Introduction

The rules governing acquisition of citizenship by descent vary among European states. Italy had been among the most liberal countries, with citizenship cascading down the generations, creating pools of people in other countries (often outside of Europe) who needed only to seek formal recognition of their entitlement, in order to take up Italian citizenship and thus membership of the legal and political community of persons belonging to Italy.

Generally, many such persons will also enjoy also the nationality of the country of their birth and residence, for example the United States or another country in the Americas, and they will associate themselves with that country. For such people, Italian citizenship is a bonus, derived from an ancestral link with a person born in Italy and opening the gateway not only the right to live and work in Italy but also, by virtue Italian citizenship being a qualifying nationality, serving to confer EU citizenship and thus the freedom to live and work throughout the territory of the European Union.

In the United Kingdom, things are done differently. Absent the application of narrow exceptions, British citizenship flows automatically only to the first generation born outside the UK (and all save one of the remaining British overseas territories) to a UK-born British citizen parent, see s. 2 of the British Nationality Act 1981 (‘1981 Act’). However, the rigour of that approach is tempered as the 1981 Act makes provision for the on-application registration by entitlement of certain persons born out the UK (and the qualifying British overseas territories) to persons who are themselves British citizens by descent, see  s. 3(2) and s. 3(5) of the 1981 Act.

Recently, Italy has moved away from its liberal position on citizenship by descent. While it may not have reached the narrowly cast provision obtaining in respect of British citizenship by descent, the way in which the new rule has been drawn had led to adverse criticism, as well as litigation before senior Italian courts and soon the Court of Justice of the European Union (‘CJEU’).

The Change

Prior to amendment, Italian citizenship law was articulated as a citizenship acquired by descent from an Italian citizen (jus sanguinis). Law No. 91 of 5 February 1992 provided that Italian citizenship was acquired at birth by any person whose father or mother was an Italian citizen:

Articolo. 1
1. È cittadino per nascita:
a) il figlio di padre o di madre cittadini;

…

However, following the introduction of an amendment introduced by Decree-Law no. 36 of 28 March 2025 (perfected by Law No. 74 of 25 May 2025), Article 1 of Law No. 91 of 5 February 1992 is qualified in new ways.  

First, new Article 3-bis of Law No. 91 of 5 February 1992, prohibits automatic acquisition of Italian citizenship by descent where a person born abroad holds another nationality (“…e’ considerato non  averemai acquistato la cittadinanza italiana chi e’ nato all’estero…. ed e’ in possesso di altra cittadinanza…”) unless an exception applies. This intolerance of multiple nationalities for persons of Italian descent born outside of Italy may be motivated by the desire to ensure a real or genuine link with Italy but it is a blunt way to try and secure that aim. Historically, Italy has been a country of emigration and descendants of people from Italy may have had little choice in acquiring the nationality of their country of birth. Moreover, in an age of high mobility, intolerance of multiple nationalities risks alienating (literally and metaphorically) those who would have much to contribute to Italy and the Italian people.

Second, the new law is retrospective in character (“…anche prima della data di entrata in vigore del presente articolo…”). As such, a break in the flow of Italian citizenship by descent may occur where a parent or grandparent is no longer to be considered an Italian citizen by virtue of holding or having held another citizenship. In such a scenario, a person born outside of Italy today, may no longer automatically acquire Italian citizenship by descent at birth on account of an ancestor holding another nationality that prevented them from being also an Italian citizen. The retrospective character of the new law, its operation ex tunc, is regrettable as it operates to remove Italian citizenship from persons who would otherwise have held it. As noted below, the consequential loss of EU citizenship brings this loss of Italian citizenship within the scope of EU law.

However, there are four possible exceptions to the new loss provisions. The first two concern the need for an application to have been made by the end of 27 March 2025, in the first case to an administration authority (competent consular office or mayor), in the second to a judicial authority. The third and fourth are of more enduring application.

The third exception is that one parent or grandparent is solely an Italian citizen or was so when they died (“…un ascendente di primo o di secondo  grado  possiede,  o possedeva al momento  della  morte,  esclusivamente  la  cittadinanza italiana…”). As with the general exclusionary rule, this category of exception places value on possessing solely the citizenship of Italy.

The fourth exception is that one parent or adopting parent having acquired Italian citizenship resided in Italy for a minimum of two years continuously prior to the child’s birth or adoption (“…un genitore o adottante e’ stato  residente  in  Italia  per almeno  due  anni  continuativi  successivamente  all’acquisto  della cittadinanza italiana e prima della data di nascita o di adozione del figlio…”). In substance, the legislative policy displayed here has much in common with the provision made in s. 3(2) of the 1981 Act for British citizens by descent to live in the UK at any time for three years prior to a child’s birth outside the UK, thereby giving rise to that child having an on-application entitlement to register as a British citizen.

Constitutional and Political Issues

The new limitations placed on the transmission of Italian citizenship by descent under Law No. 91 of 5 February 1992 are a retreat from the high-water mark of pure jus sanguinis. Further, the retrospective effect of the law is injurious to citizenship rights and need not have been a feature of the new provision. However, there are public policy justifications for seeking to place some limitations on indefinite transmission of citizenship by descent even if the actual techniques deployed to achieve the public policy goal are to be deprecated in the instant case. It is not offensive to aim at ensuring that citizenship by descent is conferred on those who maintain or wish to establish a genuine link with Italy. Further, on democratic grounds, there is a balance to be struck between the creation of citizens by descent and their consequential, potential, enfranchisement as citizens with full voting rights in the Italian Parliament, a body that organises the political, social and economic life of the inhabitants of Italy, by legislating for them, levying taxes by consent, and spending revenue on matters of concern to them.

In any event, Italian citizenship only goes so far back. Italy was constituted as state on 17 March 1861, with some regions joining later. Before that, in a legal sense, there were not Italians. As regards citizenship, there is no continuity with the laws of states existing in the Italian peninsular and Sicily prior to unification. Contrast the position in the UK, where the English statute De natis ultra mare of 1350 remains good law for British nationality purposes, albeit that it has modest effect. Moreover, there were already some limitations in the operation of the jus sanguinis rule in Italy. For example, citizenship by descent in the maternal line operates only for those born from 1948 onwards.

The modern Italian Constitution (in force from 1 January 1948) says relatively little about the determination of who is a citizen. By Article 117 of the Constitution, the State (as opposed to the Regions) has exclusive competence in citizenship matters. However, in addition, the Constitution articulates and protects the fundamental rights of Italian citizens at length. By way of constitutional review on a referral from a Court in Turin, the Italian Constitutional Court has held the new limitations of the transmission of Italian citizenship by descent to be constitutionally lawful, see Judgment No 63/2026 of 11 March 2026. The Court found that the Italian Parliament had been motivated to address a seeming divergence between the Constitutional principles and the letter and effects of Law No. 91 of 5 February 1992, that the Italian Parliament had a broad discretion to make citizenship laws, and that the new Law was compatible with the Constitution as, among other things, there was no infringement of vested rights (§9.2.4).

The role of EU law

However, in the same judgment the Italian Constitutional Court invoked the role of EU law and the EU legal order under the Treaty on European Union (TEU). In particular it invoked Article 2 TEU which provides:

“The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.”

The Court was concerned to ensure coherence between the Italian constitutional order and the wider EU legal order in which Italy participates as an EU member state. In concrete terms, loss of Italian citizenship or entitlement to Italian citizenship leads ipso facto to loss of European Union citizenship on the same basis (if the person concerned hold the nationality of no other EU member state). Thus, the change to Italian citizenship law may fall within the scope of EU law and thus within the jurisdiction of the CJEU.

The question of the compatibility of the Italian citizenship law changes with EU law has now become salient as, on 23 July 2026, in another case, the Italian Constitutional Court has referred to the CJEU a question as to the compatibility of the Italian citizenship by descent reforms with the provision made for EU citizenship by Article 9 TEU and Article 20 of the Treaty on the Functioning of the European Union (TFEU), see Italian Constitutional Court Order No. 147/2026. The CJEU will decide the case under EU law.

The simple question referred is whether whether Article 9 TEU and Article 20 TFEU preclude the adoption of a rule such as that provided for in Article 3-bis of Law No. 91 of 5 February 1992, insofar as it establishes an initial bar to the acquisition of Italian citizenship for persons born abroad (including those born prior to the entry into force of Article 3-bis) who hold another citizenship, unless one of the conditions specified in that Article is met.

The CJEU may very well reformulate this question into a series of questions that interrogate the question of compatibility. In answering them it will no doubt use the general principles of EU law, noting the limits of its competence in nationality matters, drawing on its existing jurisprudence and, thereafter, answering those questions in closely reasoned legal argument. Nationality lawyers and EU lawyers in particular will be watching to see whether it does so or whether it takes the looser approach to legal reasoning found in its much criticised judgment in Case C-181/23 Commission v Malta, where Malta’s citizenship by investment scheme was held to have led Malta to fail to fulfil its obligations under Article 20 TFEU and Article 4(3) (the principle sincere co-operation and assistance among the EU and its member states). The scope for the CJEU to make good law in answering the question referred by the Italian Constitutional Court will require further consideration on another occasion.