A Lifeline for Millions: How Italy's Citizenship Crisis Reached the Court of Justice of the European Union

On July 23, 2026, the Italian Constitutional Court published Order No. 147/2026 — a document that is, in the legal sense, a relatively brief procedural instrument, but whose consequences for millions of Italian descendants scattered across North America, South America, Australia, and the rest of the world are potentially transformative. With that order, Italy's highest court suspended the domestic constitutional proceedings challenging Law 74/2025 — the so-called Tajani Decree — and referred the central question about that law's compatibility with EU citizenship principles to the Court of Justice of the European Union in Luxembourg. It was, as attorney Marco Mellone immediately recognised, a historic moment: the first time an Italian court had conceded, however carefully and indirectly, that something may be wrong with the new law.

We were almost dead, he said. Now we restart our battle.

That sentence captures, with unusual precision, the emotional and legal trajectory of the past sixteen months for the hundreds of thousands of people who had invested years of research, thousands of dollars in legal and genealogical fees, and profound personal hope in what had been, until March 2025, one of the most expansive citizenship-by-descent systems in the world.

What Italy Had and What the Tajani Decree Changed

To understand what is at stake in this case, it is necessary to understand what Italy's citizenship law looked like before March 2025 and what the Tajani Decree transformed it into overnight.

Italian citizenship law, under Law 91 of 1992 and the jurisprudential developments that preceded and followed it, operated on the principle of jure sanguinis — citizenship by blood. An Italian citizen passed citizenship to their children regardless of whether those children were born in Italy. And those children, when they grew up, could pass Italian citizenship to their children. And so on, in theory, through unlimited generations. The only circumstances under which the chain broke were if an ancestor had voluntarily naturalised as a citizen of another country before August 16, 1992, in which case the naturalisation severed the line — or, in the case of female ancestors, if the birth of the relevant child occurred before January 1, 1948, due to the constitutional limitation on women's capacity to transmit citizenship before the Italian Republic's constitution came into force.

The practical result of this system was that millions of people with Italian ancestry in the United States, Brazil, Argentina, Canada, Australia, and elsewhere held legally recognised rights to Italian — and therefore European Union — citizenship, even if they had never lived in Italy and their most recent Italian ancestor had emigrated generations ago. The Italian diaspora is one of the largest in the world, with an estimated 80 million people of Italian descent outside Italy. Of those, approximately six million held Italian citizenship as of 2024. An unknown but very large number were in the process of researching, documenting, and applying for recognition of citizenship they believed they legally possessed.

Then, in March 2025, the Meloni government acted. Decree-Law 36/2025, converted into Law 74/2025 and known as the Tajani Decree after Foreign Minister Antonio Tajani who promoted it, fundamentally rewrote the rules. The decree introduced a two-generation cap: only the children and grandchildren of Italian citizens born abroad could benefit from automatic recognition of citizenship. Great-grandchildren and beyond were barred. It also introduced Article 3-bis, which specified that individuals born abroad who already possessed another citizenship at birth would be considered not to have acquired Italian citizenship by descent unless they satisfied specific conditions demonstrating genuine ties to Italy. And it imposed a strict temporal cutoff: those who had filed formal applications before 11:59 PM on March 27, 2025 were treated differently from those who had not, creating an arbitrary line that cut off people mid-application or at various stages of a process that can take many years to complete.

The law took effect immediately, without transition period, without individual notice, and without any mechanism for assessing the circumstances of the hundreds of thousands of people whose applications were already in progress. Overnight, millions of people who had believed themselves to be Italian citizens, or to have the right to become formally recognised as Italian citizens, were told that they were not and never had been — that the prior case law which had recognised their status was simply wrong, and that the new law resolved the question retroactively.

The Constitutional Challenge and the Court's Initial Response

The legal challenges began almost immediately. Courts across Italy — most prominently the Civil Tribunal of Turin — raised constitutional questions about the law's compatibility with Article 3 of the Italian Constitution, which enshrines the principle of equality, with the principles of legal certainty and legitimate expectations, and with EU citizenship provisions under Articles 9 and 20 of the EU treaties, which grant EU citizenship to every national of a member state and protect the rights that flow from that status.

Those constitutional questions went to the Constitutional Court, which held a public hearing on March 11, 2026. The court's eventual ruling — Judgment No. 63/2026, deposited April 30, 2026 and published May 6, 2026 — upheld the Tajani Decree. The constitutional challenges were declared partly unfounded and partly inadmissible. The court found that Italy's legislature has broad discretion to define national citizenship and that the Tajani Decree's goal of requiring effective ties between citizenship and Italy was constitutionally legitimate. It rejected the challenge based on the equality principle. It rejected the challenge based on Article 15 of the Universal Declaration of Human Rights, which prohibits arbitrary deprivation of nationality. It rejected the challenge based on Articles 9 TEU and 20 TFEU, finding that the EU citizenship questions were not decisive for people whose Italian citizenship had not yet been formally recognised.

For the hundreds of thousands of people worldwide who had been following the proceedings, the April 30 ruling was devastating. Hundreds of individual lawsuits challenging the law were dismissed in its wake. The Italian courts applying the Constitutional Court's judgment denied case after case. The prevailing view in the global community of Italian citizenship applicants and their legal advisers was that the constitutional avenue was exhausted and the battle was effectively over.

The About-Face: What Changed Between April 30 and July 23

What happened between the Constitutional Court's April 30 ruling upholding the Tajani Decree and its July 23 referral to the CJEU is the most technically significant and, in some ways, most legally perplexing aspect of this entire saga.

The April 30 ruling had deliberately declined to examine the EU law dimensions of the challenge. The Constitutional Court found that the EU citizenship precedents — specifically the landmark cases of Rottmann (C-135/08, 2010), Tjebbes (C-221/17, 2019), and Micheletti (C-369/90, 1992) — were not decisive for people whose Italian citizenship had not yet been formally recognised, reasoning that the loss-of-nationality jurisprudence developed in those cases applies when an already-recognised EU citizen is stripped of their status, not when someone who has never had their status formally recognised is denied future recognition.

But in subsequent proceedings — in constitutional challenges raised by other Italian courts after April 30, which the Constitutional Court continued to process — the same fundamental EU law questions kept arriving on the court's docket. And on June 9, 2026, at a public hearing that became the occasion for Order 147/2026, the court received submissions from attorney Marco Mellone, who appeared as counsel for two of the parties in those proceedings and argued specifically that the questions raised by the new challenges differed from those already decided in April — that they raised EU citizenship and freedom of movement issues that the court had not yet properly examined and that it was obligated to refer to the CJEU under the EU treaty framework.

The Constitutional Court accepted that argument. Order 147/2026, published July 23, suspended the domestic proceedings and referred a preliminary question to Luxembourg under Article 267 TFEU — the provision that allows and in some circumstances requires national courts to ask the CJEU for an authoritative interpretation of EU law before deciding a case that depends on it. The court cited the principle of sincere cooperation under Article 4(3) TEU as part of its justification for the referral, acknowledging that where the interpretation of EU citizenship law is genuinely uncertain and material to the domestic outcome, Luxembourg must have the opportunity to speak first.

That the court made this referral after having upheld the same law three months earlier, having explicitly found that the EU citizenship precedents were not decisive, constitutes what Marco Mellone characterised as a 180-degree change. The court itself did not frame the referral as an admission that Judgment 63/2026 was wrong. Its formal position is that the current proceedings raise questions that differ sufficiently from those addressed in April to warrant CJEU input. But the practical effect — suspending the law's enforcement in the context of these proceedings while Luxembourg deliberates — is that the Constitutional Court has acknowledged that the EU dimension of the Tajani Decree's legality has not been conclusively resolved.

Marco Mellone: The Scholar Who Predicted This

One of the most remarkable dimensions of this story is that the precise legal scenario that has now unfolded — an Italian law restricting citizenship by descent being referred to the CJEU because of its implications for EU citizenship — was predicted, in academic publication, before the law even existed. In 2024, attorney and EU law scholar Marco Mellone published an article in Eurojus, a Class A scientific journal in European Union law as classified by Italy's National Agency for the Evaluation of Universities and Research Institutes, titled Italian Unlimited Ius Sanguinis and Its Proposal of Amendment: An EU Law Perspective. In the conclusion of that study, Mellone wrote that, if the Italian Parliament were to approve a new law restricting citizenship by descent incompatibly with European law, it was not excluded that Italy could be the protagonist in the next decision of the Court of Justice on nationality matters.

The decree that triggered the reform was published in March 2025 — one year after Mellone's study. The referral that brought Italy before the CJEU occurred in June and July 2026 — two years after he published the article charting the path. Mellone personally participated in the June 9, 2026 hearing that led to Order 147/2026, appearing as counsel for two of the parties. Order 147/2026 explicitly records his involvement and his motion asking the court to make the referral. The court accepted the motion. The framework he described in academic writing in 2024 became the operative legal architecture in July 2026.

The coincidence — if coincidence it is — extends further. The study Mellone published in 2024 cited Spain, the Netherlands, and Denmark as examples of other European countries that had already been required to modify their citizenship laws or practices as a result of CJEU jurisprudence. The lesson those countries provided is precisely the lesson that Order 147/2026 is now asking the CJEU to apply to Italy.

The EU Legal Framework: What Luxembourg Will Decide

The CJEU will not be deciding a simple question. The referral asks the Court to determine whether Law 74/2025 is compatible with EU citizenship principles — specifically whether Article 3-bis, in its retroactive application to people born before the law existed, produces effects equivalent to depriving individuals of EU citizenship in a manner that is disproportionate, lacks adequate notice, fails to provide individual assessment, and therefore violates the standards established in Rottmann, Tjebbes, and Micheletti.

The Rottmann case, decided in 2010, established that although nationality law is in principle within the exclusive competence of member states, a decision to deprive a person of citizenship falls within the scope of EU law when that person loses their EU citizenship status as a consequence. Such a decision must respect proportionality. It must be justified by legitimate interests. It must allow for individualised assessment of the consequences for the person concerned. The state cannot treat citizenship deprivation as a purely administrative matter unaffected by the rights the citizenship confers.

The Tjebbes case, decided in 2019, applied Rottmann's framework to the automatic loss of Netherlands nationality by Dutch citizens residing outside the EU for ten years without renewing their passports, finding that the Netherlands was obligated to allow individual assessment of the impact on each person's EU citizenship rights before applying the automatic loss provision.

The Mellone-authored study published in 2024 identified at least six grounds on which a reformed Italian citizenship law could conflict with these precedents. The strongest is the one Order 147/2026 has now formally placed before the CJEU: a national measure formally labelled original non-acquisition — the Italian government's framing is that people excluded by Article 3-bis never acquired Italian citizenship at all, they simply had their status not recognised — cannot escape EU scrutiny when it produces effects functionally equivalent to depriving those people of EU citizenship, including the right to reside freely in any EU member state, to work in the EU without restrictions, and to access the full range of rights that flow from EU citizenship status.

The Italian government's position depends on the distinction between original non-acquisition — you never had it — and deprivation — you had it and it was taken away. If the CJEU accepts that distinction, Italy's law survives EU scrutiny because the Rottmann and Tjebbes framework was designed to protect people from losing citizenship they already held, not from being denied citizenship they never formally possessed. If the CJEU rejects the distinction — if it finds that for people whose circumstances would have entitled them to recognition under prior Italian case law, the practical effect of Article 3-bis is equivalent to deprivation regardless of how the Italian government labels it — then Law 74/2025 will face a significant compatibility problem with the EU treaties.

Prominent Italian citizenship attorney Elisa Restanio, commenting on the referral for CNN, noted that European legal precedent usually favours descendants, establishing the need for adequate notice and individual assessment before restricting citizenship by descent. Instead, Italy pushed L74/2025 through without warning, cutting off thousands of people who were already mid-application. That observation maps directly onto the Tjebbes standard of individualised assessment — precisely the mechanism Italy's overnight implementation of the Tajani Decree bypassed.

What Happens Now: The Practical Consequences for Applicants

Order 147/2026 has immediate practical implications for the tens of thousands of people whose cases are pending before Italian courts or who are contemplating legal action.

The most significant immediate consequence is that Italian trial judges handling active jure sanguinis claims under Law 74/2025 now have clear precedent — the Constitutional Court's own Order 147/2026 — to grant stays of proceedings under Article 295 of the Italian Code of Civil Procedure, suspending those cases until the CJEU issues its ruling. Requesting a stay of proceedings preserves the case's position on the court docket and prevents an adverse judgment under Law 74/2025 from becoming final while the EU question is pending in Luxembourg. Legal practitioners advising clients with active cases are now widely recommending this approach.

For those whose cases have already been dismissed, the order provides grounds for appeals to the Italian Court of Appeal, citing Order 147/2026 as establishing that the law's EU compatibility remains an open question that the lower courts may not have adequately examined.

The timeline, however, is long. Preliminary rulings before the CJEU are not instant. The court's average processing time for a preliminary reference under Article 267 TFEU has been approximately two years in recent years, though complex or politically sensitive cases can take longer. A ruling from Luxembourg should not be expected before 2028 at the earliest and could arrive later.

Until that ruling is issued, Law 74/2025 remains in effect. Individual judges may stay their proceedings or may continue applying the law, depending on their reading of Order 147/2026. The Constitutional Court is not the only domestic institution with jurisdiction over citizenship matters: the Court of Cassation — Italy's supreme court for civil matters — is expected to examine the law's temporal reach and the question of whether it can properly apply to people who were considered Italian citizens from birth under earlier case law. Until both the CJEU and the Court of Cassation have ruled, citizenship-by-descent cases will proceed differently from court to court, and the legal landscape will remain genuinely uncertain.

The Community That Has Been Waiting

The human scale of this legal story is worth pausing on. The Italian diaspora includes an estimated 80 million people around the world. In the United States alone, approximately 17 million Americans self-identify as Italian-American. The number who were at some stage of the citizenship-by-descent process when the Tajani Decree was issued in March 2025 is not precisely known, but estimates by practising attorneys and genealogical research organisations suggest it runs into the hundreds of thousands. Many had spent thousands of dollars on document retrieval, certified translations, genealogical research, and legal fees. Some had been engaged in the process for years, navigating appointment backlogs at Italian consulates that in some cities stretched to years. Others had been mid-application, with documentation assembled and submitted, when the cutoff fell.

For all of them, Order 147/2026 is not a resolution. It is not a ruling that they are Italian citizens. It is not an injunction preventing Italy from applying the Tajani Decree. It is a procedural order that suspends certain proceedings and sends a question to Luxembourg. But what it represents, in the context of sixteen months during which every domestic court avenue had been closed and the community had been told in April 2026 that the Constitutional Court had spoken and the fight was over, is exactly what Marco Mellone called it: a restart of the battle. A sign that the question is not settled. A door that was understood to be sealed revealing a crack of light.

European legal precedent, if it applies as broadly as the referral's proponents argue, would require not just a modification of Law 74/2025 but its fundamental restructuring — replacing the blanket retroactive two-generation cap with a system that provides adequate notice and individual assessment of the impact on each person's circumstances and EU rights, consistent with the Rottmann and Tjebbes standards. If the CJEU rules that the Italian approach is incompatible with EU citizenship law, Italy will be required to bring its law into compliance with that ruling or face infringement proceedings by the European Commission.

That outcome is not certain. The Italian government will make its case to the CJEU that its two-generation cap reflects a legitimate interest in ensuring genuine ties to Italy, that the original non-acquisition framing is legally sound, and that member states retain the sovereign competence to define their citizenship rules even in ways that affect the EU citizenship of people who might otherwise have qualified. The CJEU may well agree, at least in part.

But the question is now before Luxembourg. After sixteen months during which the global community of Italian descendants had been told that the institutional path to challenging the Tajani Decree was closed, the Italian Constitutional Court has opened it again — not in the Italian domestic system, but in the European one. The court that has, for thirty years, established and refined the principles governing what EU citizenship means and what member states can and cannot do to the people who hold it will now have the opportunity to decide whether Italy's most sweeping restriction on citizenship by descent in modern history is compatible with the legal architecture of European integration.

The floor, as one commentator noted, is now Luxembourg's.

Sources

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