Constitutional Crossroads After Recent Legal Challenges to Italian Citizenship by Descent

Photo by: Sergio D’Afflitto

Since late last year, a concerted movement has emerged to challenge the established principles of ius sanguinis in Italy, aiming to curtail the recognition of Italian citizenship by descent. This movement is now actively questioning judicial requests for citizenship recognition while disregarding more than 160 years of its history.

The Initial Salvo: Administrative Restrictions

Perhaps the first public manifestation of this coordinated strategy by the governing coalition was the Ministry of the Interior's circular of October 3, 2024. This circular, ostensibly focusing on a minor issue, banned consular or municipal recognition of citizenship through the male line for individuals whose ascendant naturalized before their child reached adulthood. This move signaled a clear intent to reduce the scope of ius sanguinis recognition by Italian administrations

Judicial Scrutiny of the 1992 Law

Following this, courts in Bologna, Milan, Rome, and Florence began to question the constitutionality of the 1992 citizenship law itself. These courts argued that automatic citizenship grants, without requiring a genuine link such as language proficiency, residency, or demonstrable ties to Italy, might be unreasonable. In these proceedings, Italian State attorneys advocated for limitations, while lawyers for citizenship applicants defended the existing, unlimited right of transmission. These courts referred the question to Italy's Constitutional Court, initiating a debate on whether the old law was overly permissive.

A Legislative Silk Glove: Decree-Law No. 36/2025

Citing national security, the Italian government adopted a proactive legislative approach, enacting Decree-Law No. 36 on March 28, 2025, instead of awaiting a judicial ruling. Many scholars and attorneys, however, viewed this justification as a pretext, following a coordinated press campaign that generated public alarm. This campaign highlighted consular and judicial backlogs in citizenship requests and alleged abuses by some applicants, predominantly from Brazil. The decree's preparation was conducted in utmost secrecy to achieve a surprise effect on those seeking citizenship recognition. Subsequently, in late May, Parliament discreetly converted this decree into Law No. 74/2025 through an accelerated procedure reserved for Decree Laws, thereby bypassing the widespread public scrutiny and extended timelines characteristic of regular legislative processes.

This new legislation went beyond imposing limitations; it retroactively extinguished rights. It stipulated that descendants of Italian emigrants who had acquired another citizenship were to be considered as never having been Italian citizens unless their status had been formally recognized by an arbitrary cut-off date of March 27, 2025. This drastic measure has consequently opened a second, more critical legal front: the constitutionality of the government's solution itself.

The Judicial Rebellion Against the 2025 Reform

The government's drastic 2025 reform ignited an immediate and vigorous judicial rebellion, distinct from the pre-existing challenges to the 1992 law. This new wave of challenges focused not on whether ius sanguinis should have limits, but on the illegitimate manner in which the government had imposed them and its temporary scope of application.

The First Pushback: The Campobasso Ruling on Retroactivity

The Tribunal of Campobasso was the first court to directly address the new Decree-Law. In a pivotal decision on May 2, 2025, it ruled that the new, restrictive law could not be applied retroactively to cases filed before its enactment. The court invoked the principle of legitimate expectation, asserting that the state could not arbitrarily negate rights for individuals who had relied on the law as it stood when they initiated their legal process. This decision provided crucial protection for pending cases, though it did not resolve the law's underlying constitutionality.

Specifically, in a case involving Italian-American applicants whose claim was filed before the new law's enactment, the Campobasso court directly addressed and rejected the Ministry of the Interior's argument for retroactive application of the new, more restrictive rules. The court's core finding was that the new law cannot retroactively apply to situations where the right to citizenship had already vested under the previous legal regime. This reasoning is rooted in the fundamental principle of non-retroactivity of laws (Article 11 of the Preliminary Provisions to the Civil Code) and the established legal nature of ius sanguinis citizenship as an acquired right, diritto quesito that comes into existence at birth. The court maintained that a legislative act cannot retroactively extinguish a right already part of an individual's legal patrimony, especially without express mention of retroactivity and exceptional justification.

The Campobasso court effectively rejected the law's retroactive effect through a constitutionally oriented interpretation, ruling that the new law, interpreted in light of fundamental legal principles, must apply only prospectively to those born after its enactment. This approach offered an immediate remedy for the applicants, bypassing a lengthy and uncertain constitutional review.

The Constitutional Court Hearing on the 1992 Law (June 24, 2025)

Once the new Decree-Law was converted into law, the Constitutional Court hearing on the old 1992 law on June  24, 2025 provided a significant opportunity for the attorneys of applicants from Bologna, Milan, Florence, and Rome to highlight the new Law Decree as a negative example. They argued that the constitutional questions raised to limit ius sanguinis were inadmissible and, in any event, unfounded.

Avvocato Mellone challenged the judges' assertion regarding the unreasonableness of ius sanguinis as applied for 160 years, deeming it inadmissible. He posited that the legislator's intervention now offered the Constitutional Court a prime opportunity to issue a comprehensive ruling on ius sanguinis. 

He characterized the new law as an administrative process, not a proper law, designed to retroactively negate effects already applied to descendants of Italian emigrants under previous law. Mellone argued that the new law is unreasonable according to EU law, as this removal of rights cannot be done in a general way. This is a fundamental issue affecting the citizenship status of 90% of Italian citizens, thus impacting the fundamental right to vote. 

Mellone also emphasized that the issue is not the constitutionality of the 1992 law, but rather administrative inefficiency, with the excess of court cases stemming from unresolved administrative issues. He stressed that Italy's history of millions of emigrants cannot be denied, quoting President Mattarella's recent statement that the history of emigration abroad is a fundamental part of Italian history.

Avvocato Bonato drew an analogy between an Italian citizen whose citizenship has not been recognized by the Italian state and an Italian citizen born out of wedlock and not voluntarily recognized by his Italian father. He argued that the citizen born out of wedlock possesses citizenship status even before formal recognition, and thus the court request is merely for formal recognition.

Bonato urged the Court to declare the questions inadmissible because they request the Court to perform a legislative function. He characterized the lower courts' requests as seeking an additive judgment—a ruling that would add new requirements to the existing law—which oversteps the Court's judicial role.

Bonato further argued that even if the questions were admissible, a ruling that adds generational limits would have disastrous and unconstitutional consequences, leading to an illegitimate and automatic loss of citizenship for an entire, undefined category of people. This, he argued, would constitute a mass denationalization and violate Article 22 of the Italian Constitution, which explicitly forbids the deprivation of citizenship for political reasons. Such a ruling would also contradict established jurisprudence at various levels:

• It would contradict the unanimous position of Italy's highest courts, which hold that loss of citizenship cannot be automatic and can only result from a conscious and voluntary act by the individual.

• Regarding the European Court of Justice, it would breach EU Law, specifically Article 20 of the Treaty on the Functioning of the European Union (TFEU). The CJEU has ruled that Member States cannot impose an automatic loss of citizenship without giving affected individuals a reasonable period to assert their right to maintain their status, as seen in a 2023 case concerning Denmark.

Bonato considered the new law unconstitutional for the very same reasons an additive judgment would be: it uses ambiguous and deceptive language—a linguistic fraud, as Constitutional Law professor Enrico Grosso termed it—to mask an unjust, retroactive, and collective deprivation of citizenship. Bonato noted that the decree employs a seemingly neutral and innocuous lexical formula, and although the government's report speaks of a retroactive preclusion to the acquisition of citizenship, the ambiguity of the language evidentially hides the legislator's serious embarrassment in attempting to conceal the mechanism's retroactivity.

Bonato also mentioned that President Mattarella recently seemed to express utter perplexity regarding the new citizenship reform, particularly concerning those born abroad. He emphasized that the Italian constitutional system does not permit a general act, whether a decree-law converted into law or an additive judgment, to retroactively deprive an entire category of individuals—who are already born and in any case substantially Italian—of their citizenship.

Avvocato D’Andrea highlighted that the Italian Constitution does not sanction categories like "identity community," and the principle of pluralism enshrined in the Charter, understood as the foundation of the democratic state, prevents the imposition of a unitary and homogeneous idea of identity as a condition for the recognition of rights.

Constitutional Showdown: Turin Escalates Battle Against New Citizenship Law

In a significant development in June 24 2025, the Court of Turin issued a striking ordinance, elevating the constitutional challenges against Law n.74/ 2025 to the Constitutional Court. The Court of Turin, deeming the new legislation fundamentally illegitimate, has paused ongoing cases to allow for this crucial review.

The Turin Ordinance (June 16, 2025): A Comprehensive Legal Challenge

The case leading to this ordinance involved Venezuelan citizens tracing their Italian ancestry to an emigrant, and a 1948 case concerning a female ancestor who transmitted citizenship before 1948.

The presiding judge Fabrizio Alessandria, vehemently rejected the government's characterization of the new law as a mere procedural preclusion to acquiring citizenship. Instead, the judge reasoned that since the applicants were already citizens from birth under the previous legal framework, the new law functions as an implicit and retroactive revocation of their citizenship, effectively stripping them of a right vested by birth.

The Court of Turin's challenge is comprehensive, arguing that Law 74/2025 is unconstitutional on multiple grounds:

• Violation of Articles 2 and 3: Principles of Equality and Reasonableness: The law is criticized as arbitrary and unreasonable, creating an unjustifiable disparity between individuals in identical situations. This disparity hinges solely on whether they managed to file a claim before an abrupt and retroactive deadline. This is deemed a violation of the constitutional principle of legitimate expectation, affidamento nella sicurezza giuridica, which safeguards acquired rights, diritti quesiti,  from sudden legislative nullification. The judge cited numerous Constitutional Court decisions in support. A comparative example was provided: a similar restrictive reform to Germany's citizenship law (Staatsangehörigkeitsgesetz) in 1999 was deliberately applied only to future generations, underscoring the unreasonableness of the Italian measure.

• Violation of Article 117: Conflict with International and EU Law: Article 117 of the Italian Constitution mandates compliance with international treaties. The new law is found to conflict with several fundamental international obligations:

  • EU Law – EU Citizenship (Art. 9 TUE & 20 TFUE): The law's stripping of Italian citizenship automatically leads to the loss of EU citizenship. This contradicts rulings from the Court of Justice of the European Union (CJEU), which demand that any loss of EU citizenship be proportionate and allow for an individual assessment of its consequences. Furthermore, the CJEU requires a reasonable timeframe for individuals to apply to retain citizenship after notification of impending loss—a safeguard entirely absent from the new Italian law. Relevant cases include Rotmann, Tjebbes, Wiener Landesregierung, and Stadt Duisburg.

  • Universal Declaration of Human Rights (Art. 15): The law is considered an arbitrary deprivation of nationality, which is explicitly forbidden. The judge noted that "arbitrary" is a broader standard than the Italian Constitution's prohibition of stripping citizenship for political motives, encompassing any unjust or unreasonable measure.

  • European Convention on Human Rights (Protocol 4, Art. 3): The law violates the fundamental right of a citizen to enter the territory of their own state, as individuals who were Italian nationals at birth are now deprived of this right.

The Road Ahead: All Eyes on the Constitutional Court

The Italian Constitutional Court now faces two distinct sets of constitutional questions:

1. From Bologna, Milan, etc.: Is the unlimited ius sanguinis principle of the 1992 law constitutional?

2. From Turin: Is the new, retroactive Law 74/2025 constitutional?

   
   

While other courts may follow Turin's lead in challenging the new law's constitutionality, some, like Campobasso, may also be opting to bypass a lengthy and uncertain constitutional review to use the more simple remedy of not to apply its retroactivity. At this moment the resolution date for both existing appeals remains unknown. Some scholars believe that the constitutional question raised by Bologna, Milan, etc., may influence the interpretation of Law 74, even before the Court of Turin case is fully discussed. However, the situation remains fluid.