A Rupture with History: Italian Citizenship and the “ Genuine link ” Doctrine - Ruling 63/2026

The negative decision, anticipated through a press release — to general surprise on the day following the hearing of March 11 — in the field of Italian citizenship, has now been formally articulated.

On Thursday, April 30, the Constitutional Court made public judgment no. 63/2026, in which it rules, for the first time, on the question of constitutionality raised by the Court of Turin concerning the controversial Article 3-bis of Law no. 91/1992, as introduced by the so-called “Tajani Decree”.

As early as July of last year, in this very column, we had observed that the Tajani Decree and Law no. 74, which ratified it, were legally vulnerable.

Such a conclusion stemmed from the clear principles affirmed by the Constitutional Court itself in judgment no. 142/2025, whereby challenges to the constitutionality of the system of uninterrupted transmission of citizenship by descent (ius sanguinis) — raised by several Italian courts on the grounds of an alleged lack of a “genuine link” with Italy — had been rejected.

On that occasion, the Court categorically stated:

“the applicable law has emphasized that the status civitatis, grounded in the bond of filiation, possesses a permanent, imprescriptible nature and may be asserted at any time, requiring only proof of the constitutive fact, namely, birth to an Italian citizen.”

In clear legal terms, the mere fact of being born to an Italian citizen — irrespective of the place of birth — entails the automatic acquisition of citizenship, with proof of such birth being sufficient. Furthermore, this original right is permanent, imprescriptible, and exercisable at any time, without any requirement that prior generations must have sought its recognition.

Imprescriptibility — it bears emphasis — means that no law and/or decision of any kind may limit or extinguish the right to recognition of Italian citizenship.

Accordingly, the right to Italian citizenship is acquired in a full and perfect manner at birth, while administrative or judicial recognition is merely declaratory in nature and not constitutive.

However, Article 3-bis, introduced by the Tajani Decree, has come into direct conflict with these well-established principles of constitutional jurisprudence and the so-called “living law” of the Court of Cassation.

In particular, it has created an arbitrary divide between those who applied for recognition of citizenship before March 28 and those who did not, treating the latter as if they had “never” been Italian citizens, notwithstanding their qualification under ius sanguinis.

Judgment no. 63/2026 upholds this legislative framework and marks a turning point in the Italian legal system concerning citizenship by descent. It introduces and consolidates the doctrine of the so-called “effective or genuine link”, thereby justifying — more in political than strictly legal terms — the contested legislative amendments.

In this context, the judgment refers to “a multitude of foreign citizens holding an Italian ‘virtual’ citizenship, unverified and capable of being activated without temporal limitation.” It further, and repeatedly, describes “an enormous mass” or “a multitude of foreign citizens”, portrayed as “detached from the territory”, “lacking an effective link”, or “substantially alien to the national community.”

Such language is far from neutral: it contributes to the devaluation of the original right to citizenship, reducing it to a conditional expectation.

A significant conceptual shift thus emerges:

citizenship exists from birth, but requires verification in order to produce legal effects.

The Court deliberately shifts the focus from substantive right to formal recognition, in order to legitimize changes that affect rights previously regarded as imprescriptible.

A person born to an Italian citizen acquires a full and intangible right at birth, as previously established. However, in 2026 the Court does not formally deny this principle, but effectively deprives it of practical force by implicitly asserting that the right lacks operability absent formal legal recognition.

This reinterpretation breaks with over a century of legal tradition grounded in ius sanguinis, weakening the very notion of an acquired right.

The most critical aspect of the judgment lies in its recharacterization of the legal position without explicit acknowledgment or adequate justification: a shift from a full and imprescriptible right to a status subject to verification, without clear or reasonable grounds.

As the judgment itself acknowledges:

“the leitmotif of the Tajani reform is the principle of effectiveness, namely the requirement that citizenship be reserved to those who are bound to the Republic by ‘effective links’.”

This approach reflects, in essence, a legislative policy choice: to reduce the number of Italian citizens born abroad in favor of those deemed more closely connected to the national territory.

The Court further justifies the retroactive application of the law, stating that:

“in the Italian case, a remedy limited to prospective application would have left unresolved the very issue the reform sought to address”, and that “the objective of the decree would have been frustrated without its application to the past.”

However, it is not the role of the Constitutional Court to validate the policy objectives of legislation, but rather to assess its constitutionality. By justifying retroactivity on the basis of legislative effectiveness, the Court adopts a teleological reasoning aligned with political objectives, thereby departing from its function as a guarantor and limiting authority.

The true core issue of the Tajani Law is its retroactivity, which entails the generalized elimination of fully vested rights to citizenship, already incorporated into the legal patrimony of millions of individuals.

As noted by Sabino Cassese, former judge of the Constitutional Court, such a body must be inherently counter-majoritarian, independent from political majorities and committed to the protection of fundamental principles.

The Constitutional Court is not a political organ, but rather a “judge of the laws”, tasked with overseeing the legislature and the executive, not with assisting them in the pursuit of political ends.

Judgment no. 63/2026 appears to mark a shift in institutional role: from guardian of individual and constitutional rights to legitimizer of a controversial legislative policy.

This scenario inevitably opens new avenues of litigation. The matter has already been considered by the Court of Cassation, which convened on April 14, and it will be necessary for it to clarify the scope of these new doctrinal developments. It is also foreseeable that, in light of this judgment, the issue may reach the European jurisdictional level.

Those who were recognized as Italian citizens prior to the Tajani Law — including those born abroad — or who initiated judicial or administrative proceedings before March 28, may remain reassured: their rights and Italian citizenship remain unaffected.

From a practical standpoint, the judgment confirms the validity of the Tajani Law, thereby creating a significant and presently difficult obstacle to access to citizenship for millions of individuals.

Nevertheless, the analytical weaknesses of the ruling do not bring the legal debate to a close, nor do they preclude the possibility of further judicial challenges arising from the interpretation of both the law and the judgment.

Most strikingly, however, the endorsement of the “genuine link” criterion may, within a few years, lead to the progressive disappearance of so-called “Italians abroad”, with consequences not only of a legal nature, but also economic, cultural, and in terms of Italy’s international projection.

Pablo Munini – Lawyer admitted to the Buenos Aires Bar