Does Law 74/2025 violate EU law, and can the citizenship-by-descent issue still go to the Court of Justice of the EU?

Updated June 2026 — Avv. Irene Damiani, Damiani & Damiani International Law Firm, Palermo

In ruling no. 63/2026 (deposited 30 April 2026) the Italian Constitutional Court upheld Article 3-bis of Law 91/1992 — the provision introduced by Decree-Law 36/2025, converted into Law 74/2025 and known as the “Tajani Decree” — but it deliberately declined to examine the European Union law profiles, which remain entirely open before the ordinary courts. There are at least six solid grounds for a preliminary reference to the Court of Justice of the EU (CJEU) under Article 267 TFEU. The strongest is this: a national measure formally labelled “original non-acquisition” cannot escape EU scrutiny when, in substance, it produces effects equivalent to depriving a person of EU citizenship — the principle established in Rottmann (C-135/08, 2010), Tjebbes (C-221/17, 2019) and Micheletti (C-369/90, 1992).

Why calling ruling 63/2026 “the tombstone of ius sanguinis” is misleading

The Ruling no. 63/2026 has been described as the final word that buries citizenship by descent. That reading is superficial and legally inaccurate. Several case studies in italian citizenship by descent litigation show that the Court of Cassation has repeatedly found in favour of applicants. More importantly, while the Constitutional Court rejected the questions of constitutional legitimacy referred by the Court of Turin, it deliberately avoided analysing the EU-law profiles of the reform. Those profiles remain fully available to the ordinary courts. Ius sanguinis is not dead; the battleground is shifting.

The six grounds for a preliminary reference to the CJEU

1. National citizenship as the gateway to EU citizenship

The Constitutional Court’s reasoning rests on a premise: that citizenship is a matter of exclusive Member-State competence, so the Italian legislature enjoys wide discretion to define national citizenship and may justify retroactive limits on ius sanguinis by reference to a “genuine link” with the Republic.

This is where the first conflict with EU law arises — a conflict recognised by the CJEU’s own case law. Under Rottmann (C-135/08, 2010), determining citizenship remains a State competence, but Member States must exercise it “with due regard to EU law.” The same principle returns in Tjebbes (C-221/17, 2019), where the loss of national citizenship that affects a person’s status as an EU citizen brings EU law into play, and in Micheletti (C-369/90, 1992), where national citizenship is the precondition of European status.

The critique of ruling 63/2026 is that the Court treated Italian citizenship as an almost wholly domestic matter, when the national citizenship of a Member State is today the very foundation of EU citizenship. This is not a question of Italian sovereignty; it is a question of the boundary between national competence and European oversight.

The first question for the CJEU: whether EU law precludes national legislation that, with retroactive effect, treats as “never acquired” the citizenship of persons already born ius sanguinis under the previous law, thereby potentially affecting their status as EU citizens.

2. Retroactivity and the EU principle of legal certainty

Article 3-bis of Law 91/1992, introduced by the Tajani Decree and confirmed by ruling 63/2026, operates ex tunc from its entry into force. A person regarded as an Italian citizen under the law in force until 26 March 2025 must now be treated as if they had never acquired citizenship.

The EU-law issue is not Italian citizenship as such, but three core principles of EU law: legitimate expectations (the legal expectation that the law will not change retroactively), legal certainty (the predictability of rules), and proportionality (the balance between the legislative aim and the sacrifice of individual rights). In Tjebbes (C-221/17, 2019) the CJEU held that loss of national citizenship producing effects on EU status requires an individual examination of the situation, a concrete assessment of the consequences, and proportionality between the aim pursued and the means used.

Law 74/2025 does the opposite: it applies automatic criteria (the two-generation limit operates across the board), rigid legislative presumptions (a person born abroad with dual citizenship is presumed never to have acquired Italian citizenship), full retroactivity, and no individual examination. The Constitutional Court applied an “internal” reasonableness review without genuinely engaging the CJEU’s proportionality test for loss of EU citizenship.

The question for the CJEU: whether Articles 20 and 21 TFEU, read in light of the principle of proportionality, preclude national legislation that automatically deprives persons of the status flowing from the citizenship of a Member State without an individual assessment of the consequences for their European position.

3. The legal fiction: “never acquired” versus “loss of citizenship”

This is the most sophisticated point in the ruling. The Italian rule does not simply say a person “loses” citizenship; it says something formally different — the person “must be regarded as never having acquired it.” That nominalist device is crucial for the Constitutional Court, but it may be irrelevant from the European standpoint.

In Rottmann (C-135/08, 2010) the measure was formally a retroactive withdrawal of German naturalisation, but substantively it caused the loss of German — and therefore EU — citizenship. The CJEU did not say “because German law calls it a withdrawal, the matter is internal.” It held that where a national decision produces the loss of EU citizen status, it falls within the scope of EU law regardless of how national law characterises it.

Applied to the pre-1948 maternal-line scenario — a woman who married a foreigner before 1948 with a child born before 1948 — a person recognised as an Italian (and therefore potentially EU) citizen under the prior law could, through retroactive cancellation, suffer what amounts in substance to a revocation of EU citizenship, even though the Italian legislature labels it “original non-acquisition.” These cases are pursued through the judicial route to Italian citizenship through the civil courts. [INTERNAL LINK: anchor “the judicial route to Italian citizenship through the civil courts” -> /italian-citizenship-loophole-judicial-civil-court/]

The anti-circumvention argument for the CJEU: if it were enough to say “this is not a revocation, it is original non-existence,” Member States could escape the CJEU’s entire case law on loss of citizenship. Every revocation could be re-labelled “original non-existence,” the EU proportionality review would be easily bypassed, and the Rottmann/Tjebbes principle would lose its force. A national court could therefore ask the CJEU whether a Member State may evade its obligations under Articles 20 and 21 TFEU by retroactively characterising as non-existent an acquisition of citizenship previously recognised by its own legal order. This is probably the single strongest ground for a referral.

4. The substantive-effect principle in CJEU case law

EU law contains a consistent interpretive principle, drawn across the CJEU’s case law: what prevails is the substantive nature of a measure, its concrete effects and its real legal consequences — not the formal label the national legislature attaches to it. The principle is strongest in the fields of EU citizenship (Rottmann, Tjebbes, Micheletti), the fundamental freedoms, State aid, employment law, and effective judicial protection. A Member State cannot escape European scrutiny simply by giving a measure a different nominal classification, because EU law uses autonomous, functional and substantive concepts, grounded in effet utile, primacy, and uniform application.

Rottmann is the guiding case. Germany argued that citizenship fell within national competence and that the withdrawal was an internal matter of national administrative law. The CJEU looked instead at the concrete effects on European status and the consequences for the EU citizen, holding that the situation “falls, by reason of its nature and its consequences, within the ambit of European Union law.” What matters is the substantive nature and consequences of the measure, not its internal formal classification.

The same substance-over-form logic returns in Tjebbes: a State may provide for automatic loss of citizenship, but only with an individual check, proportionality, and a concrete assessment of the consequences for European status. There too the national rule formally concerned only Dutch citizenship, yet the CJEU examined its substantive effect — the loss of European status.

The principle can be reconstructed in four steps. First, national competence: Member States define acquisition and loss of national citizenship. Second, the EU-law limit: that competence must be exercised with due regard to EU law. Third, the substantive test: whether EU law applies depends on the real effect of the measure, not its national label. Fourth, the consequence: if a measure substantively deprives a person of EU citizen status, it falls within EU law — even if national law defines it otherwise — and is subject to CJEU review.

Applied to ruling 63/2026, the Court appears to assume that because there is no “revocation” of citizenship, only an ex tunc redefinition of the requirements for acquisition, the European case law on loss of EU citizenship does not apply. That assumption can be challenged precisely on the substantive-effect principle. For EU law the point is not how the Italian legislature classifies the measure (“original non-acquisition”) or what legal form it takes (“ex tunc recognition”), but what effects it produces (elimination of citizenship status), what consequences citizens suffer (loss of the possibility of being regarded as EU citizens), and which status is affected (EU citizenship). The effects are the retroactive elimination of citizenship status, the loss of the possibility of being regarded as an EU citizen, and the neutralisation of a status previously recognisable under the law in force.

This argument is strong because it does not deny State competence over citizenship, does not ask the CJEU to define “who is Italian,” and only requires that the effects on European status be reviewable — exactly the equilibrium the CJEU built from Micheletti through Rottmann to Tjebbes. A rigorous formulation for pleadings: the national legislative classification of the measure as a mere recognition of the original non-existence of citizenship status does not appear capable of removing the measure from EU-law scrutiny where, in concrete terms, it produces effects equivalent to deprivation of the status of EU citizen. That formula reframes the case from national sovereignty over citizenship to protection of the European status that the CJEU has already recognised as “the fundamental status of nationals of the Member States.”

5. The missed step: effectiveness and indirect discrimination

Ruling 63/2026 protects those who filed an application by 27 March 2025. But administrative reality diverged sharply from the rule on paper. For many applicants it was practically impossible to obtain an appointment by that date: consular calendars were closed for months, waiting lists in South America and the United States were saturated, the Prenot@mi portal was blocked for entire years, and lodging an application was concretely impossible for reasons beyond the applicant’s control. Applicants who were shut out by consular delay before the cut-off may still have a claim. [INTERNAL LINK: anchor “Applicants who were shut out by consular delay before the cut-off” -> /italian-citizenship-blocked-consulate-appointment-2025-cutoff/]

This opens an EU-law profile: a disparity between persons in an identical substantive position (both entitled under the pre-2025 law, but one able to book an appointment and one not), turning on consular administrative inefficiency, and amounting to possible indirect discrimination based on residence outside the EU, since consulates in South America and the United States were the most overwhelmed. Post-ruling commentary has stressed that the Constitutional Court did not genuinely address the problem of impossible consular appointments.

The question for the CJEU: whether the EU principle of effectiveness precludes legislation that makes the retention of a status linked to EU citizenship conditional on an administrative step that is impossible or excessively difficult to perform. This argument is powerful because it exposes the procedural illegitimacy of the rule, not merely its merits.

6. Methodology: the Constitutional Court’s failure to refer

After Consorzio Italian Management (C-309/16, 2018), even supreme national courts bear strict duties to give reasons when they decline to refer to the CJEU. It must be clear that the conditions of acte clair are met — that the answer is so obvious as to require no reference.

In ruling 63/2026 the Constitutional Court dealt with matters directly affecting EU citizenship, addressed retroactivity and loss of European status, and yet made no reference to the CJEU. The methodological criticism is that the Court implicitly interpreted EU law without consulting the CJEU; that it was not evident the acte clair conditions were satisfied; and that the question was novel enough to require European clarification. Subsequent ordinary courts — such as the Tribunals of Mantova and Campobasso — could rely on this to make the reference themselves.

The strongest procedural strategy for a future referral

A national court should frame the reference not on the abstract entitlement to Italian citizenship, but on EU citizen status, the EU principle of proportionality, protection of legitimate expectations, the prohibition of automatic mechanisms, unjustified retroactive effects, and the duty of individual assessment. This shift is decisive: it avoids a head-on collision with national sovereignty over citizenship (where States retain wide latitude) and instead engages the protection of the European status the CJEU has already recognised as the fundamental status of Member-State nationals.

The most vulnerable passage of ruling 63/2026 is probably this: the Constitutional Court accepts a retroactive, generalised compression of citizenship status without any individual proportionality review. That is precisely the ground on which, over the past fifteen years, the CJEU has progressively limited State discretion in citizenship matters where Articles 20 and 21 TFEU are engaged. It is the most solid opening for a serious preliminary reference.

Conclusion: the key is substantive effect

The decisive formula is this. National law may classify a situation as “original non-acquisition,” but EU law looks to the real effects of the measure on the status of EU citizen; and the CJEU, especially since Rottmann, applies a substance-over-form approach that does not stop at the Member State’s formal classification. That is the strongest line of criticism against ruling 63/2026.

Ruling 63/2026 closed the door to a constitutional challenge against the Tajani reform, but it opened others. Ordinary courts can make a preliminary reference on stronger grounds; the Sezioni Unite of the Court of Cassation, already seised of related profiles, may address the “permanent and imprescriptible” nature of citizenship by descent; and the CJEU will have the opportunity to say whether a Member State can evade European scrutiny through definitional devices. Whether you are assessing a claim to Italian citizenship by descent under the new framework, the EU-law route remains open.