The Court of Bologna Order Challenging Jus Sanguinis

On Nov. 27, 2024, the Ordinary Court of Bologna (Judge Marco Gattuso) issued an order raising constitutionality doubts about Article 1 of Law No. 91 of Feb. 5, 1992, regarding Italian citizenship iure sanguinis. This ordinance has sparked a lively debate in the legal world and among the Italian-descendant community. In this post, you will find the PDF pf the Italian original version (below) and, immediately after the full text automatically translated in English (there might be translation mistakes).
In this other post, my legal analysis of the court order, and its implications for the future of jus sanguinis.

N.R.G. 3080/2024 ORDINARY COURT OF BOLOGNA Specialized section on immigration, international protection and free movement of EU citizens

In the civil case registered at no. r.g. 3080/2024 promoted by:

1. as parent of the minor
2. as parent of the minor
3. all with the lawyer Antonia Cannizzaro

INTERNAL MINISTRY

CONTUMACEFUL RESISTANT

THE PUBLIC PROSECUTOR NECESSARY INTERVENTION

Judge Dr. Marco Gattuso, upon dissolution of the reservation made on 23 October 2024, issued the following ORDER

1. With appeal pursuant to Article 281-undecies of the Code of Civil Procedure, filed on 1 March 2024, the appellants asked to «ascertain and declare that – born in Brazil on and resident in born in Brazil in Rio de Janeiro, and resident in Rio de Janeiro, born in Brazil in Rio de Janeiro, and resident in born in Brazil on Brasilia postcode 72.583-400, and resident in born in Brazil and resident in Brasilia, postal code 71.937-40, in Brazil in Brasilia postal code 72594-011, all residents in born in Brazil in Brasilia postal code 73030-053, born in Brazil and born in Brazil in Rio de Janeiro postal code 25715-131, Brazil born in Brazil resident in born in Brazil the and resident in born in Brazil the born anta Maria, resident in born in are Italian citizens from birth as descendants of an Italian citizen who has validly transmitted Italian citizenship” and consequently to “order the Civil Registrar of Municipality of Marzabotto (BO) as the municipality of birth of the Italian immigrant, to proceed with the necessary annotations and transcriptions in the civil status registers of the population of Marzabotto (BO)”.

The case was assigned to the judge and a hearing was set for October 16, 2024, held via videoconference. The Ministry of the Interior did not appear through the State Attorney’s Office, nor did the Public Prosecutor intervene in court despite regular communication to the same. At the hearing on 16 October 2024, the appellants’ defense represented «that these are people descended from an Italian citizen born in Marzabotto in 1874 without any interruption of the line of descent therefore insisting on the acceptance of the applications; the defense also represents that citizenship was not previously requested from the Brazilian Consulate as it involves maternal descent; also notes that he has filed the negative certificate of naturalization of the ascendant; at the express request of the judge, the defender represents that all the appellants are permanently resident in Brazil, in the various districts, including Sao Paulo; at the express request of the judge, the defender represents that he does not know whether they have ever stayed, even for short periods, in Italy, but they have an interest in the recognition of citizenship for emotional reasons and also because some of them, for example the younger ones, they probably intend to come here to work or study; in particular, the applicant often travels for work and is currently in Portugal for work reasons; at the express request of the judge, the defender states that he does not know whether any of the appellants have an actual intention to move to Italy, noting that the request originates from a right of blood, the same is proposed for mainly emotional reasons, beyond specific transfer plans to Italy which, at present, are not known to the defender”.

Upon dissolution of the reservation, with an order dated 18 October 2024, having acknowledged the regularity of the notification and the failure of the defendant to appear, the defendant was declared in absentia and the case was postponed for a new discussion with the appellants’ defense at the hearing on 23 October 2024.

At the hearing on 23 October 2024 the defender represented «that he has contact above all with the appellant lady who is able to respond to the defender in Italian and acted as spokesperson for the other relatives, so the defender is unable to report whether the others know the language; upon request from the judge, the defender represents that the lady has not attended, as far as she knows, Italian courses, but the defender has exchanged e-mails with her, despite never having met her nor having had telephone exchanges, and the same was able to maintain these contacts in Italian, acting as said spokesperson for the others, with whom the defender did not have direct relations”.

The Judge therefore represented to the defender of the appellant parties his intention to raise an objection of constitutional illegitimacy of the provision referred to in the art. 1, Citizenship Law due to suspected incompatibility with the parameters referred to in articles 1, 3, and 117 of the Constitution, with the consequent need to suspend the trial pending the decision of the Constitutional Court and the defender, having given notice, reserved the right to intervene in the trial ahead of the Consulta. The case was placed in reserve.

2. The appellants are all citizens of the Federal Republic of Brazil, resident there, who have requested recognition of Italian citizenship based on the criterion of descent, so-called. jure sanguinis, noting that they are direct descendants of , an Italian citizen, born in Marzabotto (BO) on 27 April 1874. She emigrated to Brazil where she lived all her life, until her death in 1976 at the age of 102 , also maintaining Italian citizenship, having never renounced it. In 1911, she married the Brazilian citizen and had three daughters: Da , born on 6 June 1922, , born on 5 June 1931 and , born on 13 August 1953. The twelve appellants, therefore, on their own or as legal representatives of the minor children, have requested the court, in their capacity as children or grandchildren of the three daughters of the Italian citizen, therefore her grandchildren or great-grandchildren, for recognition of Italian citizenship by descent from same.

2.1. From the documentation produced in the documents it must be deduced that it is certain that she was an Italian citizen and that she is a direct ascendant of all the appellants. Following an investigation consisting of discussions with the appellants’ defence, it must be assumed that the twelve appellants live in Brazil, that they have never stayed on Italian territory, nor has it been alleged that any of them have ever come to Italy even for short visits, nor has it been inferred that any of them know the Italian language, except for one appellant who was able to respond to some emails sent by the defender. In essence, the same, without prejudice to the Italian citizenship of one of their ancestors, have no further connection with Italy. When asked, through the defender, about their future plans, they did not highlight any concrete plans in relation to future stays in Italy.

3. The territorial jurisdiction of the Court seised is undisputed (see Article 4, paragraph 5, of Legislative Decree no. 13 of 17 February 2017, converted, with amendments, by Law no. 46 of 13 April 2017, as amended by Article 1 paragraph 36, enabling law no. 206/2021, according to which «When the plaintiff resides abroad, status assessment disputes of Italian citizenship are assigned having regard to the municipality of birth of the father, mother or ancestor who are Italian citizens”), as well as the monocratic nature of the dispute (see article 3 paragraph 4 of the legislative decree of 17 February 2017, no. 13 cit, according to which «except as provided for in paragraph 4-bis, in derogation of the provisions of article 50-bis, first paragraph, number 3), of the civil procedure code, in the disputes referred to in this article the court judges in a monocratic composition”). The power of attorney for the disputes is regular, just as the notification is regular and timely, so that the defendant’s default was declared.

The action appears legitimately promoted also with regard to minor children despite the lack of authorization from the guardianship judge pursuant to Article 320 of the Civil Code, expected that the act performed in the name and on behalf of the child must be considered ordinary administration since it aims to preserve and/or procure an advantage or avoid a loss to the minor’s assets and does not appear likely to cause harm or decrease his assets (see Court of Cassation Section 2, Sentence no. 743 of 19/01/2012, therefore «in terms of procedural representation of the minor, the authorization of the guardianship judge pursuant to article 320 of the civil code is necessary to promote judgments relating to acts of extraordinary administration, which may cause prejudice or reduction of the assets and not also for the actions aimed at improving and conserving the assets which are already part of the assets of the incapable person”) and since there can be no doubt that the request for recognition of a citizenship (also a declaratory action) falls among the beneficial actions for the minor. It must also be noted that the fact that in this case the appellants did not preliminarily appeal to the Administration, presenting a formal request for recognition of Italian citizenship at the territorially competent Consulate General of Italy, is of no decisive importance, since undoubtedly there is no administrative preliminary ruling concerning the verification of a subjective right or status (on the double track, administrative and jurisdictional, for the recognition of the state of statelessness, see S.U. 9 December 2008 n. 28873, referred to in relation to jure sanguinis citizenship by the Court of Cassation Section U, Sentence no. 4466 of 02/25/2009). One could instead raise the issue of the interest in taking action, which in the present case is nevertheless overcome in practice, as it is well known that at the Italian consulates in Brazil, the waiting lists for the first examination of the citizenship application also exceed 10 years, so that the interest of the appellant parties in taking legal action cannot be denied.

4. It should be noted, again as a preliminary matter, how the scheme relating to the acquisition of citizenship has recently been comprehensively explained by the United Sections of the Court of Cassation, therefore «the result of such a scheme is very simple. Citizenship by birth is acquired on an original basis. The status of citizen, once acquired, has a permanent nature and is imprescriptible. It can be justifiable at any time based on the simple proof of the acquisition case integrated by birth as an Italian citizen. Whence the proof is in the transmission line. Only extinction due to renunciation remains unaffected (see already Cass. Sez. U n. 4466-09). It follows that, where citizenship is claimed by a descendant, nothing else – with unchanged legislation – is up to him to demonstrate except this: to be a descendant of an Italian citizen; while it is incumbent on the counterparty, who has made an exception, to prove the event interrupting the transmission line” (Court of Cassation Section U, Sentence no. 25317 of 24 August 2022; see also 24 August 2022, no. 25318) . As has been said, from the examination of the documents filed in the documents, the uninterrupted descent of the appellants from the Italian citizen indicated above can be seen, so that there can be no doubt as to the occurrence of the conditions, “with unchanged legislation”, of the acquisition of citizenship by the same jure sanguinis. From an examination of the documentation it does not emerge that the various ancestors have ever renounced their Italian citizenship, nor can a tacit renunciation be inferred as a result of the so-called. great naturalization of 1880, which as is known required the Italians of the time, who emigrated to Brazil, to express their dissent to the naturalization decree in order to retain their Italian citizenship, nor can it be assumed that silence retained, together with the residence or stabilization of life abroad, could receive consensus value. In this regard, the SSUU have recently noted that «the right of citizenship belongs to the category of fundamental rights, and the automatic extension of presumptions which, like those dictated by an allegedly conclusive behavior of a purely negative order, is not suited to fundamental rights can assume – under certain legal conditions – normal importance in the distinct sector of property rights”. It follows that «the loss of citizenship can only result from a conscious and voluntary act, expressed in a linear way in order to directly impact a relationship which, like the one below, corresponds to a right of primary constitutional importance and is characterized by lasting effects over time” so that “the loss of Italian citizenship cannot be said to be perfected by some form of acceptance of foreign citizenship, imparted through a generalized provision of naturalization, deduced from simple silence, since, in deference to individual freedom, the loss of Italian citizenship cannot occur except as a result of a voluntary and explicit act”. The Court of Cassation therefore concluded that «the institution of the loss of Italian citizenship, governed by the civil code of 1865 and by law no. 555 of 1912, where understood in relation to the phenomenon of so-called. great naturalization of foreigners present in Brazil at the end of the nineteenth century, implies a restrictive exegesis of the relevant rules, within the framework of the emerging constitutional principles, the citizenship being one of the fundamental rights; in this perspective, article 11, n. 2, cod. civil 1865, in establishing that Italian citizenship is lost by the person who has “obtained citizenship in a foreign country”, implies, due to the effects on the line of transmission of iure sanguinis to descendants, that fulfillment by the person at the time must be ascertained emigrant, of a spontaneous and voluntary act aimed at acquiring foreign citizenship – for example integrated by an application for registration in the electoral lists according to the local law -, without having established the residence, or even having stabilized one’s living conditions abroad, can be considered sufficient, together with the failure to react to the generalized naturalization measure, to integrate the case of extinction of the status through tacit acceptance of the effects of that measure” (Court of Supreme Court Section U, Sentence no. 25317 of 2022 cited). It is equally completely undisputed that the criterion of descent must be applied, for the purposes of citizenship, also in the female line also for events that originate from a period prior to the Constitutional Charter, as long represented by the defense of the appellants in the appeal and long since peacefully recognized by the jurisprudence, so that for the sake of conciseness of this motivation on the point any further indication is omitted (see Constitutional Court, sentences of 16 April 1975 n. 87 and 9 February 1983 n. 30; Sec. 1, Sec. n. 10/07/1996, Sec /2009).
5. Given this, as expressly represented at the hearing of 23 October 2024, it must however be noted ex officio the existence of serious doubts regarding the compatibility of article 1 of law 5 February 1992, n. 91 (New rules on citizenship) in the part in which it provides that «The following is a citizen by birth: a) the son of a citizen father or mother» does not place any limit on the recognition of Italian citizenship by descent, with the parameters deducible from articles 1, according paragraphs 3 and 117 of the Constitution. The relevance of the question for the purposes of the decision in the present trial is evident, given that the 12 appellants are devoid of any connection with Italy, except for the blood relationship with the ascendant valued without limits by the aforementioned article 1 of the law of 5 February 1992, n. 91.

For all the reasons illustrated in detail in the following paragraphs, the question of unconstitutionality of article 1 of law 5 February 1992, n. . 91 therefore does not appear manifestly unfounded in reference to the parameters referred to in articles 1, second paragraph, 3 and 117 of the Constitution, which, as will be seen, presuppose a notion of “citizenship” and a notion of “people” incompatible with the aforementioned provision and having regard to the principles derived from international law and from articles 9 of the Treaty on the European Union and 20 of the Treaty on the Functioning of the European Union.

6. Citizenship is a subjective status which indicates the citizens’ belonging to a state community and entails a series of rights recognized and guaranteed by law. The Constitutional Court has qualified it as a «constitutionally protected legal state which imports a series of rights in the private and public sector and also, in particular, political rights» (Constitutional Court, sentence 9 April 1975 n. 87, § 2, Considered in law) As is known, the acquisition or recognition of the status of citizen traditionally results in various notable legal effects: the so-called status activae civitatis, with obligations of a political nature and military obligations; the duty of loyalty, while the foreigner has a mere duty of obedience; the right of incolato, while foreigners, subject to the necessary respect of the principle of non-refoulement, can be expelled; the application, as a general criterion albeit with exceptions, of national law in personal relationships; the right to diplomatic protection. Aside from the identification of the individual effects or contents of the citizenship status, there is also no doubt that the actual legal nature of citizenship must be identified in its constitutive quality of the personal element of the national community and the State. The Constitutional Court has noted in this regard «the citizen being an essential part of the people or, more precisely, “representing, together with other citizens, a constitutive element of the State”» (Constitutional Court, sentence 10-24 February 1994 n. 62, § 4. Considered in law). Citizenship, in fact, identifies the constitutive element of the people, whose sovereignty the Constitutional Charter recognizes in article 1 (see also articles 71, 101 and 102, third paragraph of the Constitution for which «the people exercise the initiative of the laws”, justice “is administered in the name of the people” and the law regulates the “direct participation of the people in the administration of justice”; the notion of people is also referred to indirectly in articles 11, i “other peoples”, and 75, “popular referendum”). To these are added the articles that recognize rights or duties to “citizens” and which will be discussed in more detail below. Citizenship is the criterion that allows us to distinguish the “people” from other peoples and from the population inhabiting or only present on the national territory. In our constitutional system, the legal basis of citizenship therefore coincides with the personal element of the system and with the participation in determining the will of the State. As is known, the ius sanguinis, or criterion of filiation or descent, traditionally and in the current regulatory framework represents the privileged criterion for the recognition of citizenship. The same has its roots in Roman law, and even before that in Greek tradition, and has come down to us almost unchanged, except for the extension to forms of filiation other than genetic descent and descent in the female line. In this regard it was observed that «the Italian legal system traditionally maintains a conservative approach, without substantial alterations compared to the prevailing criterion for acquiring citizenship by jure sanguinis, practically unchanged since the code. civil of 1865 according to a layout (Court of Cassation, Sentence no. 25317 of 08/24/2022, cit.). The other criteria (ius soli, ius communicatio and for the benefit of the law) overall represent exceptional or in any case minority events compared to the traditional system centered on descent from a parent with Italian citizenship. The principle of descent is not, however, an end in itself, but in the intention of the Legislator it is aimed at ensuring the continuity of the national community, given that, as observed by an authoritative, albeit dating back, doctrine, «the ideal to which inspires our legislator is that all those (and only those) who present the data of language, race, religion, feelings that are proper to the members of the Italian nation have the citizenship of our State”.

6. Before proceeding with the analysis of the regulatory framework, including the constitutional one, some factual premises are needed, given that in the matter in question the doubts about the compatibility of ordinary legislation with the constitutional parameters derive from the knowledge, including statistical knowledge, of the social reality on which this discipline has an impact. Italy is, after China, the second country in the world for the number of emigrants. The prevailing criterion of descent, or iure sanguinis, applies in the Italian case in the aftermath of a migratory movement of exceptional dimensions, which in 120 years has led approximately 30 million people to leave Italy and for at least half of these to never to return, therefore settling permanently abroad. Addressing the parliamentarians of Italian origin gathered for the first time in Montecitorio on 20 November 2000, the then President of the Chamber Luciano Violante recalled that «in a century from 1870 to 1970, 27 million Italians went abroad taking the of emigration. This figure corresponds to the entire Italian population of the last century and approximately half of the current one. Today, 60 million people of Italian origin live outside Italy, therefore more than there are Italians living in Italy.” According to the last official survey found, from the Ministry of Foreign Affairs in 1994, in that year the population abroad descending from at least one Italian ancestor was equal to 58 and a half million, compared to a population on the national territory equal to 56,778. 031 (1991 census, which also covers not just citizens, but all residents). Data relating to the number of applications currently pending at consulates abroad are not known (the Ministry of Foreign Affairs reported approximately 800,000 administrative proceedings in 2007), as well as at municipalities and courts, although it is known that all these offices , administrative and judicial, suffer from a disproportionate number of pending cases (in a recent conference the President of the Court of Venice stated that in 2024 even 73% of all civil cases registered in that court its object is to ascertain jure sanguinis citizenship). What is certain is that tens of millions of people are, according to current provisions, Italian citizens awaiting recognition. It has been said that Italy is, after China, the country in the world whose population has emigrated abroad the most. If we compare, however, the number of emigrants with the number of inhabitants, which in Italy is much lower than China, we see how Italy actually represents from this point of view not only the first country in the world, but a completely original and unique in the global panorama, given that the at least 60 million descendants of Italian emigrants residing abroad even reach and exceed the same population at home. Italy is, on the other hand, one of the few systems in which there is no limit to the recognition of citizenship by descent, or iure sanguinis.

In the framework deduced from the regulation with ordinary law, no limit to descent appears to emerge, nor is there a time limit for requesting recognition of citizenship . The same is recognized without limit to all generations of future descendants, without requiring any further connection with the country. While in other systems mechanisms of progressive desuetude have been adopted, so that the right is limited to the first generations or the applicant is required to have resided in the territory in recent years or for a certain period, the criterion of descent is, in Italy, absolute. Briefly and approximately, as far as we know and subject to further investigation by the Constitutional Court itself, it can be said that in the legal systems of countries with a legal civilization similar to ours, the right to acquire citizenship jure sanguinis is usually permitted only if the parent ‘he had requested and had actually obtained it; in the United Kingdom, minors may be entitled to citizenship by registration if one of their parents, a citizen by descent, has lived in the country for a period before the birth; in Ireland and Portugal the second generation limit applies; among the countries that give prevalence to ius soli: in Canada citizenship by descent is limited to a generation born outside the country; in the United States of America, Section 301(c) of the Nationality Act of 1952 extends automatic nationality at birth to children born abroad to two U.S. citizen parents, provided that one parent has resided for a certain period in the United States United States and Section 301(g) provides that to obtain automatic nationality for a child born abroad to a citizen and an alien, residency in the United States or its possessions is also required; in Israel citizenship by descent is limited to the first generation born abroad, while those born abroad in the second generation and not otherwise eligible under the Law of Return may apply for a grant of citizenship subject to the government’s discretionary approval . Apparently, with the exception of some jurisdictions which allow it, or have allowed it in the past, for specific situations (as in the case of: the German Basic Law which in Article 116, paragraph 2 allows it for former German citizens deprived of their citizenship due to “political, racial or religious reasons” in the period between January 30, 1933 and May 8, 1945; Sephardic Jews exiled in 1492 following the Alhambra Decree and who can show a “special connection” to Spain to apply for dual citizenship; of the Law of Jewish Return which allows descendants of Portuguese Jews expelled during the Inquisition to become Portuguese citizens if they “belong to a Sephardic community of Portuguese origin with ties to Portugal”; of the legislation that provides for the right of return for ethnic Finns arriving from the former Soviet Union), Italy would in fact appear to be one of the very rare cases of recognition of the blood relationship without generational limits (together, as far as is known, with Bulgaria, Armenia, Croatia, Lithuania…). The Italian choice not to set any limits is the consequence of a favor for the descendants of Italian emigrants, which finds its roots in policies of support for Italians abroad which animated the political forces in an era that did not know ease of transport and digital communication of the current era. This choice today leads to new perspectives, given that the, at the time unpredictable, ease of communication thanks to the network now allows such a very wide audience to effectively access suitable means to obtain verification of the status, also in the wake of the repeated and very serious economic crises that have affected many of the countries of origin. The inertia and stalemate of consulates abroad, which are often unable to offer an adequate response, except by giving a first appointment only more than ten to twelve years after the submission of the application (news reports have reported in years of hoarding and reselling of appointments by the so-called coleros and real rackets of brokerage agencies), leads to an explosion of jurisdictional appeals filed directly in Italy by those who are able to face a technical defense in another continent, with evident discrimination on an economic basis. Nor should it be underestimated that the unlimited recognition of iure sanguinis citizenship today takes on a further connotation due to the explosion of the phenomenon of naturalizations of foreign citizens resident in Italy, which is increasing and already in the order of several hundred thousand, given that opens up the prospect of the possibility of acquiring citizenship for their descendants born and residing abroad, without any limit and even in the event that the ascendant has at the same time returned to the country of birth. It results from a well -known empirical study that the great majority of applicants, who present one among all their ancestors even one, far away, emigrated Italian, are not only without any cultural or linguistic contact with the country, but are interested in citizenship in perspective Not of faster contact with Italy but of a transfer to other countries of the European Union (60% of Italians residing in Spain were born on a continent other than Europe; Italians born in Latin America today represent 78 % of citizens Italians residing in the Circumscription of Barcelona) or in the United States of America, where since 1986 Italian citizens have been exempted from the visa (literature reports more stringent checks to the US border for the Italians “born abroad”). The representation of the reality in change, on which the Constitutional Court, where it will consider it appropriate, will be able to assume further information with very other means, in this case it is not mere digression but, as will be seen, helps to give the suspicion of unconstitutionality of the criterion “Pure” and without limits of descendants or filiation. The double assumption – exorbitant extension of the audience of the subjects interested in recognition; lack of limits in the application of the criterion of descent -, combined with the ease of access, thanks to the internet, information and procedures, today poses several problems in relation to two legal areas: compatibility with the constitutional framework as a whole, in particular with the same definition of the notion of “people”, who together with the notions of territory and sovereignty contributes to composing the same notion as “Republic”, and, on the other hand, the delicate question of compatibility with international obligations, both of more lacta than derivatives from adherence to the European Union. Therefore, compatibility of the current regulatory framework derived from article 1, first paragraph letter a) of the law of 5 February 1992, n. 91, for which “is a citizen by birth: a) the son of father or mother citizens”, with the parameters deduced from the overall constitutional framework and, more in particular, from articles 1, second paragraph, 3 and 117 of the Constitution.

8. The wide debate on the notions of citizenship and people is known, given that they traditionally contribute, together with the territorial element and to sovereignty, to the Determination of the same notion of state. On the other hand, the notions of citizenship and, therefore, of people, in turn are determined by the same legal system. They are therefore logically prior elements, they are original elements of the state, yet they are determined by this, given that their content derives from the same legal system and finds their regulation there. The most authoritative doctrine certainly ascribes citizenship to constitutional matter. Thus it is in the western legal tradition, since the French Constitution of 1791 and in numerous constitutions, which contain general principles on the subject, and thus is in our constitutional system, due to the fact that, on the one hand, citizenship plays a fundamental role In the organization of the State and which, on the other hand, numerous provisions of the Constitutional Charter refer to this notion. The Italian Constitution does not contain, however, specific provisions on citizenship, nor does it guarantee a real right to citizenship (Constitutional Court, ordinance 20-27 April 1988 n. 490), simply worrying about providing for article 22 that “none It can be private for political reasons (…) of citizenship (…) ». On the other hand, the constitutional card as well as directly dealing with citizenship in article 22, identifies article 48 in the “citizens”, men and women, of majority the owners of constitutional law in political participation and indicates in several provisions citizenship as an eligibility requirement and for the exercise of public functions or tasks (articles 51, first paragraph; 56, third paragraph; 58 First paragraph, 59 second paragraph, 84, first paragraph; 135 Last paragraph), thus mentioning citizens in numerous further provisions that guarantee constitutional rights, for some of which, as is known, is now known, now consolidated the extension to the human person regardless of the status of citizen (formerly Constitutional Corte Multis , sentences n. 120 of 1962, n. Among all the provisions that refer to the status of citizen, finally very particular importance assumes article 54, so “all citizens have a duty to be faithful to the Republic and to observe their Constitution and the laws”. As can be deduced from the works of the constituent assembly, reasons of convenience and opportunities have not recommended the insertion of an articulated discipline, complex and exposed to frequent social changes. The choice not to include a complete discipline in the constitutional paper on the ways of purchase, loss and re -sections of citizenship is commonly appropriate, due to the necessary flexibility, functional to a continuous adjustment to a social reality in change. This choice appears to be more appropriate in the light of the sudden transformation of our country, during the validity of the Constitution, from one of the countries to stronger emigration, to the country of immigration. The inversion of the management of migratory flows has generated as well as known new questions about the same latitude of the notion of citizenship and people. The choice of the constituent legislator of not regulating but to assume the notions of citizenship and people, therefore, appropriate and happy appears. Instead, it is discussed in doctrine if, in such a fundamental matter, the postponement made by the constituent to the ordinary legislative process is actually convenient, taking on some that the same would not ensure adequate guarantee. This does not mean that the notions of citizenship and people are assumed by the Constitution, perform a fundamental function for the holding of the system Constitutional and find Therefore certainly in the Constitutional Charter a nucleus of principles to which the ordinary legislator must necessarily adapt. The need to adapt the regulatory tissue to the constitutional principles is not only original, but can achieve, in particular in this fundamental matter, by the need to adapt the rules to the changed social context. As was observed, the postponement to ordinary law in fact presents a positive aspect, as it allows continuous control over the compliance of these rules to the evolution of the system and social reality. The flexibility wanted by the constituent therefore announces a constant adaptation of the provisions of ordinary legislation to change the reality of the country and requires constitutionality control even when the legislator has not intervened to adapt the ordinary law to the data that emerge from social and statistical analysis.

8. The provision referred to in article 1, first paragraph letter a) of the law of 5 February 1992, n. 91, for which “is a citizen by birth: a) the son of father or mother citizens”, he ran first with article 1, second paragraph of the Constitution, who provides that “sovereignty belongs to the people”. This incipit of the Constitutional Charter announces, as in a sort of preamble, the foundation of the principle of democracy of the new Republic. As is known, the original character of sovereignty was highlighted, after a large debate in the constituent site, with the underlining that sovereignty not only “emanates” or “derives” from the people, but “belongs to them”, with this highlighting the close coincidence Between people and sovereignty, who are never transferred to others, but, albeit exercised in the forms and within the limits of the Constitution, always remains for the people. As is known, the provision referred to in Article 1 of the Constitution was traditionally subject to careful examination especially in terms of the conditions, guarantees and limits of the exercise of popular sovereignty. This provision, in welding with article 48, first paragraph, constitutes indeed the basis of the democratic principle. This exception draws reason, however, from, less studied, theme of the conditions and limits for the recognition of belonging to the “people”, having to verify whether, in light of the historical conditions determined by the most significant migratory phenomenon with recent history and by the phenomenon of globalization, with the brought of the ease of transport and communications by means of the network, the recognition of citizenship to tens of millions of people without actual connection with Italy can constitute an inadmissible alteration of the same notion of the people on which yes found the constitutional system. Concrete citizenship, first of all, a political law and a fundamental human right to participate, on the basis of the democratic principle, in the government of the society in which we live. Political participation rights are generally considered as the hard core of the category of citizenship. As has been said, the Constitution, while stating that sovereignty “belongs to the people” does not however provide any definition of the same. This fundamental notion is therefore presupposed. In turn, it is clear that citizenship is a fundamental requirement for the definition of the people. The criteria of recognition, loss and re -sections of citizenship evidently contribute to the definition of the people, given that only those who have Italian citizenship is part of the people. In turn, the “people” is the foundation of the state. The sovereignty, in fact, “belongs to the people” and the same constitution is an expression of this original sovereignty. Therefore, the criteria for recognizing citizenship, although not constitutionalized, evidently to allow the mentioned flexibility and openness to change the historical conditions, are certainly essential from the point of view of the Constitution. This does not define the notions of people and citizenship, but presupposes them as fundamental notions, which certainly opens up to the need for constitutionality control with respect to the sources of lower rank that contribute to their definition. In particular, the existence of a state reserve is peaceful, which is inferred not only from the overall constitutional system also from the provisions referred to in article 117, second paragraph letter i) of the Constitution (for which the State has exclusive legislation on the matter of citizenship) and, indirectly, also by article 51, second paragraph of the Constitution. (For which the law can equalize for certain purposes to citizens “Italians who are not belonging to the Republic”, from which it can be deduced that even more so it is the law to determine the criteria discreet among them). The connection between the duty of loyalty (article 54) and the duty of social solidarity (articles 2) as a further constitutional basis of a real reserve strengthened by implicit law, highlighting how the matter of the ways of purchase, loss has been reported in doctrine. and regaining citizenship is necessarily set on the evaluation of compatibility/incompatibility with the duty of loyalty to the Republic. On the other hand, if the Constitution ensures a specific heritage of rights and duties to those who are citizen, the constitutional survey of this last notion appears. It must be believed that the existence of principles and limits of a constitutional nature that mark the area within which the discretion of the ordinary legislator in the matter of citizenship and its reflections must be equally manifested on the same notion of the people. The extension that is given to the personal element independently affects the quality of the same democratic process, both with regard to ordinary legislative processes and with regard to the revision processes of the same Constitution. It is evident that the ways of purchasing citizenship can influence, also determining distortions, the functioning of the institutional mechanisms, ending concretely by compromising the same right of citizens to compete to determine national politics. It would be, for example, in a constitutionally illegitimate evidence, a disposition aimed at excluding the citizenship of those who were born or alive in a certain region of the country. This would cozzare, as well as with the principle of uniqueness and indivisibility of the Republic (understood not only as a territory but also in its personal content), also with the notion of “people” and “citizenship” assumed by the constitutional paper. Likewise, the constitutional illegitimacy of a rule that gives Italian citizenship to those who are devoid of connection with the country, for example to anyone who was born in a specific area of ​​the planet, cannot fail to take on the constitutional illegitimacy. In this case, the principle of indivisibility of the Republic would not come into play, but certainly an inadmissible alteration of the notion of “people” and “citizenship”. The arbitrary recognition of citizenship to anyone born in a distant area of ​​the planet, different from the national territory, in all evidence would seriously compromise the Italian people’s right to exercise sovereignty. It is, therefore, to be excluded that the notion of “people” and that of citizenship are in the establishment of the empty boxes left to the full discretion of the legislator.

The constitutionality control on the provisions on the recognition and loss of citizenship is, indeed, peaceful, as it is aimed at ensuring, first of all, the Same foundation of the constitutional and democratic legitimacy, and participates in a very high degree of resistance to the same constitutional revision process. There was talk, in relation to the provision referred to in article 1, second paragraph, of a “supernarma” or a “synthetic representation of all the principles of democracy”. Furthermore, it does not seem indifferent that the provision reports to the “Italy”, and not to the “Italian state” the notions of the people and sovereignty, to underline a function that is not merely institutional, but open to the same spiritual identity of the nation and the dimension horizontal of the national community. In this regard, the union between citizenship and nationality has been observed, underlining the relief also for the citizenship of the commonality of language, cultural and historical traditions, summarized in the notion of nationality. As has been observed in doctrine, the set of people who reside at a given moment in the territory of the State, or who are in any case subject to its authority, while, from a metagiuridic point of view, with the notion Instead, “people” refer to a set of people who have common characteristics, such as for example. Nationality, culture, uses and customs. From this point of view, the people identify themselves in the group that shares cultural, social and institutional links. The horizontal dimension of citizenship therefore comes into play, as a participation in the life of the community and in the decisions concerning the community, which since Aristotle characterizes the Athenian notion of πολίτης. From it seem to have developed all the theories that, starting from the French Revolution, intended the category of citizenship as a factor of identification and integration, not only social but also political, of individuals in a community. It can be said, ultimately, that citizenship presupposes a definition of people. The same starts from the prior identification of a certain social group, the people precisely, and at the same time contributes to defining their contours and limits. However, the legal rules that govern citizenship are unable to be appreciated except by virtue of positive rules, of a constitutional nature, which define the notions of the people, the national community and the democratic state. This community notion also necessarily leads to the very close link between the people and the territory. As was observed by authoritative doctrine, “of the conditions for which a community of people can constitute a state community, one is considered essential and constant, and it is that the community is permanently fixed on a part of the earth’s surface (territory)” . The Constitutional Court, recalling the different substantial positions of the citizen and the foreigner in relation to the right of residence, recalled the connection of the citizen with the territory, noting in this regard that “the positions of the citizen and the foreigner towards the state substantially diversify, Sol that the citizen has, in the territory of the State, his stable domicile is to be represented, with other citizens, a constitutive element of the state itself “(Constitutional Court sentence 10 July 1974 n. 244, § 2 considered in law). There is therefore to be wondered in what terms and within what limits the ordinary law can allow the recognition of citizenship without any, minimum, connection with the national community, understood as commonality of language, cultural and historical traditions, and with the territory of the Republic .

It does not appear in this regard that the postponement to a mere constraint of descent from an ancestor, among many, even very remotely, constitutes a sufficiently effective criterion, Nor does it appear imposed by article 29 of the Constitution, which, as is well known, refers to a notion of family as a social reality Certainly anchored to actual family ties. The subtle line of descent from an even remote ancestor does not configure a connection anchored to concrete family ties, but appears as a purely formal connection, so that it certainly does not fall within the notion of family as a natural society, which in the largely majority interpretation and made its own by Constitutional Court refers not to a manufacturing notion founded on blood constraints, but to the necessary anchoring to social reality (so that must take into account “the evolution of society and customs”, the Constitutional Court sentence no. 138 of 2010, § 9, considering in law). Nor, given the gracity of the link of descent from an Italian citizen or citizen who emigrated during the 19th century, can be assumed that the recognition of citizenship descends from the provisions referred to in the third paragraph of article 35 of the Constitution, for which the Republic It recognizes the freedom of emigration, except for the obligations established by the law in the general interest, and protects Italian work abroad. The necessary protection of those who work abroad do not imply the recognition of citizenship after generations. If articles 29 and 35 certainly protect the filiation also against those who emigrate, it should be excluded that they impose the recognition of citizenship to those who only present a small connection with the emigrated ascendant. Moreover, the unreasonable asymmetry compared to the other criteria for purchasing citizenship appears, which are all based on the progressive consolidation of the ties with the country, while the criterion of descent this link completely ignores. As is known, article 48 of the Constitution, as amended by constitutional law 17 January 2000, n. 1 (amendment to article 48 of the Constitution concerning the establishment of the foreign district for the exercise of the voting right of Italian citizens residing abroad) has established a foreign district for the election of the chambers, to which seats are assigned in number established by a constitutional rule and according to criteria determined by law. Articles 56 and 57 of the Constitution as modified by the Constitutional Law 23 January 2001, n. 1 (Changes to art. 56 and 57 of the Constitution concerning the number of deputies and senators representing Italians abroad) attribute eight deputies (in the four hundred) and four senators (on two hundred) to the foreign district. With the law of 27 December 2001, n. 459 (rules for the exercise of the voting rights of Italian citizens residing abroad) has been provided for the method of participation of citizens residing abroad in electoral processes, establishing the four territorial distributions in article 6 (relating to: a: a: ) Europe, including the Asian territories of the Russian Federation and Turkey; b) southern America; c) northern and central America; d) Africa, Asia, Oceania and Antarctica) with the forecast that in each of the distributions a deputy and a senator is elected, while the other seats are distributed among the same distributions in proportion to the number of Italian citizens who reside there. Despite the overall limitation of participation in the exercise of popular sovereignty to eight deputies and four senators, therefore, the criterion of proportion to the actual population residing in the district, sanctioned, instead, by the same articles 56, third paragraph and 57, third paragraph For the population residing in Italy, it cannot be doubted of the evident interference of the immense dilation of the number of citizens with the exercise of popular sovereignty, both for the possibility of registration in any case at the internal electoral lists, and for the incidence on the quorum provided for the popular referendum from article 75, fourth paragraph of the Constitution , for which all citizens called to elect the Chamber have the right to vote (so it cannot fail to observe as the very scarce participation in all the referendum of the voters of the district Abroad, a little interest of interest in Italian events, already today reverberates undoubtedly on the exercise of popular sovereignty in this area), both for interference with the operation of the constitutional referendum referred to in Article 138 of the Constitution. In essence, the compatibility with article 1 of the establishment of a discipline on citizenship that leads to a profound alteration of the notion of people is in question, allowing the recognition of the status to tens of millions of people without effective connection with the community national, a population greater than the same number of citizens residing on the national territory, with obvious repercussions not only on the cultural profiles of the people, but on the same exercise of popular sovereignty and, ultimately, on the functioning of democracy. If the application of a “pure” criterion of descent concerned a low number of people, it could probably take compatibility with the republican form, but its concrete application to tens of millions of people, citizens of other countries and without connection with Italy, without prejudice to a remote ancestor, evidently causes such interference with the democratic processes as to configure a real break from the same constitutional picture. With an evident overturning of the NO TAXATION WITHOT RENSENTATION principle, the outcome of the process of recognizing tens of millions of people without an effective connection with the national territory leads to delivering extensive representative and political powers to a population without tax obligations against of the Republic and which in fact does not contribute to public expenses in Italy pursuant to art. 53, first paragraph of the Constitution. Once again, it should be highlighted how the bureaucratic slowness does not detect (it appears that many Italian consulates abroad set the appointment to submit the application at about 10-12 years from the request), given that the legal evaluation must proceed from the observation that these Several tens of millions of people are, according to the current discipline, citizens of the Republic, albeit pending assessment of the status. Under all these profiles, the provision referred to in article 1, first paragraph letter a) of the law of 5 February 1992, n. 91, for which “is a citizen by birth: a) the son of father or mother citizens”, he collides, then, not only with article 1, second paragraph of the Constitution, for which “sovereignty belongs to the people”, but also with article 3 of the Constitution in terms of reasonableness and proportionality.

10. Moving from articles 1 and 3 of the Constitution to the compatibility of the provision with article 117 of the Constitution, for which “the legislative power is exercised by the State (…) in compliance with the Constitution, as well as the constraints deriving from the Community system and the international obligations” and first of all from the examination of the obligations deriving from the international system, the following must be observed.

The regulation of citizenship is a matter of strict competence of sovereign states.

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It is nevertheless peaceful that national laws are anchored from international system to a general principle: that of effectiveness. Especially after the Second World War, therefore in coincidence with the validity of the Constitutional Charter, the initial thesis of non-existence of limits has been the subject of a rethinking, especially due to some well-known decisions of the International Court of Justice. The international system refers to the legal assessments of the internal systems, but only in that they are an expression of a fact of reality, not taking into consideration assessments of internal law that do not rely on a real belonging of the individual to the social group.

In this regard, it has been found as any claim of the state to consider citizens who actually do not have effective social relationships both internationally dismissed for foundation so, consequently, the other states are not required to respect it. The United Sections of the Court of Cassation have recalled that “undisputed in international law, the principle of effectiveness is substantiated in an observation from the specific implications: that is to say that it is up to each state to determine the conditions that a person must satisfy to be considered invested of the His citizenship (see Cass. Section 1 n. 9377-11 cited by the same territorial court, but also, in the university, C. Giust. 19-10-2004, Zhu, Ca-200/02, C. Giust. This with the purely negative limit, represented by the existence of an effective connection between that state and the person in question. It is up to national legislation to establish what this connection is. So that the Effectivity designates the border of the freedom of the states to grant the purchase of citizenship to those who do not present any real point of connection with the set of relationships in which effective (or substantial) citizenship expresses itself. The reason is that the connection of citizenship can never be founded on a fictio. The principle implies, in conclusion, that there is a real bond between the state and the individual on the basis of suitable indices to make citizenship stand out beyond the formal data. ” (Court of Cassation Section U -, sentence no. 25317/2022, cit.).

It can be observed how traditionally the bond is considered “effective” when the person descends from those who belong to the state (ius sanguinis) or was born on the territory of the state (ius soli) or under certain conditions has expressed the desire to join of state society. In the context of these criteria, the States would therefore enjoy, in general, of a wide freedom, in the sense that they are remitted to establish what the data are to be taken into order in order to attribute their citizenship. In the aforementioned ruling, the United Sections note that “certainly the bloodbird constraint is not a fictio”. However, the question arises whether international obligations do not also involve limits in the same area of the descent criterion, taking into account the data of the aforementioned above, for which the discipline here the subject of doubt of unconstitutionality leads to the recognition of Italian citizenship for one very large population without any concrete and current link with the country, residing in other sovereign states, to a large extent without effective knowledge of the same Italian language, which does not contribute to public spending and even equal, if not higher, to the same population with Italian citizenship resident in Italy.

The notion of citizenship seems to have been revised under the famous definition of the International Court of Justice, in the Nightbohm case of 1955. In this decision, indeed, the Court has clearly stated as citizenship has “its basis [on] a social facto of Attachment, in Genuine Connection of Existtence, Interests and sentiments, together with the existence of mutual rights and duties “(International Court of Justice, Nightbohm, page 16

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Judgment of 6 April 1955: concerning the case of a German citizen who had settled in Guatemala since 1905, who after the outbreak of the Second World War had obtained, during a visit to Europe, the citizenship of Liechtenstein, then returning to Guatemala to resume his previous commercial activities, until his removal following war measures in 1943; the Court has established that on the international level the granting of citizenship must be recognized by other States only if it represents a genuine connection between the individual and the State granting it, while in this case the person did not present any genuine connection with Liechtenstein).

For the Court, citizenship, consequently, constitutes «the juridical expression of the fact that the individual upon whom it is conferred, either directly by the law or as a result of an act of the authorities, is in fact more closely connected with the population of the State, than with that of any other State». The Court therefore provided a reinterpretation of the maxim of international law, stating that citizenship must denote not only a legal bond between an individual and a given legal system, but also a genuine and effective union between the two. The limit identified by international law coincides with the basic fact that citizenship must identify an effective relationship between the person and the state society. In doctrine, there is talk of an “effective or real” citizenship, whereby a person’s belonging to a State cannot depend exclusively on the latter’s assessments, having to be based on a real and genuine belonging of the individual to the social group.

The Italian legislation, which provides for the recognition of Italian citizenship for tens of millions of citizens of other countries, resident there, on the basis of the circumstance that one of their many ancestors was Italian, therefore goes beyond these limits of reasonableness.

11. Coming then to the necessary respect of the constraints deriving from the Euro unitary obligations, imposed by Article 117, first paragraph of the Constitution, while it is legitimate for the national legislator to provide autonomous mechanisms for the recognition of citizenship, it may be doubted whether the extension by national law of citizenship to tens of millions of people without any effective, genuine and real connection with the Member State is compatible with the Union legal system.

The Treaty on European Union established citizenship of the Union, attributed, pursuant to Article 9, to “everyone holding the nationality of a Member State”, while Article 20 of the Treaty on the Functioning of the European Union establishes (ex Article 17 of the TEC) that “Citizenship of the Union is hereby established. Every person holding the nationality of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it”. As can be deduced from these provisions, the status of citizen of the Union is the automatic reflection of the acquisition of national citizenship, so that it is essentially left to the member States, given that the determination of the methods of acquisition, loss and reacquisition of citizenship falls within the competence of each Member State. However, it remains to be verified whether the regulation whose legitimacy is here in doubt respects the principle of proportionality from the point of view of Union law.

As is known, thanks to the introduction of European citizenship, all citizens of the Member States enjoy, in addition to the first level of rights connected to their national citizenship, a second level of rights that places them in direct relation with the Community bodies and, consequently, with the institutions of the other States of the Union.

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Citizenship of the European Union entails, in fact, the attribution to citizens of a series of rights and duties clearly outlined in the Treaty in Articles 18-22, such as the freedom of movement and residence within the Union (the right of each European citizen to enter and reside in the territory of any other Member State, as well as the related right to carry out his/her work activity there, without prejudice to the possibility of requesting the reunification of his/her family members of any other nationality), the rights of political participation recognised to all citizens of the Union even if resident in a Member State other than the one of which they are citizens (the right to vote actively and passively in the European Parliament; the right to elect actively and passive for municipal elections in the Member State of residence), the right to obtain diplomatic protection from the diplomatic and consular authorities of any Member State in the territory of a third country in which one’s State of origin is not represented, the right to petition the European Parliament and the right to appeal to the European Ombudsman.

The right to citizenship of the Union has progressively become detached from the freedom of movement between Member States, being treated as a right in itself, autonomous and complementary to national citizenship. This autonomous role played by European citizenship has given rise to a unitary and independent approach by the Luxembourg Court itself, capable of influencing national legislation. The same, for example, has verified the Union compatibility of national rules on citizenship aimed at preserving national unity within the family, taking into account the consequences for the minor in light of Article 24 of the Charter of Fundamental Rights of the European Union, in order to assess his best interests (see ECJ 12/03/2019, Tjebbes, case C221/17).

On the other hand, it is also worth recalling the well-known Micheletti case where the Court established the principle according to which the attribution of citizenship to an individual by a Member State cannot be questioned by another Member State which attempts to limit the effects of such attribution by demanding a further requirement – such as effectiveness – for the recognition of such citizenship for the purpose of exercising a fundamental freedom provided for by the Treaty. According to the Luxembourg judges, therefore, the principle of effectiveness of nationality recognised by general international law cannot constitute a derogation from the absolute and unconditional duty of Member States to recognise their respective citizenships (Court of Justice of the European Union, Judgment of 7 July 1992, Case C-369/90, Micheletti and others v. Delegacion del Gobierno en Cantabria, concerning the case of an Argentine dentist, recognised as an Italian citizen thanks to the Italian origins of his great-grandparents, who, having arrived in Spain to practise his profession there, was refused a residence permit by the Spanish authorities, who considered his Italian citizenship to be fictitious).

This shared conclusion, however, based on the need to prevent the scope ratione personae of European rules from varying from one Member State to another, does not at all exclude that the internal legislation on citizenship must be examined, in this case by the Constitutional Court, taking into account the interference of the conspicuous derogation from the principle of effectiveness and genuineness with the very notion of European citizenship. On the contrary, the very recognition of a limit on the sovereign powers of States to review the exercise of legislation on citizenship in other Member States requires careful evaluation of the implications of an arbitrary recognition of European citizenship to millions of people with no effective and genuine connection with any Member State.

12. For all the reasons set out in detail in the preceding paragraphs and also in light of the statistical data reported above and which, if deemed appropriate by the Constitutional Court, may be further examined by means of an investigative order, the question of the unconstitutionality of Article 1 of Law No. 91 of 5 February 1992 (New provisions on citizenship) is not manifestly unfounded in the part in which it provides that “A citizen by birth is: a) the child of a citizen father or mother” with reference to the parameters set out in Articles 1, second paragraph, 3 and 117 of the Constitution, taking into account for the latter the principles derived from international law and Article 9 of the Treaty on European Union and Article 20 of the Treaty on the Functioning of the European Union.

The relevance of the issue for the purposes of the decision in the present case is evident, given that in this case we are dealing with 12 appellants, all of whom have no connection of any kind with Italy, except for the presence of one Italian ancestor, among many (going back to their great-great-grandmother, the minor appellants have 29 Brazilian or in any case non-Italian ancestors and ancestors and only one, ancient, Italian ancestor), for whom citizenship must be recognized as a result of this tenuous connection. As has been recalled, the appellants have not deduced, either in the appeal or during the hearing, any further connection with Italy, except for the bond of descent from a single ancestor, very ancient in time, among the dozens of their ascendants.

As has been said, the judge expressly requested them to state the existence of any the ties, past, present or future connections with Italy, projects linked to our country, the defense attorney represented at the hearing that all the appellants are permanently resident in Brazil, that he does not know if they have ever stayed, not even for short periods in Italy, that he does not know if any of them has any knowledge of the Italian language, if they have ever had any relationship with the culture of our country, that he does not know if any of the appellants has any real intention of moving to Italy.

In conclusion, the provision of article 1 of law 5 February 1992, n. 91, in the opinion of this judge, presents clear profiles of probable incompatibility with the parameters mentioned above in the part where it does not provide for any limit, while it is possible to provide, for example and without prejudice to the hypothesis of someone who is stateless, generational or temporal limits (it has been suggested in doctrine to take into account the longest period of oblivion provided for in the legal system, equal to 20 years, as for the prescription for the most serious crimes and for the usucaption of real estate and real estate rights) or that the descendant and his parents have resided in the national territory.

As stated by the United Sections of the Court of Cassation, “cases of loss of citizenship resulting from the disappearance of connecting criteria between the person and the State”, “are nowadays theoretically admissible, and perhaps respond to a more complete meaning of citizenship as such, centered on a network of concrete relationships between a person and a community; and it should be remembered that they have been deemed not incompatible with Union law, provided that the limits of proportionality are respected and provided that the risk of statelessness is excluded (see C. giust. 12-3-2019, Tjebbes, case C-221/17)» (Court of Cassation, Section U no. 25317/2022, cit.).

A reasonable point of balance, aimed at ensuring the effectiveness of the link with Italy, can be identified, in the opinion of this judge, in the recognition of citizenship iure sanguinis within the limit of two generations, subject to proof that one of the ascendants or the person concerned has lived in Italy for at least two years.

The proceedings must be suspended.

P.Q.M. [for this reasonings]

Having regard to Articles 134 of the Constitution, 1 Constitutional Law 1/1948 and 23 Law no. 87 of 1953, CONSIDERING the relevance and the non-manifest groundlessness of the question of the constitutional legitimacy of Article 1 of Law no. 91 of 5 February 1992 in reference to Articles 1 and 117 of the Constitution, the latter in relation to international obligations and Articles 9 of the Treaty on European Union and 20 of the Treaty on the Functioning of the European Union, ORDERES the transmission of the documents to the Constitutional Court and the suspension of the proceedings; ORDERS that this order be notified to the parties and to the President of the Council of Ministers and communicated to the Presidents of the Senate of the Republic and the Chamber of Deputies.

Bologna, 26 November 2024 Judge Marco Gattuso