By Luigi Minari
The publication of Ordinance No. 147/2026 by the Italian Constitutional Court immediately sparked interest among scholars of citizenship by descent (jure sanguinis). Less than three months after the publication of Judgment No. 63/2026 (which was heavily criticized in legal circles for the arguments used to defend the constitutionality of the Tajani Law), the Court... decided to submit it to the Court of Justice of the European Union. preliminary questions concerning the compatibility of Article 3-bis of Law No. 91/1992, introduced by the so-called Tajani Law, with Union law.
The main legal novelty lies precisely in the preliminary ruling, since, until then, with the aforementioned Judgment No. 63/2026, the Court had considered the intervention of the Court of Justice unnecessary, understanding that the discipline introduced by the Italian legislator did not raise relevant questions of Union law.
However, it is necessary to consider the perspective from which the Italian Constitutional Court seeks to bring the matter to the attention of the European Court.
The Supreme Court reaffirmed: citizenship is born with the person.
- New legal front opened
- Processes can still be filed.
- Individual assessment before any decision.
With the publication of Judgment No. 63/2026, the Constitutional Court abandoned, without expressly stating so, a dogmatic construction consolidated over decades regarding the nature of citizenship iure sanguinis, namely: of original right, imprescriptible and exercisable at any time, introducing, reducing it to a mere expectation of right that would have been affected by a "preclusione originaria all'acquisto della cittadinanza italiana" established through the Tajani Law.
And the relevance of Ordinance No. 147/2026 stems precisely from this context.
Far from simply continuing Judgment No. 63/2026, the new decision reveals that the legal difficulties raised by that construction were more profound than initially apparent. However, instead of expressly re-examining the premises adopted a few months earlier, the Court fully preserves the legal category it created and shifts the discussion, from this perspective, to Luxembourg, assigning to the Court of Justice of the European Union the task of verifying its compatibility with Union law.
This route deserves attention.
Not because constitutional courts are prevented from reviewing previously adopted understandings. Jurisprudential evolution is an inherent element of the judicial function, especially in constitutional matters. The real problem arises when a profound break with consolidated dogmatic categories occurs without explicitly stating the reasons that justify abandoning the previous construction, especially when that same construction had been reaffirmed by the Constitutional Court itself a few months earlier, in Judgment No. 142/2025.
It is precisely this circumstance that makes Sentence No. 63/2026 methodologically problematic. The decision not only departs from the long tradition built by the Court of Cassation regarding the declaratory nature of the recognition of citizenship iure sanguinis, but also departs from the orientation recently reaffirmed by the Constitutional Court itself, without explaining how the category of "preclusione originaria all'acquisto della cittadinanza" could be reconciled with the understanding, until then consolidated, that citizenship iure sanguinis constitutes a status civitatis acquired at the moment of birth by reason of filiation.
This lack of justification is not simply a matter of writing technique.
It directly impacts one of the pillars of the rule of law: legal certainty.
Traditionally, legal certainty is analyzed from the perspective of the stability of legislation and the protection of citizens' legitimate expectations in the face of normative changes. However, in a constitutional state, it also presupposes a minimum of stability, coherence, and predictability of constitutional jurisprudence itself. Although no court is absolutely bound by its precedents, overturning established understandings requires particularly rigorous reasoning, precisely because the authority of Constitutional Courts rests not only on their institutional competence but also on the rationality, coherence, and integrity of their argumentation.
From this perspective, the controversy raised by the Tajani Law transcends the discussion itself regarding the retroactivity of article 3-bis of Law No. 91/1992.
The real problem shifts to a prior level: the redefinition of the very legal nature of citizenship iure sanguinis promoted by Sentenza n.º 63/2026.
This redefinition is not only manifested in the outcome achieved by the decision.
It reveals itself, above all, in the language used by the Court.
The Constitutional Court's decision changed the landscape. The new citizenship law will now be reviewed by the European Union's courts of justice.
The replacement of the traditional understanding of citizenship as a status acquired at birth with the idea of a “preclusione originaria all'acquisto della cittadinanza” (original preclusion of citizenship acquired at birth) is not merely a terminological innovation. By resorting to this category, the Court seeks to shift the focus of the legal controversy itself. Until then, the question was whether the Tajani Decree could have retroactive effects on a citizenship already acquired, as Italian jurisprudence had almost uniformly maintained. With the introduction of the new category, the discussion is now formulated from another perspective: it ceases to deal with the retroactive application to a pre-existing status and is presented as a simple regulation of the conditions for acquiring Italian nationality.
It's not just the terminology used that changes.
The legal framework of the controversy itself is altered.
This change takes on even greater importance when one observes that, in the procedure foreseen by Article 267 of the Treaty on the Functioning of the European Union, the national court not only asks questions of the Court of Justice, but also describes the facts, identifies the relevant legal institutions, and qualifies the controversy submitted to European review.
The formulation of the prejudicial question is never neutral.
The person who asks the question also largely defines the universe of possible answers.
By referring a controversy built upon the category of "preclusione originaria all'acquisto della cittadinanza" to the Court of Justice, the Constitutional Court is not merely conveying an interpretative doubt about Union law. It is also conveying a specific key to understanding the Tajani Law itself.
Naturally, this qualification does not bind the Court of Justice.
Could the Court of Luxembourg conclude that the category established by Judgment No. 63/2026 correctly describes the legal nature of Article 3-bis? However, could it reach the opposite conclusion and recognize that, regardless of the terminology used by the Constitutional Court, the rules introduced by the Tajani Law apply retroactively to a status civitatis previously acquired according to Italian legal tradition?
If this happens, the very structure of the harmful issue will inevitably be transformed.
Before even answering whether the Union's law allows for an "original preclusion to the acquisition of citizenship," it will be necessary to verify whether this category effectively constitutes the appropriate legal qualification of the phenomenon governed by Article 3-bis of Law No. 91/1992.
Perhaps this is precisely the most relevant aspect of Ordinance No. 147/2026.
By referring the controversy to the Court of Justice, the Constitutional Court did not merely export a legal doubt. It also exported the dogmatic category constructed by Judgment No. 63/2026.
It will now be up to Luxembourg to decide not only whether EU law allows for the solution proposed by the Italian Constitutional Court, but, before that, whether it accepts the very conceptual premise upon which that solution was built.
Because if the premise is wrong, the answer will inevitably follow a different path.
Perhaps this is, after all, the real question before the question.
Luigi Minari is a lawyer registered with the Brazilian Bar Association, São Paulo Section, a Portuguese lawyer before the Faro Council and an Italian avvocato stabilito at the Bari Forum.
Jicxjo
August 2 from 2026 at 15: 24
"You're sending comments too quickly. Hold on a minute."
WTF ?!
I wrote a long comment and when I finally went to post it, this bizarre message appeared. I haven't posted any other comments today; this was the first one. And I use a slide-out keyboard to type quickly on my phone, what's the problem?
Jicxjo
August 2 from 2026 at 15: 53
The longer comment, regarding the legal issue itself, is not yet showing up here. It didn't cause an error, but it seems to have fallen into limbo. Could you please check it? I understand that the content is of public interest and there is no reason for censorship by the site.
Jicxjo
August 2 from 2026 at 15: 55
I'll try reposting it in bits and pieces, to see if it works:
Jicxjo
August 2 from 2026 at 15: 58
It continues censoring, even the first paragraph... Why?!
Alcimar Bortolotti
August 4 from 2026 at 10: 08
Excellent article, however, it's written using mostly technical terms that are difficult to understand for those without a legal background. In my opinion, it could have been summarized in a more accessible way.