Italian Constitutional Court ruling no. 63/2026 has received significant academic analysis. Simone Marinai, Associate professor of European Union Law at the University of Pisa, published in the Italian legal journal. Eurojus This is a doctrinal contribution—a type of in-depth scientific article on Italian law—dedicated to the foundations and weaknesses of the decision that validated the restrictions on Italian citizenship by descent introduced by the Tajani Decree. The text is part of... Issue no. 2 – 2026 from the publication, one of the most important in European law in Italy.
Marinai's central conclusion is straightforward: the ruling "is destined to constitute a point of reference in the debate on Italian citizenship, but not necessarily a point of closure."
The theory of original preclusion and its contradictions.
The core of Judgment No. 63/2026 — and the point most contested by Marinai — is the legal qualification of Article 3-bis introduced by the Tajani Decree. The Constitutional Court decided that the rule does not represent a revocation of citizenship already acquired, but an original preclusion to its recognition.
Marinai identifies an internal contradiction in the decision itself. The Court cites the United Sections of Cassation of 2022, which state that the status civitatis has a “permanent and imprescriptible character, and may be claimed at any time based on the simple proof of birth as an Italian citizen.” But, according to the professor, the Court omits the immediately preceding passage of the same decisions, which clarifies that “citizenship by fact of birth is acquired by original title.”
For Marinai, the consequence is serious: “the characterization of the rule as 'non-retroactive acquisition' is not adequate to describe its real effects. The rule affects a status that, under the previous rules, had already been consolidated at the time of birth — retroactively depriving it of legal relevance.”
European law reduced to a formal guarantee.
Marinai identifies a second serious problem in the way the Constitutional Court has treated European Union law. Although the Court recognizes that the discipline of citizenship must respect Articles 9 of the TEU and 20 of the TFEU, it limits its application to cases where status has already been formally certified.
According to the professor, this choice "risks significantly reducing the scope of protection offered by Articles 9 of the TEU and 20 of the TFEU, removing from the control of European law a category of situations that, although not formally consolidated, exhibit a high degree of stability in substantive terms."
The result, according to Marinai, is “a strongly mediated conception of European citizenship: it does not operate as a substantial limit to the retroactive redefinition of the conditions of national citizenship, but only as a guarantee against the loss of a national status that has already been formally recognized.”
Proportionality without individual examination
A third weakness pointed out by Marinai concerns the absence of any mechanism for individual assessment. The rule operates automatically and in a generalized way on an indeterminate plurality of people. For the professor, "the absence of any form of individual examination is in tension with the obligation, affirmed by the Court of Justice, to proceed with a case-by-case assessment of the consequences of the measure, considering the personal and family situation of the person concerned and the impact on the rights derived from European citizenship."
The so-called "compensatory measures" of the Tajani Decree are also criticized. According to Marinai, "these measures do not compensate for the incision on status, but rather presuppose it, offering an alternative channel of access to status that is not legally equivalent to the original entitlement."
The choice not to consult the Court of Justice
Marinai also criticizes the Constitutional Court's decision not to refer a preliminary ruling to the Court of Justice of the European Union. According to the professor, the option taken "closes the confrontation on the assumption that the distinction between certified and non-certified status is sufficient to exclude the application of European law, without consulting the Court of Justice on the soundness of this distinction in light of the function of European citizenship as a fundamental status."
Final considerations
At the close of contributionMarinai lists the weaknesses that the ruling leaves unanswered: “the extensive use of the principle of effectiveness; the underestimation of the declaratory nature of the recognition of status; the generalized presumption of the absence of an effective link; the qualification of alternative measures as compensatory, without guaranteeing the true continuity of status; the weakness of the arguments on the predictability of retroactivity; and the choice not to trigger a preliminary ruling in the face of issues not fully resolved by European case law.”
The debate, therefore, is far from over. The courts of Mantua and Campobasso have public hearing scheduled for June 9, 2026 Regarding the same legislation. And the Sezioni Unite of the Court of Cassation are still waiting to deliver their decision — expected by mid-June.
Source: Simone Mariners, “Cittadinanza iure sanguinis e diritto dell'Unione: la Corte costituzionale e la riforma della cittadinanza italiana”, Eurojus, Issue n. 2 – 2026, rivista.eurojus.it. Associate Professor of European Union Law, University of Pisa.
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