Many descendants hoped that the Court of Cassation would have the final say on the new citizenship law. With the ordinance 147/2026The Constitutional Court suspended its three consolidated proceedings. and referred the central issue to the Court of Justice of the European Union.To understand who decides what from now on, the Italianism She listened to lawyer Flavia Di Pilla, who knows the case well.
Italianism explains: the three courts
Before answering, it's helpful to separate the papers.
A Court of Cassation, including the United Sections, interprets ordinary law. (Law 555/1912 and Law 91/1992) It performs the function of nomophylaxis, that is, unifying jurisprudence among the sections. Its decisions are not effective on everyone. (“erga omnes”)However, they have a very strong practical influence on merit-based judges.
A Constitutional Court It judges the constitutional legitimacy of laws. When it declares a law unconstitutional, the decision applies to everyone and binds all Italian judges. (Article 136 of the Constitution and Article 30 of Law 87/1953)When the issue is deemed unfounded, as was done in ruling 63/2026, the rule remains in effect.
The new law will now be reviewed by the European Union's courts. And there are European precedents that strengthen the defense of descendants.
- New legal front opened
- Processes can still be filed.
- Individual analysis of your case.
A Court of Justice of the EU is the exclusive interpreter of Union law (Article 267 of the Treaty on the Functioning of the EU)The answer to the question of ordinance 147/2026 It will bind the Constitutional Court and, indirectly, all Italian judges.
After referral, who decides what? Can the United Sections still resolve ongoing cases?
According to Flavia Di Pilla, each side remains on its own ground. The European response, when it comes, will have the final say on the point that was raised.
“The answer given to the question in Ordinance No. 147/2026 will bind the Constitutional Court in the decision of the consolidated cases and, by virtue of the primacy of EU law, will also indirectly bind all Italian ordinary judges, who must apply the Luxembourg interpretation, even if they refrain from applying the domestic rule in cases where it proves incompatible,” he states. Italianism.
He points out that this primacy is not new. It has been “consolidated since the Simmenthal judgment of the Court of Justice (March 9, 1978, case C-106/77) and received by the Constitutional Court in the well-known Granital judgment (judgment no. 170, of June 5, 1984)”.
The Constitutional Court said the issue in the United Sections concerns the 1912 law. What can they resolve, and what is left out?
The lawyer limits the scope of the United Sections to matters of domestic law.
“What the United Sections can resolve, in practice, are purely domestic law issues, for example, transmission through the maternal line before 1948, the nature of recognition (declaratory or constitutive), and the requirements of articles 7, 8, 9 and 12 of Law 555/1912,” he explains.
The limit is clear. “Any decision involving the retroactivity of Article 3bis in relation to EU law is beyond their scope. That is the exclusive domain of the Consultation and the Court of Justice.” Even so, he sees a possible way out. “What could happen is that the United Sections identify a constitutionally oriented reading of the new law, allowing the judge an interpretation that does not cancel acquired rights.”
Can the Court of Cassation decide on points of domestic law without waiting for Luxembourg? Does this help or confuse things?
For Flavia Di Pilla, it's possible and desirable, with one caveat.
“Yes, they can decide without waiting for Luxembourg, because it is a distinct matter. It helps more than it confuses, provided that the judges on the merits understand the distinction and do not try to extend the reasoning of the United Sections to the problem of retroactivity, which is another issue.”
If the United Sections decide first, can the Court of Justice later overturn it? Is the descendant then held hostage to conflicting decisions?
The Constitutional Court's decision changed the landscape. The new citizenship law will now be reviewed by the European Union's courts of justice.
The lawyer dismisses the direct contradiction, but warns of a practical effect over time.
“Technically, there is no possible contradiction, because they are different objects: the United Sections decide on the ordinary law of 1912, the Court of Justice decides on the European compatibility of Article 3bis. But, in practice, there is a real risk of indirect overlap. A case that has both problems together, maternal lineage prior to 1948 and birth before 2025, may receive a partial answer from the United Sections and remain in limbo as to the rest.”
The descendant, she says, could be caught in two procedural timelines. "The domestic law aspect is resolved now, but the final outcome remains contingent on Luxembourg's response, which could mean months or years of additional waiting even after a partial victory in the United Sections."
And he points to where this should appear first. “I believe this could happen in the many appeals that are starting now. The appeals court will likely suspend the trials pending the ruling of the Court of Appeals.”
In summary, what the Cassation process can and cannot do.
The lawyer breaks down the response into two parts.
"Regarding the interpretative question of the 1912 law, the United Sections may decide freely, and this decision will have full effect of standardization. The referral to Luxembourg does not prevent them from doing so."
Regarding the other aspect, power is limited. “Regarding the retroactivity of Article 3bis and its compatibility with Union law, the United Sections do not have the power to make a final decision. This is precisely the issue that is simultaneously sub judice before the Constitutional Court, which has already ruled once in judgment 63/2026 but reopened dialogue with Luxembourg, and now before the Court of Justice.”
The conclusion is one of caution. "If a specific case raises this particular issue, the judge, including the Court of Cassation itself, should the case reach that stage, should coherently suspend or await the proceedings, and not decide in contradiction with what is pending. Now we just have to wait and see what the judges will do from now on."
