The Tajani Decree Back in Court: What the Avellino Referrals Ask, and Why Filing Still Matters

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In September 2026 the Tribunal of Avellino issued two orders that send Article 3-bis of the Italian citizenship law, the core of the 2025 reform known as the Tajani decree, back to the Italian Constitutional Court. The second order also refers the matter to the Court of Justice of the European Union. Both cases concern children born abroad whose parents had already been recognised as Italian citizens by a final judgment, and whose birth certificates the municipality then refused to transcribe.

Neither order changes the law today: consulates, municipalities and Italian courts continue to apply Article 3-bis. What the orders do is keep the constitutional and European questions open, on facts that are harder for the new law to defend than those the Constitutional Court has examined so far. This article explains what the Avellino judge asked, why it matters for Italian citizenship by descent (jure sanguinis), and what it means for families deciding whether to file now or wait.

The Tajani decree and Article 3-bis in one paragraph

Decree-Law no. 36 of 28 March 2025, converted with amendments by Law no. 74 of 23 May 2025, added Article 3-bis to Law no. 91/1992, the Italian citizenship law. Under Article 3-bis, a person born abroad who holds another citizenship is considered never to have acquired Italian citizenship, even if born before the rule existed, unless one of its conditions applies. The main conditions are: a recognition application or court claim filed by 23:59 (Rome time) on 27 March 2025, or an application submitted to the competent office on an appointment communicated to the applicant by that time; a parent or grandparent who holds, or held at death, exclusively Italian citizenship; or a parent or adoptive parent who lived in Italy for at least two continuous years after acquiring Italian citizenship and before the child’s birth or adoption. In practice, the new rules introduced a generational limit for anyone who had not applied before the cut-off. The conditions are set out one by one on our page on Italian citizenship by descent.

The two Avellino orders at a glance

Order of 15 September 2026 Order of 18 September 2026
Constitutional Court register Referral order no. 172/2026 Referral order no. 176/2026
Municipality that refused transcription Solofra Montoro
Children concerned One minor child; the parent had been recognised as an Italian citizen by a final judgment of the Tribunal of Naples Four minor children born in Brazil; the parents had been recognised as Italian citizens by a final judgment of the Tribunal of Naples
Referred to Constitutional Court Constitutional Court and EU Court of Justice (Case C-1083/26, Servaso)
Provisions of the Italian Constitution invoked Articles 2, 3 and 22 Articles 2, 3 and 22
Register numbers, dates, municipalities and constitutional provisions: Constitutional Court register of referral orders. Facts of the two cases: published reports on the orders. The full texts will be available once published in the Official Gazette.

What the Italian judge asks the Constitutional Court

According to the official summary in the Constitutional Court’s register, both orders challenge the application of Article 3-bis to people born abroad before it entered into force. The grounds are:

  • the retroactive effect of the new limits on citizenship acquired at birth, by original title, by people born abroad who descend from an Italian ancestor;
  • an implicit and retroactive revocation of citizenship for everyone who met the conditions under the previous rules but had not yet applied for recognition;
  • unreasonableness, and breach of legitimate expectations in the certainty of the law with regard to a right already acquired;
  • arbitrary deprivation of citizenship, under Article 22 of the Italian Constitution.

The order of 18 September adds two grounds that concern children directly: the effect of the new law on the status of minors, and the unreasonableness of a system that can give different citizenship status to members of the same family.

The reasoning, as reported in published commentary on the first order, starts from settled case law. Italian citizenship jure sanguinis is acquired at birth, and the recognition of Italian citizenship only declares a status that already exists. The child’s parent was therefore already an Italian citizen when the child was born, and under the previous rules the child ould have been a dual citizen from birth. To treat that child as never having acquired Italian citizenship, the judge reasons, works in practice like a revocation with retroactive effect.

Italian Citizenship by Descent Back in Court: Tajani Decree, Constitutional Court & EU Court

What the Italian judge asks the EU Court of Justice

In the order of 18 September the judge also made a preliminary reference under Article 267 TFEU. The case appears among the pending cases of the Court of Justice as Case C-1083/26 (Servaso). The text of the questions has not yet been published. According to reports quoting the order and the families’ counsel, the reference relies on:

  • Article 9 TEU and Article 20 TFEU, on EU citizenship;
  • Article 7 of the Charter of Fundamental Rights of the European Union, on private and family life;
  • Article 24 of the Charter, on the rights of the child, including the child’s best interests.

The judge’s central point, as reported, is that the children chose neither their place of birth, nor their parents’ citizenship, nor the moment at which their parents sought recognition. A measure applied automatically, retroactively and without any individual assessment may therefore not be compatible with EU law.

The Court of Justice can examine the question because Italian citizenship carries European citizenship with it: under Article 20 TFEU, every citizen of a Member State is a citizen of the Union. The Court of Justice does not decide who is Italian. It is the only court that can definitively interpret EU law, and its answer then binds the Italian judge who asked.

This goes beyond the question the Constitutional Court itself sent to Luxembourg in order no. 147/2026 (Case C-816/26, Picuso), which concerns Article 9 TEU and Article 20 TFEU only. Two references on Article 3-bis are now pending before the European court: one from the Constitutional Court and one directly from an Italian tribunal.

Why these referrals matter for children of Italian citizens

The Constitutional Court has already ruled once on the Tajani decree. In judgment no. 63/2026 it rejected the questions raised by the Tribunal of Turin, holding that Article 3-bis is an original bar to acquiring citizenship, not a revocation, because the people it affects had no legally certain status. The Avellino cases test that reasoning where it is weakest.

  • The Italian parent’s status is certain. It was established by a final judgment. In judgment no. 142/2025 the Constitutional Court itself held that it is the status of child of an Italian citizen that gives title to citizenship. The child of a parent whose citizenship has been judicially established is the case in which an “original bar” looks most like a loss of citizenship.
  • Children’s rights enter the European debate. The Charter provisions on family life and on the best interests of the child add a dimension that order no. 147/2026 did not include.
  • Family unity. Parents recognised as Italian citizens, children treated as foreigners, and siblings whose status can differ according to dates and procedural choices they did not make.

Two cautions. On Articles 2 and 3 of the Constitution, the Court has already answered in judgment no. 63/2026, and it may simply refer back to that answer. And a referral is a question, not a ruling: until a court decides otherwise, Article 3-bis remains the current law.

Should you wait for the EU Court before filing?

This is the question we have been asked most often since July. For most families the answer is no, for reasons that should be stated precisely, including their limits.

Courts decide only the questions brought before them

Every referral on Article 3-bis so far, from Turin, Mantua, Campobasso and now Avellino, came from a real court case in which the judge was asked to raise the question. A claim that is never filed cannot raise anything.

In 2025, the filing date was the dividing line

When the decree came into force on 28 March 2025, constitutional questions raised by the Tribunals of Bologna, Milan, Florence and Rome were already pending. The decree kept the previous rules for applications and court claims filed by 23:59 on 27 March 2025. In judgment no. 142/2025 (paragraph 7 of the reasoning) the Constitutional Court noted that all the underlying cases had been filed before that date and therefore remained governed by the previous law. The United Sections of the Court of Cassation confirmed the same rule in judgment no. 24045/2026. Those who had filed were protected; those who were waiting were not.

When effects are limited in time, pending cases are often the exception

If the law changes again, through the Italian Parliament, the Constitutional Court or the Court of Justice, nobody can predict where a new line would be drawn. One precedent is worth knowing. When the Court of Justice has limited the effects of its own judgments in time, it has made an exception for those who had already brought legal proceedings: in Defrenne (Case 43/75, 8 April 1976) and in Barber (Case C-262/88, 17 May 1990). These are equal-pay cases, not citizenship cases. They show a pattern, not a forecast.

What filing does not do

A judgment declaring the law unconstitutional, with no time limit attached, applies to every position not yet exhausted (Article 136 of the Constitution), including claims filed later. The Constitutional Court can also restrict the effects of its own judgments in time, as it did in judgment no. 10/2015. And a dismissal that becomes final is an exhausted position: it does not benefit from a later change in the law. Filing therefore has to come with a plan: asking the court to stay the case while the Court of Justice decides and, if the claim is dismissed, appealing to keep it alive. Filing also has a cost, and a dismissal is possible; both should be weighed before you decide.

Children of a recognised Italian parent: what to do now

  • If the municipality refused to transcribe your child’s birth certificate under Article 3-bis, the refusal of the civil registrar can be challenged before the tribunal of the district where the civil registry office is located (Article 95 of Presidential Decree no. 396/2000). The questions raised in Avellino can be raised in that court case.
  • If your children were applicants in a court claim filed by 27 March 2025, Article 3-bis does not apply to them: the previous legal framework governs their claim.
  • If you have not yet asked for transcription, keep together the judgment recognising the Italian parent, the child’s birth certificate with apostille and translation, and any refusal you receive in writing. Dates decide these cases.

What happens next

Referral orders nos. 172/2026 and 176/2026 will be published in the Official Gazette, after which their full text will be available on the Constitutional Court’s website. The constitutional proceedings on order no. 147/2026 are suspended until the Court of Justice answers in Case C-816/26. On the Court of Justice’s own statistics, preliminary ruling proceedings took 16.9 months on average in 2025. We will add both Avellino orders to our register of Italian citizenship court rulings as soon as the texts are published.

A video explaining the Avellino referrals will be published on our YouTube channel shortly.

Frequently asked questions

Does the Tajani decree still apply after the Avellino referrals?

Yes. A referral asks a question; it does not suspend the law. Italian consulates, municipalities and Italian courts continue to apply Article 3-bis until the Constitutional Court or the Court of Justice decides otherwise.

My parent was recognised as an Italian citizen by a court. Is my child Italian?

It depends on dates and on the conditions of Article 3-bis. If the child was an applicant in a claim filed by 27 March 2025, the previous rules apply. If not, and none of the other conditions is met, municipalities currently refuse transcription. That refusal can be challenged in court, and the questions raised in Avellino can be raised there.

Should I wait for the Court of Justice before filing?

In most cases we advise against waiting: in 2025 the filing date decided who kept the previous rules, and only pending cases can raise new questions. A filed claim needs a plan for a stay and, if necessary, an appeal. Whether filing makes sense depends on your line and your dates.

Find out where your family stands

Send us your line of descent, the dates you have and, if relevant, the municipality’s written refusal. An Italian lawyer will reply in writing and tell you whether a claim is possible and which of these questions apply to it. Request a free eligibility check.

Sources

This article provides general information on Italian law and does not constitute legal advice. Whether any of these developments applies to a particular family depends on the specific facts, dates and procedural position of the case.

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