The negative decision regarding Italian citizenship, anticipated through a press release — to widespread surprise the day after the March 11 hearing — has now been formally developed.

On Thursday, April 30, the Constitutional Court published ruling No. 63/2026, in which it addresses for the first time the claim of unconstitutionality raised by the Court of Turin concerning the controversial Article 3-bis of Law No. 91/1992, introduced through the so-called “Tajani Decree.”

As early as July of last year, in this same column, we had pointed out that the Tajani Decree and Law No. 74, which ratified it, were already legally compromised.

That conclusion stemmed from the clear principles previously affirmed by the Constitutional Court itself in ruling No. 142/2025, through which the Court rejected constitutional challenges filed by several Italian tribunals against the uninterrupted transmission system of citizenship by descent (ius sanguinis), based on the alleged absence of a “genuine link” with Italy.

On that occasion, the Court stated categorically that:

“Current law has emphasized that status civitatis, founded on the parent-child relationship, possesses a permanent nature, is not subject to prescription, and may be claimed at any time, with the simple proof of the constitutive fact, namely having been born to an Italian citizen.”

In clear legal terms, being born to an Italian citizen — regardless of place of birth — automatically determines the acquisition of citizenship, with proof of that circumstance being sufficient. Furthermore, this original right is considered permanent, imprescriptible, and exercisable at any time, without requiring prior recognition by ancestors.

Imprescriptibility, properly understood, means that no law or decision of any kind may limit or annul the right to recognition of Italian citizenship.

Consequently, the right to Italian citizenship is acquired fully and perfectly from birth, while administrative or judicial recognition is merely declaratory rather than constitutive.

However, Article 3-bis introduced by the Tajani Decree openly conflicts with these consolidated principles of constitutional jurisprudence and the so-called “living law” established by the Court of Cassation.

In particular, it created an arbitrary distinction between those who applied for recognition of citizenship before March 28 and those who did not, treating the latter as though they had “never” been Italian citizens despite fulfilling the ius sanguinis requirements.

Ruling No. 63/2026 validates this regulation and marks a turning point in the Italian legal system regarding citizenship by descent. Indeed, it introduces and consolidates the criterion of the so-called “effective or genuine link” (genuine link), justifying — more in political than strictly legal terms — the challenged legislative modifications.

In this context, the ruling refers to “a multitude of foreign citizens with a ‘virtual’ Italian citizenship, unverified and capable of being activated without time limits.” Likewise, repeated references are made to “an enormous mass” or “a multitude of foreign citizens,” described as “detached from the territory,” “without an effective link,” or “substantially alien to the national community.”

This language is not neutral: it contributes to devaluing the original right to citizenship by reducing it to a conditional expectation.

A significant conceptual shift thus occurs: citizenship exists from birth, but requires verification in order to produce effects.

The Court deliberately shifts the focus from substantive rights toward formal recognition in order to legitimize legislative changes affecting rights that had previously been considered imprescriptible.

Whoever is born to an Italian citizen acquires a full and intangible right from birth, as noted above. However, in 2026 the Court does not formally deny this principle, but empties it of practical effectiveness by implicitly asserting that the right lacks operability without effective legal recognition.

This reinterpretation breaks with more than a century of legal tradition based on ius sanguinis by weakening the concept of acquired rights.

The most critical aspect of the ruling lies in the fact that it changes the legal qualification of the situation without explicitly acknowledging or adequately justifying it: a transition occurs from a full and imprescriptible right to a position subject to verification, without clear or reasonable foundation.

As the ruling itself acknowledges:

“The leitmotif of the Tajani reform is the principle of effectiveness, namely the need for citizenship to be reserved for those connected by ‘effective ties’ to the Republic.”

This approach essentially reflects a legislative policy choice: reducing the number of Italian citizens born abroad in favor of those considered more “connected” to the territory.

The Court further justifies the retroactive application of the law by stating that:

“In the Italian case, a solution projected only toward the future would have left intact the problem the reform intended to solve,” and that “the objective of the decree would have been frustrated without its application to the past.”

However, it is not the role of the Constitutional Court to validate the political goals of legislation, but rather to determine its conformity with the Constitution. By justifying retroactivity according to the success of legislative policy, the Court adopts a teleological logic typical of political power, distancing itself from its role as guarantor and constitutional limit.

The true problematic core of the Tajani Law is its retroactivity, which implies the generalized elimination of a perfected acquired right to citizenship status already incorporated into the legal patrimony of millions of individuals.

As Sabino Cassese, emeritus judge of the Constitutional Court, once stated, the Court must essentially be “counter-majoritarian,” meaning independent from political majorities and oriented toward the protection of fundamental principles.

The Constitutional Court is not a political body, but rather a “judge of laws,” called upon to oversee the legislature and government, not to collaborate with them in pursuing political goals.

Ruling No. 63/2026 appears to mark a shift in role: from guarantor of individual rights to legitimizer of a controversial legislative policy.

This scenario inevitably opens new fronts of litigation. The matter has already drawn the attention of the Court of Cassation, which met on April 14, and it will be necessary for that court to clarify the scope of these new definitions. Given the content of this ruling, it is foreseeable that the Tajani Law may also reach the sphere of European jurisdiction.

Those who were recognized as Italian citizens before the Tajani Law, despite having been born abroad, or those who filed judicial or administrative claims before March 28, should remain calm: their rights and Italian citizenship remain intact.

In practical terms, the ruling confirms the validity of the Tajani Law, now creating an obstacle that is, at least for the moment, extremely difficult to overcome for millions seeking access to Italian citizenship.

Nevertheless, the argumentative weaknesses of the ruling do not close the legal debate nor eliminate the possibility of future litigation arising from the interpretation of both the law and the ruling itself.

Most strikingly, however, the validation of the “effective link” criterion could, within a few years, lead to the gradual disappearance of the so-called “Italians around the world,” with consequences not only legal, but also economic, cultural, and geopolitical for Italy itself.

Pablo Munini
Attorney – Buenos Aires Bar Association