A Shift Towards Europe .Constitutional Court Order No. 147/2026 Refers the Future of Italy's Citizenship Reform to the Court of Justice of the European Union

Order No. 147/2026 of the Italian Constitutional Court marks a turning point in the debate over Italy's new citizenship legislation.

By its decision of 9 June, published on 23 July, the Court stayed the proceedings concerning the challenge to the constitutionality of Article 3-bis of Law No. 91/1992 and referred a preliminary question to the Court of Justice of the European Union (CJEU).

Despite the reservations expressed in Judgment No. 63/2026, the Court appears to have made a concession rather than changed its legal position, accepting that the dispute should now be examined within the framework of European Union law. It will therefore be for the Court sitting in Luxembourg to determine whether the contested Article 3-bis of the Tajani Law is compatible with Article 9 of the Treaty on European Union (TEU) and Article 20 of the Treaty on the Functioning of the European Union (TFEU).

A Departure from Judgment No. 63/2026

The decision is particularly significant because it departs from the approach adopted by the Court only three months earlier.

In Judgment No. 63/2026, delivered on 30 April, the Constitutional Court had expressly rejected the request to refer the matter to Luxembourg.

"The purpose of the case-law of the European Union is to protect Union citizenship as the fundamental status of nationals of the Member States. That purpose is not applicable in the present case because none of the persons affected by the contested Article 3-bis had, as a matter of law, acquired the status of a citizen of the Union."

Order No. 147 itself recalls that precedent and even states that the Court continues to regard that interpretation as correct.

Nevertheless, the Order identifies the legal basis for its new procedural approach. Within the framework of the principle of sincere cooperation between national and European courts, it is ultimately for the Court of Justice to provide the authoritative interpretation of European Union law whenever genuine doubts arise concerning its application.

The Constitutional Court has thus yielded ground. It fully reaffirms the validity and legal reasoning underpinning Judgment No. 63/2026. In its view, the concept of an "effective link" remains the true foundation of citizenship, while an "ethno-nationalist" conception of the people departs fundamentally from that model.

Yet, notwithstanding these considerations and the apparent tension in its own reasoning, the Court has chosen an elegant judicial solution, allowing the issue to be determined at European level.

Italian Citizenship and European Union Citizenship

Order No. 147 acknowledges an aspect of citizenship that now assumes decisive importance: although the regulation of nationality falls within the competence of the Member States, that competence is not unlimited where national decisions concerning the grant or withdrawal of nationality have consequences for European Union citizenship.

The Court itself recalls that EU law requires consistency between national citizenship and Union citizenship. Nationality remains within the competence of each Member State, but the consequences flowing from those decisions for Union citizenship may be subject to review by the Court of Justice of the European Union.

In other words, the debate is no longer confined to determining who may be regarded as an Italian citizen under Italian legislation and constitutional law. It also concerns European Union citizenship. Consequently, the final interpretation no longer falls exclusively within the jurisdiction of the Italian courts but instead lies within the competence of the Court of Justice of the European Union.

Revocation or Original Non-Acquisition?

One of the most delicate legal issues concerns the very nature of Article 3-bis, introduced by the Tajani Law.

The provision establishes that persons born outside Italy, including those born before the entry into force of the reform, who possess another nationality and do not fall within the statutory exceptions, are to be regarded as though they had never acquired Italian citizenship.

The courts that referred the constitutional questions argued that, in practice, the reform results in the retroactive deprivation of citizenship for individuals who had acquired it by descent, even though they had not yet obtained formal administrative recognition. The Court of Campobasso went so far as to hold that the mechanism amounted to an ex tunc revocation of an already vested right.

The Constitutional Court rejected that interpretation in Judgment No. 63/2026.

According to its reasoning, Article 3-bis does not revoke an existing citizenship but instead establishes what it describes as an "original preclusion": legally speaking, the persons concerned must be regarded as individuals who never acquired Italian citizenship.

The distinction is not merely semantic.

If there has been no loss of citizenship, then the established case-law of the Court of Justice—which requires an individual assessment, compliance with the principle of proportionality, and, where appropriate, prior notice accompanied by a reasonable transitional period whenever a person loses the nationality of a Member State and, consequently, Union citizenship—would not automatically apply.

The Legislation Remains in Force

Order No. 147/2026 neither declares Article 3-bis unconstitutional nor suspends its legal effects.

The legislation therefore remains fully in force until the Court of Justice of the European Union rules on the question referred by the Constitutional Court.

What has changed is the legal framework of the dispute. The decisive legal battle will now be fought at the European level, with implications extending across the entire Union under a common legal order.

An issue that, until only a few months ago, the Constitutional Court regarded as purely domestic—and in relation to which it considered the applicants to lack standing under European Union law—has now entered the sphere of EU law, by virtue of the Constitutional Court's own initiative.

The constitutional proceedings will remain stayed until the Court of Justice delivers its preliminary ruling. Only then will the Italian Constitutional Court resume the proceedings and render its final judgment. This is a procedural prerequisite of considerable significance.

In practical terms, the stay also affects proceedings currently pending before the Italian courts, which are expected to remain suspended until the Court of Justice has ruled.

A Turning Point with European Implications

From a political standpoint, the decision does not yet amount to a defeat for the Italian Government. The reform remains in force and the Constitutional Court has not questioned its validity; indeed, it has reaffirmed it.

Yet this opening towards a European legal horizon would have been almost inconceivable in the aftermath of Judgment No. 63/2026, whose reasoning the Court expressly reiterates:

"The purpose of European Union case-law is to protect Union citizenship as the fundamental status of citizens of the Member States. That purpose is absent in the present case because none of the persons affected by the contested Article 3-bis had, as a matter of law, acquired the status of a citizen of the Union."

Order No. 147 nevertheless introduces a major conceptual shift. After having previously held that the applicants lacked standing to invoke the protection of European Union law because they were not, in legal terms, Union citizens, the Constitutional Court now recognises that the final interpretation belongs to the Court of Justice of the European Union.

This apparent contradiction may also be understood in light of the broader institutional context. A significant judgment of the Italian Court of Cassation on citizenship remains pending. The Court of Cassation has consistently maintained throughout its jurisprudence that citizenship jure sanguinis is an original right acquired at birth, imprescriptible and incapable of being renounced.

From that perspective, Order No. 147 may be understood as an institutional solution designed to avoid a conflict between Italy's two highest judicial authorities by entrusting the Court of Justice of the European Union with the final interpretation of Article 3-bis, introduced by the Tajani Law. At the same time, however, it may also reflect the Constitutional Court's expectation that Luxembourg will ultimately endorse the position it had already expressed: namely, that the persons affected by Article 3-bis never legally acquired the status of citizens of the Union and therefore cannot invoke the protection afforded by European Union law.

For the Italian community abroad, however, the decision nevertheless represents an unexpected and highly significant development.

Should the Court of Justice of the European Union conclude that Article 3-bis is incompatible with European Union law, the provision would have to be disapplied, thereby allowing descendants born before 28 March 2025 to have their applications examined under the previous legal framework, based upon the unlimited transmission of citizenship jure sanguinis, without prejudice to the application of the Tajani Law to situations arising after its entry into force and its subsequent enactment, including the new restrictions and limitations on generational transmission introduced by the reform.

Pablo Munini