boundary between loss, retroactive deprivation, and non-recognition becomes tenuous. The rule, she writes, not only regulates the future but establishes "from then on" that certain people are considered as never having acquired Italian citizenship.
The Malta case was used only partially.
One of the most detailed points of the analysis concerns the Commission's decision against Malta, judged by the Court of Justice of the EU in April 2025. This precedent directly examined a national citizenship acquisition regime and confirmed that the conditions for granting citizenship can also be controlled in light of European law.
According to Lenzi, the Italian Court valued this ruling "selectively." It borrowed vocabulary from it. "genuine link" to reinforce the legitimacy of the reform, but he did not mention it at the crucial moment, when he assessed whether European precedents were relevant to the case.
The author also refers back to decisions such as Rottmann and Tjebbes. Although they deal with loss of citizenship, she notes that the Court of Justice expressly stated that the criteria for acquisition, even if under the discretion of the States, fall under a "bound discretion," exercisable only with respect to Union law.
The contradiction regarding the forwarding
Lenzi's strongest criticism is directed at the refusal of preliminary rulings, the mechanism by which a national court asks the European Court of Justice to interpret EU law before making a decision.
The researcher describes a contradiction. On the one hand, the Court declared European case law "not relevant" because it dealt with the loss of citizenship. On the other hand, it considered that same case law clear enough to dispense with consulting Luxembourg.
According to the author, the decision oscillates between two incompatible planes. If the European issue were truly extraneous to the case, the dismissal should be based on its lack of relevance. If the jurisprudence were clear, the Court would have to indicate which precedent would constitute a... “acte éclairé”or demonstrate, as “acte clair”...that articles 9 and 20 of the treaties left no reasonable doubt.
Lenzi adds that precedents such as CILFIT and Remling not only list the grounds for exemption, but require a "specific and detailed justification." The ruling, according to her, invokes this jurisprudence without fulfilling the burden it imposes.
The author notes that the Court could have followed a different, more coherent path, such as upholding the Advocate General's argument in the Malta case, which held that defining acquisition criteria would be more firmly rooted in the competence of states. Even if debatable, she says, this approach would have made the refusal more understandable.
Why the debate might return.
The analysis concludes that the issue is not resolved with the ruling. Other cases concerning Article 3-bis remain pending, and a public hearing to discuss them took place on June 9th. The matter has also reached the United Sections of the Court of Cassation.
For the researcher, Nothing prevents a regular judge from directly taking the matter to the European Court of Justice.Citing the case of Malta, and opening a prejudicial dialogue in place of the Constitutional Court. For the public seeking recognition by descent, Lenzi's reading suggests that the final word on jus sanguinis has not yet been given.
A European Litigation ReviewThe organization that published the analysis has a scientific committee composed of leading judges. Among them are... John Pitruzzella, judge of the Constitutional Court and rapporteur of sentence 63/2026, Francesco Vigano, also a judge of the Constitutional Court, and Valeria Piccone, advisor to the Court of Cassation.
EXPLANATORY BOX
Harmful forwarding: As provided for in Article 267 of the Treaty on European Union, this allows a national court to ask the European Court of Justice for interpretations of EU law before ruling.
Acte clair e acte éclairé: situations in which the national court is exempt from consulting Luxembourg, either because the interpretation is obvious (acte clair), or because the Court of Justice has already decided the matter (acte éclairé).
Original preclusion: The concept used in the sentence indicates that the person concerned does not acquire citizenship, instead of losing it later.
Read the full analysis:
(Based on analysis by Elena Lenzi, PhD candidate in European Law at the University of Bologna, published in the Rivista del Contenzioso Europeo)
