What Comes Next: The Constitutional Court according to Judge Scotti of the Corte di Cassazione

In his extensive comments on Constitutional Court Judgment 142/2025, Judge Scotti, a former president of the 1st Section of the Court of Cassation, offers conclusions relevant to the Turin referral on the legitimacy of Article 3-bis introduced by Law Decree 36/2025. 

Article 3-bis of the Decree Law introduces the following restrictions: 

• Generational Limit: only those whose parent or grandparent was the last born Italian ancestor can apply for Italian citizenship by descent.

• Naturalization Status: only those whose last Italian born ancestor remained solely Italian for the entire duration of their life, never naturalizing abroad, have a valid pathway for Italian citizenship by descent.

Based on the Italian Constitution and European Union law, Judge Scotti affirms that the legislative power over citizenship law has limits. Mainly, they are subject to Constitutional review and European Court of Justice review. Laws on citizenship must adhere to reasonability, proportionality, and recognized constitutional and European law principles. 

The core idea is this: National citizenship is the key that opens the door to EU citizenship. A member state can't just throw away that key if it means stripping a person of their fundamental EU rights.

The Principle of Proportionality (The Rottmann Principle):

This is the most critical legal constraint on national citizenship laws, established by the CJEU in the landmark Rottmann case (2010).

What it Means:

A member state is generally free to lay down its own rules for acquiring and losing nationality, but the exercise of that power is subject to judicial review under EU law. If a national decision to withdraw or revoke citizenship leads to the loss of EU citizenship, that decision must be proportionate to the underlying offense or circumstance.

One of the justifications for imposing the Decree Law was to repair a constitutional breach by the old law of 1992, as argued by the Court of Bologna in their referral in November 2024, prior to the Decree Law. Now that this matter has been resolved, it is clear that there was no constitutional breach made by the old law of 1992, and thus no justification for the Decree law as a remedy on this point. 

Judge Scotti suggests that a partial declaration of unconstitutionality of the Decree Law may be possible because the new law fails to provide a specific deadline for those born before its enactment to apply. As a potential reasonable solution, Judge Scotti contends a one-year deadline should be allowed for descendants born before the decree to submit a request for recognition under the previous provisions.

This one year time limit, while reasonable to the judge, could be difficult to apply in practice, as accessing documents to prove the line of descent can take months or even years and could contribute to a case collapse in the courts. Overall, seeing a judge with long standing in the Court of Cassation offer a positive view on the probable outcome of the Constitutional Court referral by the Court of Turin is extremely positive.

In consequence, a potential conclusion is that Italian descendants born abroad should have their documents prepared and ready for filing in the event of a new deadline after a favorable Constitutional Court judgment. The Constitutional Court will meet again in February 2026, and we should know the outcome by Spring 2026. Stay tuned for more updates, and book a complimentary call to find out how ViaMonde can help you prepare.