Italian Citizenship: The Court of Avellino Raises a New Constitutional Question Concerning the Reform and Its Retroactive Effects

Can a law enacted today declare that a person was never a citizen when, under the law in force at the time of that person’s birth and the settled case law then prevailing, that person was already a citizen? The Court of Avellino has placed this question before the Italian Constitutional Court in a case concerning a minor born abroad before the 2025 reform.

This, in essence, is the question raised by the Court of Avellino in its order of 15 September 2026, concerning the retroactive application of the reform of Italian citizenship law introduced in 2025.

The case concerns a minor born abroad before the reform, whose parent’s status as an Italian citizen iure sanguinis had been recognised by a final and binding judgment of the Court of Naples.

Following the refusal of the Civil Status Officer of the Municipality of Solofra to register the minor’s birth certificate, her parents brought the matter before the courts.

The Avellino judge decided to stay the proceedings and immediately refer the case to the Constitutional Court, having found the question concerning the constitutional legitimacy of Article 3-bis(1) of Law No. 91/1992 — introduced by Decree-Law No. 36/2025 and subsequently converted into Law No. 74/2025 — to be relevant and “not manifestly unfounded.”

The constitutional concerns raised by the referring court concern Articles 2, 3 and 22 of the Italian Constitution.

The case: the daughter of an Italian citizen whose status was recognised by a final judgment

The starting point of the order is of particular significance.

The judge states:

“The minor was born abroad to a parent whose status as an Italian citizen iure sanguinis was subsequently recognised by a final and binding judgment of the Court of Naples.”

Immediately thereafter, however, the Court introduces a decisive consideration:

“Under the legislation in force prior to Decree-Law No. 36/2025, as converted by Law No. 74/2025, the application would be well founded.”

The difficulty, therefore, does not arise because the minor would have lacked an entitlement to citizenship under the previous legal framework. On the Court’s own reconstruction, her application would have been well founded under the legislation predating the 2025 reform.

The issue arises because the new Article 3-bis also applies to certain persons who were born before its entry into force and provides — subject to the exceptions expressly laid down by law — that they are to be regarded as having never acquired Italian citizenship.

According to the order, none of those exceptional conditions is satisfied in the case at hand.

The constitutional validity of the new provision is therefore determinative of the dispute.

Citizenship existed from birth

In substantiating the constitutional question, the judge begins with the legal nature of citizenship iure sanguinis as established by the settled case law of the Italian Court of Cassation.

The order recalls:

“According to the settled case law of the Joint Divisions of the Court of Cassation, citizenship iure sanguinis constitutes a status acquired by original title as a consequence of birth to an Italian citizen.”

It continues:

“Citizenship thus acquired is characterised by permanence, imprescriptibility and non-disposability.”

This premise is essential to everything that follows.

Under this legal construction, a person who satisfies the statutory requirements does not become an Italian citizen when a municipality, consulate or court subsequently recognises his or her citizenship.

Recognition is declaratory in nature: as a matter of law, it ascertains something that already existed.

Avellino states the point unequivocally:

“Subsequent administrative or judicial recognition does not bring about the acquisition of citizenship, but merely ascertains a legal situation that already exists.”

The order then draws the following consequence:

“Under the law as it stood prior to the 2025 legislative reform, persons born abroad to an Italian citizen were to be regarded as citizens from birth, irrespective of the point in time at which formal recognition of the relevant status was sought.”

The first page of the order contains another particularly clear formulation:

“The descendant of an Italian citizen did not acquire citizenship by virtue of the judgment, but possessed it from birth, the judgment being limited to the formal ascertainment of a status that already existed.”

This aspect assumes particular importance in the case at hand because the minor’s parent does not merely have an application awaiting determination: his or her status as an Italian citizen iure sanguinis was recognised by a final and binding judgment.

The distinction between losing citizenship and “never having acquired it”

It is at this point that the Avellino order reaches the heart of the constitutional problem.

The judge devotes a specific section to the “substantive effect of the new legislation.”

The order observes that the explanatory report accompanying the reform characterises Article 3-bis as a provision intended to preclude ex tunc — that is, from the outset — the automatic acquisition of citizenship, rather than as a provision entailing the loss of citizenship previously acquired.

The Court, however, asks whether, beyond the formal characterisation adopted by the legislature, the actual legal effect is not precisely that when the provision is applied to persons born before the reform.

The judge writes:

“Nevertheless, in the light of the reconstruction derived from the prevailing law, the Court considers that the provision produces a substantively different effect.”

The reasoning that follows constitutes one of the central passages of the entire order:

“If the person was already a citizen from birth under the legislation previously in force, the provision requiring that person to be regarded as never having acquired citizenship ultimately operates retroactively upon a status that had already entered the individual’s legal patrimony.”

The perspective thereby changes.

The question is no longer merely whether the legislature may alter the conditions governing the acquisition of Italian citizenship.

The question becomes: what happens when the new law reaches back into the past and affects a person who, under the previous legal regime, had already acquired that status from birth?

Avellino’s provisional conclusion is particularly significant:

“The practical effect of the provision therefore appears comparable to a revocation ex tunc, or, in other words, to the retroactive loss of status civitatis.”

The distinction between “never having acquired” citizenship and retroactively losing citizenship already acquired thus becomes the central axis of the constitutional question.

Legal certainty and legitimate expectations: the concerns under Articles 2 and 3

The order then considers whether this retroactive effect is compatible with Articles 2 and 3 of the Italian Constitution.

The Court recalls:

“The Constitutional Court has repeatedly held that retroactive legislation is subject to limitations deriving from the principle of reasonableness and from the protection of legitimate expectations in legal certainty, as a fundamental element of the rule of law.”

For Avellino, the temporal dimension is decisive:

“In the present case, the contested provision operates upon individual legal positions which, under the statutory and jurisprudential framework in force until 27 March 2025, had already been perfected.”

The order continues:

“Persons born abroad to an Italian citizen could, in fact, rely, on the basis of entirely settled case law, upon the subsequent recognition of a status already acquired.”

The 2025 reform would subsequently have interfered with those positions:

“The 2025 legislative intervention operates retroactively upon that situation, depriving of protection legal positions which the prevailing law regarded as already existing.”

On that basis, the Court considers that the question concerning compatibility with Articles 2 and 3 of the Constitution — particularly with regard to reasonableness and the protection of legitimate expectations grounded in legal certainty — is not manifestly unfounded.

Article 22 and the retroactive extinguishment of status civitatis

The judge also examines the matter from the standpoint of Article 22 of the Italian Constitution, which provides that no person may, for political reasons, be deprived of legal capacity, citizenship or name.

The order does not hold that Article 22, in and of itself, renders the reform unconstitutional. It expressly reserves to the Constitutional Court the assessment of the scope and meaning of that provision.

It does, however, raise a doubt that goes once again to the core of the issue:

“Without prejudice to any assessment reserved to the Constitutional Court as to the meaning of the provision, the constitutional compatibility of legislation which, although formally framed as a failure to acquire citizenship, produces in substance the effect of retroactively extinguishing a status already acquired under the previous legislation appears, at the very least, open to doubt.”

From this perspective too, Avellino concludes that the constitutional question cannot be regarded as manifestly unfounded.

Two fronts concerning Article 3-bis: Rome and Luxembourg

The new constitutional question raised by Avellino comes at a particularly significant juncture, as Article 3-bis is already under scrutiny from the perspective of European Union law.

On 23 July 2026, by Order No. 147/2026, the Italian Constitutional Court decided to make a reference for a preliminary ruling to the Court of Justice of the European Union concerning the new citizenship regime.

The preliminary reference made by the Constitutional Court addresses the issue from the standpoint of EU law, in particular in relation to Article 9 of the Treaty on European Union and Article 20 of the Treaty on the Functioning of the European Union.

Campobasso waits for Luxembourg; Avellino takes a different path

The existence of the Picuso proceedings is already producing tangible consequences before the Italian courts.

On the same date, 15 September 2026, the Court of Campobasso adjourned until 27 April 2027 a hearing concerning applications affected by Article 3-bis. The judge considered the preliminary question currently pending before the Court of Justice of the European Union relevant to the determination of those proceedings.

The contrast with Avellino is significant.

Avellino does not wait for Luxembourg

Avellino has not simply chosen to await Luxembourg’s answer.

The judge identifies an autonomous constitutional problem: whether a subsequent legislative provision may reach back into the past to such an extent as to interfere with a status which, under the law in force before the reform, already belonged to the individual from birth.

In Judgment No. 63 of 2026, the Constitutional Court was unequivocal in developing its conception of a “virtual” citizenship. The matter is now also before the European judicature, and it will fall to Luxembourg to rule upon the question referred to it. Yet, to date, the Constitutional Court has not departed from that construction.

It is precisely against this background that the Avellino order acquires particular force.

It is an ordinary judge who once again sets against the new legislation the authority of the diritto vivente developed by the Court of Cassation: citizenship iure sanguinis is acquired from birth; a judgment subsequently recognising that citizenship does not create it, but merely declares a status that already existed.

From this perspective, the Avellino order may be read as something more than another question of constitutional legitimacy. It represents a renewed challenge, arising from within the ordinary judiciary itself, to a construction that has not succeeded in dispelling the tensions between the 2025 reform and the principles of the diritto vivente that preceded it.

The reference to Luxembourg transferred a decisive part of the controversy to a higher legal order. Perhaps it also served to defer a confrontation which, within the Italian judicial system, was sooner or later bound to resurface.

And it leaves open an even more uncomfortable question:

Will awaiting an answer from Europe be enough to contain a controversy that continues to emerge from within the Italian courts themselves?

Pablo Munini