|
Listen to this article!
Getting your Trinity Audio player ready...
|
What happened
On 9 June 2026 the Italian Constitutional Court, sitting in chambers, decided to refer article 3-bis of the citizenship law to the Court of Justice of the European Union. The order, no. 147/2026, was deposited on 23 July 2026. It joins two sets of proceedings: one referred by the Tribunal of Mantua (referral order no. 4 of 2026) and two referred by the Tribunal of Campobasso, immigration section (referral orders nos. 40 and 41 of 2026).
The provision under review is the one introduced by Decree-Law 36/2025, converted by Law 74/2025: the rule that a person born abroad who holds another citizenship is deemed never to have acquired Italian citizenship unless one of the conditions in article 3-bis applies. The referring courts attacked, in particular, the words anche prima della data di entrata in vigore — “even before the date of entry into force” — and the conditions in letters a), a-bis) and b), invoking articles 2, 3, 22, 72(4) and 77 of the Constitution, and articles 9 of the Treaty on European Union and 20 of the Treaty on the Functioning of the European Union.
This is the operative part of the order, in the Court’s words:
La Corte costituzionale, riuniti i giudizi, 1) dispone di sottoporre, ai sensi dell’art. 267 del Trattato sul funzionamento dell’Unione europea, alla Corte di giustizia dell’Unione europea la seguente questione pregiudiziale: se gli artt. 9 del Trattato sull’Unione europea e 20 del Trattato sul funzionamento dell’Unione europea ostino all’adozione di una disciplina quale quella prevista dall’art. 3-bis della legge 5 febbraio 1992, n. 91 […] nella parte in cui configura una preclusione originaria all’acquisto della cittadinanza italiana a carico di chi è nato all’estero anche prima della data di entrata in vigore dello stesso art. 3-bis ed è in possesso di altra cittadinanza, salvo che ricorra una delle condizioni indicate nel seguito della medesima disposizione; 2) sospende il presente giudizio sino alla definizione della suddetta questione pregiudiziale.
In English: the Court asks the Court of Justice whether articles 9 TEU and 20 TFEU preclude a rule such as article 3-bis “in so far as it establishes an original bar to the acquisition of Italian citizenship for a person born abroad, even before the date of entry into force of article 3-bis, who holds another citizenship, unless one of the conditions listed in the provision applies” — and suspends its own proceedings until Luxembourg answers.
What a referral is, and what it is not
A preliminary reference under article 267 TFEU is a question, not a verdict. The Constitutional Court has not declared article 3-bis unconstitutional, has not suspended its application, and has not told the tribunals to stop applying it. Consulates, municipalities and courts apply article 3-bis today exactly as they did on 22 July.
What the referral does is put one precise issue before the only court that can settle it: whether EU law allows a Member State to provide that people born abroad before the rule existed, holding another citizenship, are treated as never having been its citizens — and therefore never having been citizens of the Union. Because Italian citizenship carries EU citizenship with it (article 20 TFEU), the Court of Justice has jurisdiction over the EU-law consequences of a national rule on nationality, as it held in Rottmann, Tjebbes and, most recently, in its judgment of 29 April 2025 in Commission v Malta(C-181/23).
What the Constitutional Court itself thinks
This is the part most commentary on the order leaves out, and it matters more than the referral itself. The Court did not refer because it doubts article 3-bis. Read paragraphs 7.3 and 9.3.
In paragraph 7.3 the Court, having set out its reading of citizenship in a democratic legal order, writes that this reading “sembra armonizzarsi con le esigenze della cittadinanza europea” — seems to harmonise with the requirements of European citizenship — and that, consistently with what the Court of Justice held in Commission v Malta, what is required is “un rapporto effettivo di solidarietà”, an effective relationship of solidarity between the State and its citizens.
In paragraph 9.3 it goes further: “L’art. 3-bis, nell’attuare il principio del genuine link, risulta in realtà coerente con la visione della cittadinanza (dello Stato membro ed europea) delineata dalla CGUE nella citata decisione del 2025 sul caso maltese.” Article 3-bis, in implementing the genuine-link principle, is in fact consistent with the vision of citizenship — national and European — set out by the Court of Justice in the Maltese case.
Why refer, then? The Court says so in the same paragraph. The parties had reiterated their request for a preliminary reference on articles 9 TEU and 20 TFEU, and: “In omaggio al principio di leale cooperazione di cui all’art. 4, paragrafo 3, TUE […] e alla competenza esclusiva della CGUE a fornire l’interpretazione definitiva del diritto dell’Unione, questa Corte intende dare seguito a tali richieste.” Out of loyal cooperation, and because only the Court of Justice can give the definitive interpretation of EU law, the Court decided to ask — while telling Luxembourg, in the body of the order, what it thinks the answer is.
We say this plainly because families are being told that “the Constitutional Court has sent the Tajani law to Europe” as if that were half a victory. It is not. It is a question asked by a court that has already explained, in judgment 63/2026 and again here, why it considers the generational limit lawful. The answer may still go the other way — the Court of Justice is not bound by the Constitutional Court’s view, and the questions of proportionality and of the individual examination of consequences that run through Tjebbes and Wiener Landesregierung are real — but anyone planning a family’s next three years on the assumption that Luxembourg will strike the rule down is planning on a hope, not on the order.
The appointment question is still open — and the Court says why
Judgment 63/2026 had expressly left open the position of those who initiated the procedure before the cut-off but never received an appointment. Order 147/2026 does not close it; it explains why it could not reach it. In paragraph 9.1 the Court notes that the referring court “fa riferimento generico a «fattori burocratici» che possono ritardare la presentazione della domanda amministrativa o giudiziale, senza mai menzionare specificamente il caso di chi ha avviato la procedura amministrativa prima del 28 marzo 2025 ma non ha mai ricevuto la comunicazione dell’appuntamento” — the referral spoke generically of bureaucratic factors, without ever specifically raising the case of the person who started the administrative procedure before 28 March 2025 and never received the appointment.
That is a message to the Italian Courts making rulings on italian Citizenship by descent : the question has not been decided because it has not been properly asked. A referral that frames it precisely — a documented attempt to apply before the cut-off, a consulate that never communicated a date — is still possible.
And in paragraph 8 the Court adds a piece that consular-delay litigants should note. Citing the Court of Cassation’s order no. 13818 of 2026, it writes: “la Corte di cassazione ha chiarito che anche la mancata comunicazione dell’appuntamento (che si traduce in un ostacolo alla presentazione della domanda) crea un interesse a proporre l’azione giurisdizionale di accertamento, così smentendo l’assenza di rimedi idonei a superare le disfunzioni amministrative.” The Cassation, as the Constitutional Court summarises it, has clarified that the failure to communicate an appointment — an obstacle to filing the application — itself creates an interest in bringing the judicial action for recognition. Whatever the Court of Justice decides on article 3-bis, this confirms the door that our consular-delay cases walk through.
What changes for you now
If you qualify under letters c) or d) — a parent or grandparent who holds only Italian citizenship, or a parent who lived in Italy for two continuous years before your birth — nothing changes. Your recognition does not depend on the outcome in Luxembourg. File.
If your line is a 1948 line, nothing changes either: a 1948 case has always been a court case, and the tribunals are deciding them under the rules described on that page.
If you filed in court before 27 March 2025, article 3-bis does not apply to you (Cassation, Sezioni Unite, 24045/2026), and the referral is irrelevant to your case.
If you started with a consulate before the cut-off and never got an appointment, your position is the one the Court has now twice described as undecided. It is argued case by case, tribunal by tribunal, and the Cassation’s 2026 order gives it a procedural footing it did not have a year ago. This is where we spend most of our time.
If none of the above applies — you were born abroad, you hold another citizenship, your ancestors naturalised generations ago — the honest answer is that under the law as it stands, and under the reading the Constitutional Court has given of it twice, you do not qualify today. The referral keeps a question open; it does not create a right. On the Court of Justice’s own published figures a preliminary ruling takes, on average, well over a year; if the answer is that EU law precludes the retroactive part of article 3-bis, the Constitutional Court will resume the suspended proceedings and decide, and a declaration of unconstitutionality would apply to everyone whose position is not already exhausted, not only to those with a case pending. We will publish the day the judgment is deposited.
Our reading
Two things are true at once. The referral is a genuine opening: for the first time, the retroactive reach of article 3-bis — the words anche prima della data di entrata in vigore — is before a court that has, in Tjebbes and Wiener Landesregierung, required Member States to examine the individual consequences of a loss of Union citizenship. And the Constitutional Court has told that court, in terms, that it sees no incompatibility.
We do not build files on the first truth alone. Where a client qualifies under the law as it stands, we file now. Where a client’s only hope is Luxembourg, we say so in the first reply, and we keep the file ready so that, if the answer comes, nothing has been lost. The register of decisions applying article 3-bis, updated as they arrive, is on the court rulings page; the law itself, condition by condition, is on the citizenship by descent page.
Sources
- Corte costituzionale, ordinanza n. 147/2026, decided 9 June 2026, deposited 23 July 2026 (President Amoroso, Judge-Rapporteur Pitruzzella); referral orders: Tribunale di Mantova no. 4/2026; Tribunale di Campobasso nos. 40 and 41/2026.
- Corte costituzionale, sentenza n. 63/2026 (deposited 30 April 2026).
- Court of Justice of the EU: Rottmann (C-135/08); Tjebbes (C-221/17); Wiener Landesregierung (C-118/20); Commission v Malta (C-181/23, Grand Chamber, 29 April 2025).
- Corte di cassazione, ordinanza n. 13818/2026, as cited in paragraph 8 of order 147/2026.
- Corte di cassazione, Sezioni Unite, sentenza n. 24045/2026 (published 26 July 2026).
- Law 91/1992, article 3-bis, as introduced by Decree-Law 36/2025, article 1(1), converted with amendments by Law 74/2025.
This article provides general information on Italian law and does not constitute legal advice.