The debate surrounding the Tajani Decree and Italian citizenship continues to evolve, moving to Luxembourg where the Court of Justice of the European Union (CJEU) is set to rule on the Picuso case (Case C-816/26). To clarify the dynamics of this legal landscape, we reached out to Aprigliano International Law Firm for a technical overview.
The core issue involves Article 3-bis of Law 91/1992, introduced in March 2025 via Law Decree 36/2025 and later converted into Law 74/2025. This provision narrowed the criteria for recognizing citizenship jure sanguinis for individuals born abroad holding another nationality, stipulating that such individuals are treated as if they never acquired Italian citizenship, subject to specific exceptions.
As the legal team at Aprigliano explains, Italian law treated citizenship by descent as a status acquired at birth until March 2025. This principle had been repeatedly affirmed by Italian courts and was recently reaffirmed by the Joint Sessions (Sezioni Unite) of the Court of Cassation in Ruling 24045/2026. Consequently, verification by a consulate, municipality, or court merely confirms an existing legal status rather than granting a new citizenship. The administrative or judicial act does not create citizenship; it certifies its continuous existence from birth, provided the chain of transmission remained legally intact under the rules in effect over time.
Under that framework, no general generational cap existed. Anyone who could prove an unbroken line of transmission from an Italian ancestor could secure recognition of citizenship, regardless of how many generations had passed or whether they had ever held an Italian passport.
With the enactment of the 2025 reform, lawmakers introduced a departure from this general principle. Article 3-bis establishes that individuals born abroad who hold another nationality are deemed never to have acquired Italian citizenship—even if born before the reform took effect—unless they qualify for strict statutory exemptions. One such exception applies if a parent or grandparent holds, or held at the time of death, exclusively Italian citizenship.
Aprigliano Law Firm highlights that this phrasing impacts individuals born many years before the new legislation came into force. In Ruling 63/2026, the Italian Constitutional Court rejected the constitutional challenges raised in that specific proceeding, characterizing Article 3-bis not as a revocation of citizenship, but as an original bar to its acquisition.
However, the Constitutional Court distinguished the standing of individuals who had taken concrete steps to seek recognition before March 27, 2025, but had not formally completed the process. In those circumstances, a distinct issue regarding the protection of legitimate expectations may arise, requiring evaluation based on specific facts.
Attorney Salvatore Aprigliano focuses his analysis on this tension between the former and current legal regimes. The Picuso case directly questions whether the new rules conform with Article 9 of the Treaty on European Union (TEU) and Article 20 of the Treaty on the Functioning of the European Union (TFEU).
Defining the rules governing the acquisition or loss of nationality falls under the sovereign jurisdiction of individual member states. However, as the legal team at Aprigliano International Law Firm notes—referencing established CJEU case law from Rottmann and Tjebbes to Stadt Duisburg—state authority is bounded by EU law whenever domestic measures affect European Union citizenship and its associated rights, such as freedom of movement and residence.
While most prior precedents concerned the loss of national citizenship, the Italian case presents a distinct nuance: lawmakers chose to frame the provision not as a loss or revocation, but as a non-acquisition ab initio. This conceptual distinction lies at the heart of the debate.
In the Picuso case, the CJEU must clarify whether Articles 9 TEU and 20 TFEU permit a member state to apply a provision like Article 3-bis to individuals born before its enactment. In addressing this issue, core principles of European jurisprudence—such as proportionality, individual impact assessments, and the practical opportunity to protect one’s legal status—may prove critical. The Court must determine whether and to what extent these principles apply when national law frames the outcome not as a loss of citizenship, but as a failure of original acquisition.
Recent developments in European case law add another dimension. In Commission v. Malta, despite a context distinct from citizenship by descent, the Court established that EU law constraints apply not only when a state regulates the loss of citizenship, but also when it exercises authority over granting citizenship.
The attorneys at Aprigliano also address a frequent point of confusion: a future ruling by the Court of Justice will not substitute the authority of Italian courts or automatically determine individual outcomes. The CJEU lacks the power to directly strike down or annul Italian legislation. Through the preliminary ruling procedure, its role is to interpret EU law and provide national courts with the required framework to decide their cases.
Under the principle of primacy of EU law—established in landmark rulings such as Simmenthal—if the European Court concludes that Article 3-bis conflicts with directly applicable EU provisions, Italian judges would be required to uphold the supremacy of EU law by setting aside the non-compliant domestic rule in pending cases, without awaiting action from Parliament or a new decision from the Constitutional Court.
Crucially, this would not trigger an automatic approval of all citizenship claims, just as the current referral to the Court of Justice does not result in automatic dismissal or suspension of proceedings. Every dispute will continue to be decided by the national court on the basis of the specific circumstances of the case, the applicable legal provisions, the supporting documentation, and the legal arguments submitted to the court. For this reason, experts at Aprigliano International Law Firm emphasize that legal representation remains vital throughout the Luxembourg proceedings. While the Court of Justice will outline the governing principles of EU law, Italian judges must apply those principles to each case. Reconstructing the factual record, identifying applicable statutes, and delivering robust evidence and legal arguments will therefore continue to play an important role in the final decision.
