The European Court of Justice Evaluates Italian Citizenship iure sanguinis
The recognition of Italian citizenship iure sanguinis is experiencing a crucial moment before the Community justice system following the Constitutional Court’s decision to refer the matter to the Court of Justice of the European Union (CJEU). Through Ordinance No. 147/2026, the Consulta suspended the constitutional review of the controversial Law 74/2025 to formulate a preliminary question on the compatibility of the new Article 3-bis of Law 91/1992 with Articles 9 of the Treaty on European Union (TEU) and 20 of the Treaty on the Functioning of the European Union (TFEU). This procedural milestone, driven by the technical defense led by lawyer Graciela Cerulli, transfers the debate on the fundamental rights of the diaspora to the highest court in Luxembourg.
The Origin of the Referral: Case C-816/26 and the Defense of the Diaspora
The Community controversy, registered in Luxembourg under case C-816/26, arises from a procedural strategy designed to safeguard the rights of descendants in the face of supervening legislative restrictions. The main proceedings originated at the Campobasso Court through the lawsuit filed by Argentine siblings A.L.A and J.L.A, represented at first instance by lawyer Graciela Cerulli, founding partner of Studio Cerulli Arena.
In examining the case, Judge Rossella Casillo issued Ordinance No. 40/2026 questioning the constitutionality of Law 74/2025 (stemming from the conversion of Decree-Law 36/2025), which sought to drastically limit the generational transmission of citizenship. During the subsequent public hearing before the Constitutional Court, the oral defense by lawyer Marco Mellone argued the imperative need to consult the Luxembourg judges before validating a regime that severs consolidated rights.
The Consulta accepted this argument and issued Ordinance No. 147/2026, suspending the domestic proceedings. With this step, the litigation over Italian immigration reform transcended the purely national sphere to position itself within the framework of European Union supranational law. Those wishing to explore the arguments debated in court can consult the session in this live analysis of the constitutional hearing.
Compatibility of Article 3-bis with Articles 9 TEU and 20 TFEU
The preliminary question referred by the Constitutional Court directly asks whether Articles 9 TEU and 20 TFEU preclude national legislation that establishes an original exclusion from acquiring nationality for persons born abroad, before the entry into force of said reform, who possess another nationality.
The core of the legal conflict lies in the intrinsic relationship between the citizenship of a Member State and European citizenship:
- Article 9 of the TEU: This provision enshrines the principle of democratic equality of all Union citizens, guaranteeing that no person subject to the Community legal order is arbitrarily deprived of the status derived from their fundamental legal bonds.
- Article 20 of the TFEU: Establishes Union citizenship as a fundamental status conferred on every person holding the nationality of a Member State, granting essential freedoms such as free movement, the right of residence, and international diplomatic protection.
Although Community jurisprudence traditionally recognizes that defining the conditions for acquisition and loss of nationality falls within the exclusive competence of each Member State, landmark CJEU rulings (such as the Rottmann, Tjebbes, and Wiener Landesregierung judgments) have established an insurmountable limit: States must exercise this power while fully respecting European Union law and the principle of proportionality.
Article 3-bis of Law 91/1992 establishes an indiscriminate preclusion that de facto strips thousands of people of their civic status without individualized assessment or weighing of the material consequences that such deprivation entails for their Community rights.
The Declaratory Nature of status civitatis versus Retroactivity
One of the dogmatic pillars supporting the legal defense of descendants is the strictly declaratory nature of Italian citizenship recognition. According to Italian legal tradition and the reiterated doctrine of the Supreme Court of Cassation, the status of citizen iure sanguinis is acquired automatically at the very moment of birth, provided the chain of biological transmission has not been interrupted by voluntary renunciation or prior extinguishing naturalization of the ancestor.
This implies that judicial rulings or consular registrations do not create the right from the moment of judgment, but formally ascertain a pre-existing legal quality. By attempting to consider that those born abroad with another nationality never acquired Italian citizenship, Law 74/2025 incurs in destructive retroactivity of the status civitatis, violating legal certainty and legitimate expectation.
To overcome this type of barrier and ensure a solid case file, it is essential to carefully examine both the requirements for Italian citizenship by descent and the proper legalization and congruence of documents for Italian citizenship by descent. The evidentiary solidity of civil status records is the technical foundation that supports the permanence and imprescriptibility of said status against hostile legislative changes.
Legal Concept: Comparison Between Regimes
| Legal Concept | Historical Regime of Law 91/1992 | Intended Impact of Law 74/2025 | Challenge before the CJEU (Case C-816/26) |
|---|---|---|---|
| Birth of the Right | Automatic at the moment of birth (ex tunc). | Conditioned and limited to two generations in the absence of residence. | Violation of original acquisition and related Union rights. |
| Effect of Recognition | Declaratory: confirms a pre-existing and imprescriptible status. | Covert constitutive: eliminates the right for lack of prior application. | Disregard of consolidated civic status without individualized examination. |
| Effect of Possessing Another Nationality | Fully compatible; general admission of dual citizenship. | Ground for exclusion or preclusion for those born outside Italy. | Incompatibility with the free development of Union citizenship (Art. 20 TFEU). |
| Temporal Character | Temporal validity without retroactivity on biological birth. | Retroactive application to those born before promulgation. | Breach of the principle of proportionality and certainty of Community law. |
The Proceedings in Luxembourg and Implications for Ongoing Cases
With the notification sent on August 26, 2026 in case C-816/26, the Registry of the Court of Justice of the European Union formally opened the written phase of the preliminary ruling procedure. Under Article 23 of the Statute of the Court and Article 51 of its Rules of Procedure, a non-extendable period of two months and ten days (70 days in total) was granted for the parties involved to submit their written observations.
During this key period, the case remains open not only to the original parties of the Campobasso litigation, but also to the formal intervention of the 27 Member States of the European Union, the European Commission, and other empowered Community institutions. The positions established by these actors will determine the interpretative weight of the preliminary question on the balance of competence between state sovereignty and European citizenship.
For applicants currently processing their citizenship through judicial means in Italy, this scenario confirms the need to sustain proceedings with maximum procedural rigor:
- Italian ordinary courts hearing appeals through judicial routes or for lack of consular appointments may order the suspension of their cases due to Community preliminary questions, preserving applicants’ rights intact until the Court resolves.
- Claims formalized judicially remain protected against the consolidation of restrictive interpretations by the Italian public administration.
- The judicial route is ratified as the only effective procedural tool to counter consular inaction and subject the validity of the reform to constitutional and Community legality review.
Legal Strategy and Effective Protection with Studio Cerulli Arena
The path toward clarification of the rights of Italian descent requires specialized technical defense in Private International Law and cross-border litigation. The international firm Studio Cerulli Arena boasts more than 50 years of uninterrupted trajectory assisting the Italian community worldwide, with a consolidated binational structure through its main offices in Buenos Aires (since 1972) and Milan (since 1989).
With a leadership team headed by lawyer Graciela Cerulli, directly involved in the instances that elevated this debate before the Constitutional Court and the Court, the firm manages comprehensive remote proceedings without requiring the physical relocation of the interested party to Italian territory. This remote working modality allows for integral management of each stage of the process, from the reconstruction and rectification of complex civil status records to legal representation before competent courts and the subsequent registration of citizenship in municipal civil registries.
The opening of the debate in Luxembourg confirms that the recognition of Italian citizenship iure sanguinis is not a concession dependent on contingent reforms, but an original status protected by guiding principles of the European Union. The articulation of rigorous defense remains the indispensable path to protect the civil legacy of families in the diaspora.