Jus Sanguinis Update: Constitutional Challenges to the Decree Law n.74

Since the Decree law was enacted on March 28th, 2025, our clients and broader community of Italian descendants living abroad have been perched on the edge of their seats waiting to see what will happen next. We have been keeping a close eye on the situation and are here to bring you a jus sanguinis update. 

The recent Decree Law, Law n.74/2025, broke away from the previous interpretations of jus sanguinis in an unprecedented way, introducing a generational limit and restrictions on naturalization status. In June 2025 the Constitutional Judgement of 142/2025 protected cases that were filed before March 28th 2025 from being retroactively overturned by the decree law. In addition, the Constitutional judgement is supportive of jus sanguinis prior to the decree law, and states that being a direct descendant of an Italian is enough of a “connection to Italy” for citizenship by descent. 

The newest constitutional challenge by the Court of Turin from June 2025 was just recently published in the Gazzetta Ufficiale on the 17th of September 2025. Now that this document has been posted in the official gazette for all legal matters in Italy, we can highlight some parts to explain its significance. There is merit in the reasoning of the Court of Turin as they consider that the new Law introduces a case of implicit and retroactive revocation of citizenship. This is because, according to existing jurisprudence, applicants seeking Italian citizenship by descent are already Italian citizens, they are simply lacking a formal recognition from the Italian government. When these applicants receive the formal recognition of citizenship, it is only a declaratory act on behalf of the Italian officials, not a true act of granting citizenship. 

In simple terms, the Court of Turin argues that the new law is retroactively taking away Italian citizenship from these individuals, because those pursuing citizenship via jus sanguinis are already Italian citizens by birth, and are merely asking the Italian government to formally recognize that citizenship.

The Court of Turin also questions a possible violation of articles 2 and 3 of the Italian Constitution: article 3, the violation of the principle of equality, underlining the absolute arbitrariness of the treatment between those who had submitted a judicial application before March 28, 2025 and those who submitted it after; and article 2 which stands for the protection of inviolable rights, the Court of Turin argues that the law 74/2025 violates these rights by creating legal uncertainty by making the law effective retroactively.   

Here another relevant mention: it has also underlined how the principle of reliance also applies in procedural matters and is violated in the face of interpretive, or in any case retroactive, solutions adopted by the legislator with respect to those affirmed in practice. Additionally it mentions that these principles must apply in the case at hand, and one must keep in mind - in particular - the particularly high "degree of consolidation" of the jurisprudence on iure sanguinis citizenship, which consists of an innumerable number of rulings that (in cases superimposable to the one at hand) had peacefully recognized the right to citizenship.

A comparison is made by the referring judge between the reasonableness of the Decree Law’s retroactivity and the way a German legislator introduced the law of July 15, 1999, which entered into force on January 1, 2000. In this German law, Article 4(4) StAG establishes that "German citizenship is not acquired… at birth abroad, if the German parent was born abroad after December 31, 1999 and resides habitually [abroad], unless the child is stateless.”

Here the judge comments that the German legislator of 1999 wanted to make the new (and more restrictive) legislation on citizenship applicable only to those born after January 1, 2000. The referring judge considers this a further demonstration of the untenability of the legislative choice of Decree-Law No. 36/2025, which disregards the legislation on the acquisition of Italian citizenship by birth which has been in force since 1912 because the decree-law imposes an immediate and retroactive effect.

The Turin Court also focuses on the violation of article 117 of the Italian Constitution whereas it considers the violation of international treaty law before the Constitutional Court, especially the rules of EU law. The rules of the Treaties establishing European citizenship cannot be otherwise qualified ("Every person holding the nationality of a Member State shall be a citizen of the Union," Article 9 TEU; "A citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union," Article 20 of the Treaty on the Functioning of the European Union).The Court of Turin asserts that Decree 36/2025 violates the rules of the EU Treaties establishing European citizenship.  

The argument being made here is that the laws governing jus sanguinis, prior to the decree law 74/2025, grant citizenship to Italians born abroad at the time of birth, thus they are already members of the EU. Since the retroactivity of the decree law strips the Italian citizenship from those who are not formally recognized (but under previous laws are already considered legally Italian citizens) then the decree law is also stripping these individuals of their inherent EU citizenship which is in direct violation of EU law due to the fact that there was no formal review of these cases prior to revocation and no provision of interim law to provide a reasonable amount of time to have citizenship recognized before the immediate implementation of the new law.

For all these reasons the Court of Turin considers the new law at least partially unconstitutional due to its retroactive effect on descendants born before its enactment.

A ruling on this referral is expected for early spring 2026, having a significant effect on ongoing cases on citizenship.

Another interesting development, the United Sections of the Court of Cassation has received two referrals from the Court’s First Civil section, No. 20122 and No. 20129 on July 18, 2025. Although these referrals go beyond just the minor issue, both cases include the minor issue. The Court asks the Joint Sessions to verify "whether the provisions of Article 3-bis of Law 91/92... also regulate the case in question, even though it must be noted that the case brought to trial is chronologically prior to the new law...". 

According to Avv. Alberto Lama, ‘this verification may apply not only to those who had already initiated a judicial proceeding for recognition before March 27, 2025, but also to those who were already born at the time the decree-law and the law came into force but had not initiated a legal proceeding before them’. As a ruling is expected by the end of 2025 or early 2026 this would be a great opportunity to clarify the question of retroactivity of the new Law n.74 even before the Constitutional Court referral by the Court of Turin is heard and a judgment is emitted.

Since the new Law n.74/2025 came into effect Italian consulates have required an exotic certificato storico di residenza as a condition for citizenship recognition (a certificate of historical residence which, in many comuni, did not exist until the early 20th century). This Law that has been qualified as a sort of Frankenstein that revived the Law Decree 36/2025 by inserting this peculiar ius soli requirement (proof of having lived at least 2 years in Italy) to a ius sanguins legal body therefore creating an unnatural and unreasonable combination.

However the Italian legal system has some constitutional principles that could challenge this requirement by an administrative part of the Italian state as it could be:

1. An excess of power (excesso di potere). According to the Italian Council of State, an administrative act, while formally legal can be annulled if it abuses the discretionary power attributed to the public administration for showing Manifest unreasonableness, lacking a reasonable cause as there is no legitimate interest or violates principles of good administration like impartiality, efficiency and reasonableness. 

This is an unreasonable administrative burden that is almost an impossible task for a private citizen to undertake as these records may be incomplete, lost, or inaccessible. Requiring this is an arbitrary denial to the right of citizenship, ergo this is a clear case of excess of power.

2. Violation of the principle of proportionality. An administrative measure should be suitable, necessary, and proportionate to the objectives it wants to achieve, as a formal declaration by the applicant, other historical documents should be accepted, as well as a statement by the comune establishing whether such a record exists or not.

3. Breach of the principle of legal certainty. Citizens should be protected from sudden, retroactive and unpredictable changes in the law that damage that citizen’s legitimately founded expectations. This new condition for a storico di residenza on the Italian ancestor introduces a obstacle that retroactively affects the right that was previously considered from birth according to the old law. This administrative requirement, even if inserted in the new law, would therefore violate this fundamental principle.

Of course this is intimately related to the doubts on the constitutionality of the new Law n.74 / 2025, but it can also be reasoned that it is not only is the new law unconstitutional, but also the ways and means this law is applied by the administration in the Italian Consulates abroad.

As we see here every time Law n.74 is analyzed by any question or detail, the doubts on its Constitutionality and applicability versus well established principles in Italian jurisprudence come into play. We want to explain these legal events in an easily digestible manner to show how all of these arguments and concerns may hopefully converge in future rulings and decisions to reinforce Italian citizenship by descent.