Tamquam non esset: The Caltanissetta Judgment and the Temporal Limits of the Reform of Italian Citizenship
The significance of the Caltanissetta judgment lies precisely in the fact that it establishes a legally meaningful limit upon the temporal application of new and more restrictive conditions, while reminding us that behind the succession of decrees, statutes and parliamentary amendments lie concrete legal situations formed under different rules. Once again, we see how dates have now assumed a significance of paramount importance, almost like decisive moves in a strategic contest. The British claimant's case would have had a different outcome had her application been lodged after 24 May. In other words, by taking the initiative to commence proceedings when she did, she consolidated and protected her legal position against a subsequent legislative change. The same reasoning may also prove relevant today in relation to proceedings commenced under the present legal framework, given the legal uncertainty that continues to surround the Tajani Law. The resolution of that uncertainty by the European courts will inevitably take time and may, moreover, produce answers that are nuanced and differentiated rather than a single, unequivocal outcome.
The judgment delivered on 10 June 2026 by the Court of Caltanissetta constitutes a decision of particular significance in the complex legal debate arising from the reform of Italian citizenship iure sanguinis. Beyond the recognition of Italian citizenship in favour of a British citizen, the importance of the ruling lies principally in the criterion adopted to determine which legal framework was applicable to an application lodged during the period between the entry into force of Decree-Law No. 36/2025 — the so-called “Tajani Decree” — and its conversion, with substantial amendments, into Law No. 74/2025.
The decision neither declares the new legislation unconstitutional nor excludes its application as a general matter. Its significance lies elsewhere: the Court of Caltanissetta held that the amendments subsequently introduced by Parliament could not produce their effects in respect of judicial proceedings commenced at a time when those conditions did not yet form part of the legal order in the terms ultimately approved.
The Period between the Tajani Decree and Law No. 74/2025
The chronology of the case is particularly significant.
The claimant, a British citizen residing in Italy, lodged her application on 2 May 2025. At that time, Decree-Law No. 36/2025 was in force, having substantially altered the rules governing the recognition of Italian citizenship by descent.
Despite the restrictions introduced by the decree, the claimant satisfied one of the conditions then in force: she had a grandfather born in Italy.
The legal position changed once again when the decree was converted into law by Parliament. Law No. 74/2025, which entered into force on 24 May 2025, did not merely confirm the provisions of the Tajani Decree; it substantially amended some of its requirements.
In particular, the condition based on the ancestor having been born in Italy disappeared and was replaced by a requirement that the parent or grandparent possess — or have possessed at the time of death — Italian citizenship exclusively.
This amendment was decisive for the claimant. Her grandfather had been born in Italy and was an Italian citizen, but he also held British citizenship. Consequently, the condition that entitled her to seek recognition when the proceedings were commenced was subsequently replaced by a considerably more restrictive one.
The Response of the Court of Caltanissetta
The Court, presided over in this case by Judge Marcello Testaquatra, held that the dispute had to be determined by reference to the legislation in force at the time the application was lodged.
The issue is particularly important because the amendments made by Parliament during the conversion process were regarded as “wholly or substantially substitutive” of the provisions contained in the original decree.
The Court relied upon the case law of the Italian Court of Cassation concerning the temporal effects of amendments introduced during the conversion of a decree-law. Under that approach, where parliamentary amendments are substitutive in nature, they take effect from the entry into force of the conversion law and cannot be treated as having existed from the date of the original decree.
Accordingly, the application lodged on 2 May 2025 had to be determined under the version of Decree-Law No. 36/2025 then in force. Since the claimant satisfied the requirement applicable at that time — namely, having a grandfather born in Italy — the Court recognised her Italian citizenship iure sanguinis.
The Significance of the Judgment: Legal Certainty and Foreseeability
This aspect makes the Caltanissetta judgment particularly significant.
A person commencing judicial proceedings must be able to ascertain the legal conditions applicable at that time. In the case under consideration, the claimant had acted in accordance with legislation then in force which entitled her to seek recognition of Italian citizenship. Several weeks later, Parliament introduced a different condition which, had it been applied to proceedings already under way, would have resulted in the dismissal of her claim.
For the specific case before it, the judgment establishes a limit upon such a consequence.
It should be emphasised that the Court did not expressly base its decision on the concepts of “unforeseeability” or “legitimate expectations”. Its reasoning rested primarily upon the rules governing the temporal effect of substantial amendments introduced in the course of converting a decree-law. Nevertheless, as the claimant's lawyer, Marco Mellone, has observed, the decision inevitably raises broader questions concerning the foreseeability of the law and the protection of legal situations established under earlier legislation.
Should the Replaced Provisions Be Regarded as tamquam non esset?
This gives rise to one of the most interesting legal questions left open by the case.
Provisions of the decree that were substantially replaced during the parliamentary conversion process might, according to a more radical interpretation, be regarded as tamquam non esset — that is, as though they had never existed.
The issue is far from theoretical. Where a provision of a decree-law is replaced during conversion, the question arises as to what becomes of legal situations that arose during the period in which that provision was formally in force.
The Caltanissetta judgment provides a concrete, albeit limited, answer: in determining the application lodged on 2 May 2025, the Court applied precisely the text of the decree that was in force on that date.
The ruling therefore stops short of holding that provisions subsequently replaced must be regarded as having been non-existent ab initio. On the contrary, it recognises that, in the case before it, those provisions were capable of governing a legal situation that arose during the intervening period.
An Important Decision, but Not a Binding Precedent
The significance of the ruling must nevertheless be assessed with due caution.
It is a first-instance judgment. Although, according to published reports, the decision has already acquired the force of res judicata in relation to the claimant, it does not constitute a legally binding precedent for other Italian courts.
Its significance is therefore primarily argumentative and persuasive.
It may prove particularly relevant to proceedings commenced between the end of March and 23 May 2025 by persons who satisfied the conditions laid down in the original text of Decree-Law No. 36/2025, but who subsequently ceased to satisfy them as a consequence of the amendments introduced by Law No. 74/2025.
A Question That Remains Open
The solution adopted in Caltanissetta does not bring the debate to an end.
It remains possible that other courts will have to examine more closely whether provisions of a decree-law that were not confirmed, or that were substantially replaced by Parliament during the conversion process, may nevertheless produce definitive legal effects in respect of situations that arose during the intervening period.
An even broader question also remains unresolved: which law should actually govern the acquisition of Italian citizenship iure sanguinis?
The position advanced by Mellone goes beyond what was established by the Court of Caltanissetta. On this view, recognition of citizenship by descent should, in principle, be governed by the legislation in force at the time of the individual's birth, rather than by restrictive conditions enacted decades later.
The question is fundamental because recognition of citizenship iure sanguinis has traditionally been understood not as the grant of a new citizenship, but as the legal acknowledgment of a status acquired by descent.
From this perspective, the application of new restrictive conditions to persons already born raises questions extending well beyond the specific problem of the period between the Tajani Decree and Law No. 74/2025.
From Abstract Rules to Concrete Legal Situations
The Caltanissetta judgment thus assumes a significance extending beyond the individual case of a British citizen.
The underlying issue is the extent to which legislative reform may alter the legal consequences of facts, family relationships and personal situations that had already arisen before its entry into force.
In an analysis published shortly after the conversion of the Tajani Decree, Mellone argued that the new provisions should be capable of affecting only persons not yet born, or those situations in which their subsequent application could legitimately be justified in the light of principles such as legitimate expectations, proportionality and reasonableness.
The Court of Caltanissetta did not go that far. Its decision nevertheless provides a first concrete point of reference for that debate: a condition introduced by Parliament on 24 May 2025 could not be treated as though it had formed part of the legal order when the claimant lodged her application on 2 May.
The significance of the Caltanissetta judgment lies precisely in the fact that it establishes a legally meaningful limit upon the temporal application of new and more restrictive conditions, while reminding us that behind the succession of decrees, statutes and parliamentary amendments lie concrete legal situations formed under different rules.
Once again, we see how dates have now assumed a significance of paramount importance, almost like decisive moves in a strategic contest. The British claimant's case would have had a different outcome had her application been lodged after 24 May. In other words, by taking the initiative to commence proceedings when she did, she consolidated and protected her legal position against a subsequent legislative change.
The same reasoning may also prove relevant today in relation to proceedings commenced under the present legal framework, given the legal uncertainty that continues to surround the Tajani Law. The resolution of that uncertainty by the European courts will inevitably take time and may, moreover, produce answers that are nuanced and differentiated rather than a single, unequivocal outcome.
In the particular case examined here, the question that now remains is whether the principle articulated in the Caltanissetta judgment will remain confined to the brief period between the Tajani Decree and its conversion into law, or whether it will mark the starting point for a much broader jurisprudential reflection on retroactivity, legitimate expectations and the very nature of Italian citizenship iure sanguinis, as historically understood by the Italian Court of Cassation.
Pablo Munini