The context
In March 2024, 12 petitioners filed a case in the Bologna court seeking recognition of their Italian citizenship by descent (iure sanguinis). Their claim was based on their female Italian ancestor, born in Marzabotto in 1878. Judge Marco Gattuso, assigned to the case, raised several questions to the petitioners’ representative regarding their permanent domicile (confirmed to be in Brazil), intentions of the younger petitioner to work or study in Italy, and whether any petitioner had previously lived temporarily in Italy (the attorney could not respond to the latter two inquiries).
The attorney emphasized that Italian citizenship is an automatic right at birth under iure sanguinis and independent of additional conditions. Despite this, Judge Gattuso expressed concerns about whether the current framework for citizenship transmission under Italian law aligns with the Italian Constitution, prompting him to refer the matter to the Constitutional Court for review of Article 1 of Law 91/1992.
The judge’s referral highlights what he deems a significant issue: Italy is one of the few countries with no generational limits for recognizing citizenship by descent, creating a unique situation where potentially over 60 million people worldwide could claim Italian citizenship—more than Italy’s current population.
The Judge’s legal concern
The judge raised concerns that this framework could undermine the principle of sovereignty (Article 1 of the Constitution), as the population of individuals claiming citizenship lacks substantial ties to the Italian community. This raises questions about proportionality (Article 3) and compliance with international principles of effective nationality (Article 117), as exemplified by the Nottebohm doctrine (a case decided by the ICJ in The Hague, Netherlands).
The judge also highlighted the challenges this influx poses for Italy’s administrative and judicial systems, citing the surge in citizenship cases across Consulates (referring to a Ministry of Foreign Affairs statistic of approximately 800,000 pending cases in 2007) and courts (referring to 73% of all civil cases in Venice’s court involving citizenship recognition in 2024).
The referral suggests that the Constitutional Court consider introducing time limits (e.g. a maximum of 20 years of absence from Italy), generational limits (2 generations), contingent on evidence that the petitioner(s) or another of the ancestor’s descendants has lived temporarily in Italy for at least two years. This would be to ensure a genuine connection between applicants and Italy.
Legal assessment
The Constitutional Court has several options, ranging from outright rejection to the annulment of Article 1 of Law No. 91 of 1992:
- The Court may determine that the issue raised is non-justiciable, as it pertains to purely “political questions”. This outcome would end the Court’s involvement. While this would be the most favorable outcome for Italian descendants worldwide, I believe the Court is unlikely to dismiss the case outright without providing some guidance for lawmakers.
- If the Court finds grounds for a decision but ultimately decides to dismiss the case, it may reject the question raised by the Bologna judge and clarify that no constitutional conflict exists, perhaps through a refined interpretation of the provision.
- Alternatively, the Court may reject the referral but acknowledge that the provision is at risk of unconstitutionality and offer guidelines for lawmakers to amend the law. I believe this is the most likely approach, given the significant concerns among Italian politicians and public authorities. Consequently, the Court will likely provide directions for addressing the matter in a more coordinated and legally sound manner.
- The Court could also modify the provision by removing or adding text through interpretation or combining both approaches. This approach was used by the Court in 1983 when it deemed Article 1 of the earlier citizenship law (No. 555/1912) unconstitutional for allowing citizenship to be transmitted only by the father. The Court ruled that the term “father” should be interpreted as “father and mother.” However, I find such an approach unlikely here due to the concise nature of Article 1 of Law No. 91. There is nothing to delete to resolve a constitutional conflict, nor can the Court extensively interpret the provision by adding conditions, as this would involve overly complex and politically sensitive decisions.
- Finally, the Court could declare Article 1 of Law No. 91/1992 unconstitutional. This approach was previously used by the Court in 1975, when it ruled as unconstitutional a provision of the citizenship law that caused Italian women to automatically lose their citizenship upon marrying a foreigner (Article 10, Paragraph 3 of Law No. 555/1912). However, this outcome is improbable in the current case, as such a ruling would leave Italy without a framework for citizenship by descent.
Conclusion
There is no doubt that the referral highlights the urgent need for Parliament to address the inherent tension between Italy’s historical diaspora policies and the realities of modern sovereignty, identity, and governance.
Consequently, I believe the Constitutional Court’s decision will likely steer the direction for future legislative reforms, rather than immediately altering citizenship rights. During this process, I do not expect other judges to suspend their cases; instead, they will most likely continue to grant citizenship in accordance with the current formulation of Article 1 of Law No. 91/1992.
A year from now, if the Constitutional Court were to move forward as suggested in the third option above, the process of amending the citizenship law would pass to Parliament. At that point, it would depend on whether Italian politicians consider this issue urgent. The Italian Parliament has, at times, neglected to implement changes recommended by the Constitutional Court.
However, it should be noted that, in addition to the well-known bill by Senator Menia introducing language requirements, a prominent member of the current right-wing coalition governing Italy, Deputy Tajani (former President of the EU Parliament, current leader of Berlusconi’s party, and Minister of the Interior in the current government), has recently expressed the need to reform the citizenship law. Tajani’s proposal focuses on generational limitations. If he, or another senior leader within the governing party, takes the lead in pushing for reform, we may see an amendment within the next 3 years. The extent of the revision would be closely tied to the guidelines set forth by the Constitutional Court.
We will gain a better understanding of the potential changes to the Italian citizenship law in the coming years after the Constitutional Court’s ruling next year.