A New Law’s Interpretation Threatens Pending Cases

By Avv. Michele Vitale

The Italian Citizenship Constitutional Court Hearing on June 24, 2025, was far more than a procedural review; it evolved into a high-stakes battle over the very soul of Italian identity and the rights of its global diaspora. What began as a constitutional challenge to Italy’s century-old principle of unlimited jus sanguinis (citizenship by blood) was dramatically reshaped by a bold, and potentially explosive, legal argument from the defense. A lawyer for the applicants advanced a literal interpretation of the new, restrictive citizenship law—Legge 74/2025—contending that its draconian measures could apply retroactively to all pending court cases, regardless of when they were filed. This stunning assertion shifted the entire focus of the hearing, raising the possibility that thousands of individuals who initiated their citizenship journey in good faith under the old law could see their rights extinguished overnight. This deep-dive analysis unpacks the competing arguments, reveals the strategic maneuvers, and explores the implications for anyone with a pending or future claim to Italian citizenship.

Phase 1: The “Accusation” – Deconstructing the Challenge to Unlimited Jus Sanguinis

The proceedings commenced with the Reporting Judge, Emanuela Navarretta, who expertly outlined the core arguments of the four lower court judges who had referred the cases. Her synthesis framed the “accusation” against Italy’s historically generous citizenship-by-descent law, presenting a multi-faceted challenge to its constitutional legitimacy.

Violation of Article 1 of the Constitution: The Erosion of Popular Sovereignty

The central pillar of the challenge rests on the argument that unlimited jus sanguinis fundamentally erodes the concept of “the people” (il popolo), the foundation of Italian popular sovereignty. The referring judges argued that granting citizenship to individuals across unlimited generations, many of whom lack any tangible or lived connection to Italy, transforms the citizenry into what they termed “empty boxes” (scatole vuote). This, they contended, dilutes the democratic body politic. The argument was twofold:

• Lack of an “Effective Link”: The absence of any requirement for a demonstrable connection—be it linguistic, cultural, or residential—was presented as a critical flaw. Citizenship, in this view, becomes a hollow right, detached from the community that participates in the nation’s civic life.
• The “Quantitative” Threat: The sheer number of potential applicants, stemming from Italy’s great waves of emigration, was framed as a threat to democratic stability. The judges raised concerns about the impact on the electorate, particularly in referendums and the election of overseas representatives, suggesting that a large, disconnected body of citizens could interfere with the exercise of sovereignty by the resident population.

Violation of Article 3: The Principle of Reasonableness and Equal Treatment

The challenge further argued that the law creates irrational and unjustifiable disparities in treatment when compared to other pathways to citizenship:

• Disparity with Reacquisition of Citizenship: The process for descendants of those who formally lost their Italian citizenship (under Article 4 of Law 91/92) is distinct from the automatic, unlimited transmission of jus sanguinis. This difference, the judges argued, lacks a rational basis.
• Disparity with Citizenship by Marriage: The most pointed comparison was with the requirements for spouses. A foreign spouse seeking to become Italian must prove a connection to the country, most notably through a language proficiency test. The fact that a descendant, potentially many generations removed and with no knowledge of Italy, can claim citizenship automatically was portrayed as a profound and indefensible inconsistency. This echoes the reasoning in the recent European Court of Justice ruling against Malta’s citizenship-by-investment program.

Violation of Article 117: Conflict with International and European Law

Finally, the argument invoked Italy’s obligations under international and EU law. The landmark Nottebohm case at the International Court of Justice was cited to support the principle that a “genuine link” should underpin any grant of nationality. Moreover, the judges suggested that automatically bestowing EU citizenship upon individuals with no connection to any member state could undermine the integrity of the Union itself, as it confers the right to live, work, and vote across all 27 member states.

Phase 2: The Defense – A Passionate and Multi-Layered Counter-Offensive

The legal team for the applicants responded with a powerful and impassioned defense, weaving together procedural strategy, historical context, and philosophical principles to not only defend the existing law but also to launch a scathing critique of the new legislative reality. Notably, the State’s legal counsel (Avvocatura dello Stato) was absent, a telling decision that suggested the government was unwilling to defend the very law it had just replaced.

The First Defense Lawyer: Shifting the Battlefield to the New Law

The first defense lawyer immediately seized the initiative with a brilliant and audacious legal gambit. His central thesis was that the entire constitutional question had been fundamentally reshaped by the passage of Legge 74/2025. He argued that the new law, with its severe restrictions, had effectively “completed” the legal question before the Court, making a discussion of the old law almost academic. He characterized the new legislation as poorly drafted but powerfully retroactive.

Herein lies the bombshell: he presented a literalist interpretation of the new law’s exception clause. The law states that its new restrictions do not apply where citizenship has been “judicially ascertained” (accertato giudizialmente) following a request filed before March 27, 2025. The lawyer argued that “ascertained” means a final, definitive judgment has been issued. This implies that the thousands of cases currently pending in Italy’s backlogged court system, though filed before the deadline, have not yet been “ascertained” and would therefore be subject to the new, draconian rules. This radical interpretation was a calculated risk, designed to compel the Court to rule on the constitutionality of the new law itself, which he proceeded to attack as “constitutional rot” (un marciume incostituzionale) and a mere “administrative provision” designed to strip rights from a specific class of people in violation of vested rights and legitimate expectations.

He argued that citizenship by descent is not granted by a judge but exists from birth; the court merely declares a pre-existing fact. Therefore, a law that attempts to retroactively impose conditions on this status based on the timing of a court filing is inherently flawed. He concluded by directly asking the Court to either self-refer the new law for constitutional review or to remand the cases with instructions for the lower courts to do so, effectively shifting the entire focus of the hearing. He framed the issue not as a legal technicality, but as a moral imperative, stating powerfully, “We are here to save the state from its own administrative inefficiency” – he concluded.

The Second Defense Lawyer: A Defense of History and Legitimate Trust

The second lawyer anchored his defense in the principle of “legitimate expectation” (legittimo affidamento) and the unbroken historical promise of the Italian state to its diaspora. He powerfully invoked President Mattarella’s recent statements celebrating the Italian diaspora as an “essential page of national identity,” directly refuting the judges’ “lack of connection” theory. He meticulously cited legal precedents, including the landmark 1983 Constitutional Court decision extending citizenship rights through the maternal line and a 2022 Court of Cassation ruling that affirmed citizenship by descent is a permanent, inalienable right acquired at birth. He argued that for over a century, Italy had consistently upheld the principle of jus sanguinis, creating a legitimate expectation among generations of descendants that this right would be honored. To retroactively dismantle it, he argued, would be a profound betrayal of that trust and a violation of a core constitutional principle.

He also dismantled the argument that overseas citizens are a drain on the state, clarifying that they do not have automatic access to Italian welfare, healthcare, or pensions without residing in Italy and contributing to the system. Finally, he pointed out the internal contradiction of the new law, which imposes a generational limit that clashes directly with the Italian Civil Code’s recognition of kinship ties up to the sixth degree, exposing the legislation as not just a policy shift but a poorly conceived legal anomaly.

Professor Corapi: A Philosophical and Cultural Rebuke

Professor Corapi elevated the debate to a philosophical plane, offering a moving defense of what jus sanguinis truly represents. He described it not as a legal loophole but as a “family tradition” and a “karstic river”—a deep, cultural current that flows from one generation to the next, even if it sometimes runs unseen beneath the surface. Using the classical allegory of Aeneas fleeing Troy, who carried his father on his shoulders and the Penates (household gods) in his hands, Corapi argued that the transmission of identity is a sacred, foundational act. He masterfully distinguished between the “recognition” (riconoscimento) of a pre-existing status and “naturalization” (naturalizzazione), the granting of a new one. The Nottebohm case, he insisted, deals with the latter and is therefore irrelevant to jus sanguinis, which is about acknowledging a right that exists from the moment of birth. He framed the referring judges’ argument as a logical fallacy—an “hysteron proteron”—accusing them of putting the cart before the horse by challenging the fundamental principle itself, rather than discussing its reasonable application.

He further argued that the administrative delays and bureaucratic obstructionism faced by applicants are the real problem, not the principle of jus sanguinis itself. The immense backlog in consulates and courts is a result of state inefficiency, not an inherent flaw in the law. To punish descendants for these systemic failures, he implied, is a profound injustice.

The Fourth Defense Lawyer: Deconstructing the Myth of a Homogeneous “People”

The final defense lawyer provided a sharp, academic critique of the very premise of the referring judges’ argument. He introduced comparative German legal concepts to deconstruct the idea of a singular, organic community. He distinguished between **Staatsangehörigkeit** (a passive state of “belonging to the State”) and **Staatsbürgerschaft** (an active, participatory citizenship). He argued that the referring judges were relying on an outdated, romanticized, and ultimately fictitious notion of a homogeneous cultural and territorial “people.” This idea, he contended, is incompatible with a modern, pluralistic constitution. A state, he argued, does not “own” its citizens. Rather, individuals form the basis of the state. He asserted that the attempts to impose a monolithic cultural identity as a prerequisite for citizenship are a form of prejudice, not a valid legal category. By attacking the theoretical underpinnings of the judges’ arguments, he aimed to show that their entire case was built on a fragile, philosophically unsound foundation.

The Fifth Defense Lawyer: The Voice of the Diaspora

The final defense lawyer provided a personal and powerful testimony, speaking not just as a lawyer but as a descendant herself. She painted a vivid picture of the “farraginous bureaucratic reality” that has plagued applicants for decades, describing it as a system designed to obstruct and deter. She spoke of non-existent appointment systems, chronic delays, arbitrary requirements, and the recent, punitive increase in application fees, all of which constitute a form of “ostruzionismo” (obstructionism) by the administration. She argued that the state itself, through its inefficiency and at times hostility, created the very problem it now seeks to solve by stripping rights. Her argument recentered the debate on the human element, on the lived experience of a diaspora that has proudly preserved its Italian identity against all odds. “We are like you before the wars,” she recalled a psychiatrist telling her, a poignant definition of a *genuine link* forged in shared history and values, not just geography. She concluded that the issue is a duty of recognition towards those who, through emigration and sacrifice, have kept the values of Italianness alive.

Phase 3: Points of Conflict and The Big Questions

The hearing laid bare a fundamental ideological clash, reducing the complex legal arguments to a few core points of conflict:

• The Concept of “The People”: Is the Italian nation a static entity defined by geography and current political participation, or is it a dynamic, global diaspora connected by the threads of blood, history, and culture?
• The Definition of “Link”: Does citizenship require a demonstrable, “effective link” of language and residency, or is the ancestral “family link,” preserved through generations, a sufficient and legitimate basis?
• The Power of the State: Can the legislature retroactively redefine and extinguish vested citizenship rights, or is it bound by inviolable constitutional principles like non-retroactivity and legitimate expectation?

The new citizenship law, Legge 74/2025, emerged as the undeniable center of gravity in the courtroom. The defense turned it from a looming threat into their most potent weapon, arguing that its patent unconstitutionality demanded the Court’s immediate attention. The crucial exchange between the presiding judge and the first defense lawyer revealed the depth of the legal uncertainty. By asking for clarification on how the new law would apply to pending cases, she signaled awareness of the explosive potential of a retroactive application. The lawyer’s firm, literalist response—that the right is established at birth, not by a court filing—was a direct challenge to the Court to address this uncertainty head-on. Legal experts observing the hearing noted that while it is unlikely the Court will “auto-vest” and rule directly on the new law in this proceeding, the defense’s strategy successfully forced the issue into the room, making it impossible to ignore.

The lack of further questions from the judges was seen by some as a neutral element, as the most technical aspects of a decision are often handled behind the scenes based on written submissions. However, the singular focus on this point of retroactivity was telling.

An Unwritten Verdict, A Future in the Balance

The Italian Citizenship Constitutional Court Hearing of June 24, 2025, concluded without a final verdict, leaving the future of jus sanguinis hanging in the balance. The Court is now faced with a complex, multi-layered decision. Will it confine its ruling to the constitutionality of the old, unlimited system? Or will it accept the defense’s invitation to “self-invest” and deliver a judgment on the new, restrictive law and its explosive retroactivity clause? The decision, expected in the coming weeks or months, will do more than resolve a legal dispute. It will define Italy’s relationship with its millions-strong diaspora and send an unequivocal message about whether the nation views its global descendants as an integral part of its identity or as a problem to be legislated away. The world is watching.

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Complete Transcript of the Public Hearing (English Translation)

Below is the full, literal translation of the public hearing held on June 24, 2025, before the Italian Constitutional Court. The speakers have been identified to provide a clear record of the proceedings.

President of the Court:

The court enters. Good morning, lawyers, and we call the case at number one on the docket, or rather, the cases. Ordinances 247 of 2024, 65, 66, and 86 of 2025. Number 4 ordinances of various dates and various authorities. For Da Silva Almeida Arnaldo and others, lawyers Franco Antonazzo, Antonio Achille Cattaneo, Marco Mellone. For De Andrade, Cristiano, Bernardino and others, for Ashard Navarro Juan Andres and others, for Alves José Eduardo and others, lawyer Marco Mellone. For De Fatima Alves Garcia Elisa and others, lawyers Giovanni Bonato, Giovanni Caridi, Diego Corapi, Patrizio Ivo D’Andrea, Monica Lis Restanio, Maristella Urbini. For AUCI, United Lawyers for Italian Citizenship, and for AGIS, Association of Jurists Iure Sanguinis, intervening parties *ad opponendum*, lawyers Diego Corapi, Patrizio Ivo D’Andrea. For Circolo Trentino of São Paulo, Brazil, and for Circolo Domus Sardinia, intervening parties *ad opponendum* declared inadmissible by ordinance number 85 of June 20, 2025. Lawyer Alberto Lima. For the report, Judge Navarretta. Please.

Reporting Judge, Emanuela Navarretta:

Thank you, Mr. President. The specialized sections of the courts of Bologna, Rome, Milan, and Florence have raised questions of constitutional legitimacy of Article 1, paragraph 1, letter a, of Law No. 91 of 1992, according to which a child of a citizen father or mother is a citizen by birth. Only the ordinance of the court of Milan has also challenged Article 4 of the Civil Code of 1865 as well as Article 1 of Law 55 of 1912, which similarly regulate the transmission of citizenship *jure sanguinis*.

The four main judgments concern the requests for ascertainment of Italian citizenship *jure sanguinis* of persons who were born, are resident citizens of Uruguay in the Milanese case, and of Brazil in the other cases, and who claim Italian citizen ancestors born or deceased after 1861, who transmitted Italian citizenship without interruption to their descendants. The referring judges doubt, with reference to Articles 1, second paragraph, 3, and 117 of the aforementioned norms, in the part where they recognize Italian citizenship to descendants born abroad of Italian citizens without any limit. In particular, to heal the flaw, the Bologna ordinance proposes as a reasonable point of balance, the limit of two generations, unless there is proof that one of the ascendants or the interested person has lived in Italy for at least 2 years, or alternatively, it evokes the hypothesis of taking into account the longest term of oblivion provided by the legal system, equal to 20 years. The Rome ordinance, instead, proposes that the acquisition of citizenship by birth be allowed automatically where the applicant can directly prove the Italian citizenship of the parent, while if it is necessary to trace back to the citizenship of a second-degree ascendant, their situation should be equated to that of Article 4, paragraph 1, which regulates the case of a descendant of someone who has lost Italian citizenship. Finally, the ordinance of Milan seems to want to heal the flaw with a *tertium comparationis* constituted by the discipline provided for the spouse of an Italian citizen.

In all four judgments, the relevance of the questions is motivated by stating that the applicants seeking the declarative pronouncement of citizenship would have no other bond with the Italian legal system than that of *jus sanguinis*. In the case of the Milan ordinance, the feasibility of an interpretation that adapts to the Constitution is also expressly excluded. Coming now to the motivations on the non-manifest unfoundedness. All four referring judges raise doubts of constitutional legitimacy, first and foremost with reference to Article 1 of the Constitution, second paragraph, also in relation to the principle of reasonableness and proportionality of Article 3. I will summarize them because the arguments of the Bologna and Florence ordinances are almost overlapping, substantially coinciding with those of the Rome ordinance and with the very succinct ones of the Milan ordinance. Citizenship, according to the referring judges, identifies the constitutive element of the people to whom the Constitution, in Article 1, recognizes sovereignty. From the Constitution, one would therefore infer, on the one hand, a reserve of state law in identifying the criteria for attributing citizenship and, on the other hand, a nucleus of principles to which the legislator must necessarily adhere. These are verbatim words. The notion of ‘people’ and that of ‘citizenship’ are not, as the courts of Bologna and Florence particularly observe, empty boxes, so Italian citizenship could not be recognized for people lacking a connection with the country. Therefore, the necessary union between citizenship and nationality is emphasized, as a commonality of language, cultural and historical traditions, as well as the very close link between the people and the territory. On these grounds, the referring judges believe that the mere descent *jure sanguinis* from an ancestor, even a remote one, cannot justify the automatic attribution of citizenship. Nor would it be sufficient to invoke, as the Courts of Bologna and Florence point out, Article 29, that is, the family as an instrument for the propagation of a linguistic and cultural commonality, or Article 35, which would merely recognize the freedom of emigration that protects Italian labor abroad.

According to the Court of Rome, the perpetuation of this rule would value a purely subjectivistic and individualistic perspective of citizenship, neglecting the public dimension of *status civitatis* and the effectiveness of the bond between the individual and the State. Overall, all the referring judges, while recognizing that based on Articles 48, 56, 57 of the Constitution as amended by Constitutional Law 1 of 2000, they would have a limited political representation, that referred to the overseas constituency, only eight deputies and four senators, nevertheless identify an interference with the exercise of popular sovereignty, both for the possibility of registration on internal electoral lists and for the impact on the quorum for the validity of referendums. The violation of Article 1 would be particularly linked to the quantitative dimension of the phenomenon, given the high number of citizens abroad who derive from the significant migratory phenomenon that occurred, especially between 1870 and 1970, and this would reveal, in addition to unreasonableness, also the conflict of the discipline with the principle of proportionality of Article 3.

Furthermore, the courts of Milan and Rome complain of a violation of Article 3 also under the profile of unreasonable disparity of treatment. The Court of Rome denounces the disparity of treatment, in particular, evoking various norms, but particularly with Article 4, paragraph 1 of Law 91 of ’92, concerning the descendant of an Italian citizen who has lost citizenship. The referring judge believes that no substantial difference would be discernible between those who descend from parents or grandparents or ancestors of even a remote degree and those who descend from a parent or grandparent who was an Italian citizen and lost citizenship. The Court of Milan, instead, considers the different treatment reserved for those who acquire citizenship *jure sanguinis* compared to those who obtain it by reason of marriage to be unreasonable, where proof of a certain level of knowledge of the Italian language or an integration agreement is required.

Continuing, the other two courts, Bologna and Florence, also identify a conflict with Article 117, first paragraph, for violation of the obligations deriving from the international order. In particular, the Nottebohm judgment of 1955 of the International Court of Justice is invoked to evoke the need for an effective connection between the person and the state, so that it is not a mere *fictio*. Finally, all the referring judges, except for the Court of Rome, note a violation, again of Article 117, first paragraph, with reference to the constraints deriving from the European Union, in particular in relation to Article 9 of the Treaty on European Union and Article 20 of the Treaty on the Functioning of the European Union, as well as in relation to the principle of proportionality. Here too, the need for effectiveness and genuineness of the bond is evoked.

Turning now to the parties, nine applicants in the main proceeding pending before the Court of Bologna, the 12 applicants in the main proceeding pending before the Court of Milan, and the three applicants in the main proceeding pending before the Court of Rome have entered an appearance on February 10, May 5, and May 6, 2025, respectively. The latter also filed a supplementary brief out of time on June 17, 2025. Furthermore, on May 16, 2025, five applicants in the main proceeding pending before the Court of Florence entered an appearance, parties who also filed a supplementary brief on June 3, 2025. On May 20, 2025, another seven applicants in the same main proceeding pending before the Court of Florence entered an appearance.

All parties have raised objections of inadmissibility or, in the alternative, the unfoundedness of the questions. I will limit myself to just a few points, as the lawyers who can elaborate on the more significant profiles of their defenses are present here. In particular, some procedural exceptions are recurring. Among these, present in all defenses, is the one concerning the manipulative character of the requested intervention, which would restrict with arbitrarily identified limits the criterion dictated by the legislator, just as the circumstance is consistently contested that the lack of ties with the Italian legal system, beyond the blood tie, would have been asserted by the referring judge but not proven. On the merits, and then there are others that I will not mention, the unfoundedness relies on various arguments, among which, here too I will limit myself to evoking the common reference to the relevance that Articles 35, 48, third paragraph, 56, and 57 would give to Italian citizens abroad, and to the fact that these norms would regulate political representation in order not to alter the democratic principle. The role played by families in the transmission of language, culture, and tradition of our country, and the circumstance that those who request the ascertainment of citizenship always have Italian parents, given the declarative nature of the ascertainment and the uninterrupted character of the line of descent.

Finally, the defense of the applicant parties before the court has focused on the legislation that has intervened *medio tempore* with the approval of Decree-Law 36 of 2025, as converted. In particular, the supplementary brief of June 3, 2025, underscores how, after the entry into force of the said decree-law, the eventual acceptance of the questions would entail a retroactive and generalized loss of citizenship, which should instead be subject to constitutional constraints and dictated by Union law. Meanwhile, the appearance brief of the other applicants, that of May 20, 2025, argues that the new legislation, by introducing retroactive limits to the acquisition of citizenship, would violate various constitutional principles, and for this reason, this court is asked to self-refer, to refer to itself the question of constitutionality or to promote a preliminary ruling before the Court of Justice. With acts filed on February 11, 2025, the association Avvocati Uniti per la Cittadinanza Italiana and the association Giuristi Iure Sanguinis have requested to intervene *ad opponendum*, arguing on the admissibility of their interventions, and on June 3, they filed supplementary briefs of identical content, insisting on the arguments of the intervention acts. On May 20, 2025, the Circolo Trentino of São Paulo, Brazil, and the Circolo Domus Sardinia have entered an *ad opponendum* intervention, filing summary briefs on May 27, 2025. These interventions have already been declared inadmissible by this court with ordinance 85 of ’25. Lastly, on February 11, 2025, the Association USEF Brasil, Unione Siciliana Emigrati e Famiglie, has filed an opinion as *amicus curiae*, admitted by presidential decree of May 20, 2025, in which the thesis of unfoundedness and, excuse me, of inadmissibility and in any case of the unfoundedness of the questions was supported. This is what is in the records.

President of the Court:

On the admissibility of the intervention. Do the interveners wish to speak, or not?

Unidentified Lawyer 1:

No, Mr. President, we are present in the courtroom out of respect for the college, but we do not intend to defend the admissibility of the intervention with an oral argument. Thank you.

President of the Court:

Very well. I imagine the State Attorney’s Office as well, so it will be decided by the Court. And so, let us move to the discussion, not without remembering that there are time limits provided by the procedural rules which I ask you to respect. And so, there are numerous parties that have entered an appearance. The first lawyer to speak is Avvocato Mellone. Avvocato Mellone, you have the floor.

First Defense Lawyer:

Good morning. Good morning. Thank you, Mr. President. Good morning to all the most illustrious members of this Most Excellent Court. Today, I represent almost all the applicants distributed across the four merits judgments. Therefore, my position allows me to summarize, in some way, the cross-cutting grounds that are present in the four referral orders. Obviously, I will not want to repeat things that are already written in the documents. I will, however, at this moment, try to simplify the applicable regulatory framework, which I believe may seem complex at first glance because, as the most illustrious reporting councilor said, “Subsequently to the four referral orders of the acts, there was also a very important legislative intervention.” Now, the four referral orders, the judges say substantially the same thing. The *jus sanguinis*, the right of transmission of Italian citizenship by right of blood, is unreasonable, it is unconstitutional in the part where it does not provide for further conditions with respect to the two main conditions which are descent, that is, the filiation from an Italian citizen. These have been the two conditions that have been applied until now in 160 years of the history of Italy and for which all of us are Italian citizens, including you, Mr. President, all the judges of this court, the undersigned, and I believe all the people present in this courtroom. Subsequently, the legislator has, in some way, listened to these concerns of the referring judges, these doubts, and has intervened. It intervened in March, then with the government, then confirmed by Parliament in May, and said, “Very well, effectively this *jus sanguinis* for me, the legislator, is unreasonable. To those two conditions, we add further conditions.” So it is not enough that you were born, that you were born from an Italian citizen, it is also necessary that you were born in Italy or that you have a parent or a grandparent who has exclusively Italian blood. This is what the legislator substantially said no later than a month ago. And it said it with retroactive application, that is, it applies to everyone. Meaning, for whoever was born from 1865 to 2025, is Italian according to the current law, by the current will of Parliament, only if these further conditions are also met. So, what has the legislator done in some way? It has completed that constitutional question that had been raised, presented by the judges, which, let’s be clear, was clearly inadmissible because the referring judges were asking you to substantially make the law. That is, they were asking, “Constitutional Court, you make the further conditions, those further limits to fix this norm that is unconstitutional.” Only that they knew, and we all know, that the Constitutional Court does not make laws, it cannot make them. But, precisely, the legislator intervened, which, through its intervention, completed this question, completed the *quaestio*, in the Latin etymological sense of the term, that is, the argument, the theme, the object of the discussion. Today, the question substantially sounds like this: Is the Italian *jus sanguinis* unreasonable in the part where it did not provide, now for then, for the fact of also having been born in Italy, the fact of having a parent, a grandparent with exclusively Italian blood, or not? This is the question, let’s say, updated following the intervention of the legislator. And so, paradoxically, thanks to the legislator’s intervention, that question that was blatantly inadmissible has become admissible and allows this most excellent court to rule with a single, comprehensive reasoning on the entire discipline of *jus sanguinis*. And note, the new law must be read carefully because it is not well written. Unfortunately, as often happens in Italy, the laws are not well written, with all due respect, of course, to the Parliament. But the new law is clear, it does not repeal the provision, Mr. President, object of the constitutional censure, that Article 1 of Law 92, or rather the norm behind it, because that is the provision. That norm has remained intact, so much so that the new law does not touch that norm, it does not speak of descent from an Italian citizen, no? It repeals it, it says “in derogation,” so it modifies it. And it says, “I don’t care when you were born, I don’t care where you were born, if you don’t have these further conditions, for me, you are not an Italian citizen.” So, besides being instrumental to the judgment *a quo*, *a quibus*, and for this constitutional judgment, it is also relevant in the merits judgments, because all, substantially, the applicants of the four merits judgments do not have, obviously, do not satisfy the conditions provided by the new, by the new norm, and therefore, in fact, they could not be considered Italian citizens in light of the *jus superveniens*. That is, the referring judges cannot, could not, not take this *jus superveniens* into consideration. And note, that exception provided by Law 74/2025, that is, by this new, new law, for which the new laws, the new regulations, the new conditions are not applicable to cases in which the status of an Italian citizen is judicially ascertained, is an exception that is clearly not applicable to the case at hand, for two reasons. One, literally, the status of an Italian citizen today in the merits judgments is not ascertained, it has not been judicially ascertained. There are four pending processes that could end with a result of ascertainment, of non-ascertainment, they could end with an inadmissibility, an extinction, we don’t know. The process is an aleatory event, it is a temporary, occasional event. Nothing to do with the substantive norm. The substantive norm today is one and it applies to everyone, everyone, all of us. And it is the one provided by Law 74/2025. Note, I am talking about abstract application, that is, of reference, of a source of reference. But you teach me that between abstract application and concrete application, there is the constitutional review. And if I go to verify that norm from a constitutional point of view, I open a Pandora’s box in which I find an unconstitutional rot rarely seen in the history of the Italian Republic. First of all, it is not a law, it is an administrative provision. A law is *erga omnes*. That law wants to strike, it is very clear from the preamble, the past effects, already produced, by the previous legislation, that is, it wants to strike all the descendants of today of the Italians who migrated at the time. And the law applies to the future. You don’t make a law only for the past. A law for a category of people is called an administrative provision. Furthermore, it is a law that touches upon vested rights, people already considered citizens at birth, the principle of retroactivity is unreasonable. What does it mean to be born in Italy? And so if one is an Italian citizen, birth on the territory is such an occasional, extemporaneous event, it does not, does not translate into any kind of effective connection also invoked by the judges. It is reasonable also under the profile of European Union law because the Court of Justice has told us clearly. You want to touch the citizenship of people already recognized at birth as citizens, fine, you cannot treat everything with a broad brush. You have to look at the situation of each person and you have to justify to me why you no longer consider them a citizen of your country. So what we are asking, Mr. President, we have also done so in the briefs that the most illustrious relator mentioned earlier, is to broaden the perimeter of evaluation and constitutional review also to this *superveniens*. And this not only for the technical reasons that I have just explained, but also for more comprehensive and more general reasons, Mr. President. That is, we are facing a systemic norm of our legal system, a central, fundamental norm. With all due respect, we are not talking about the right of use of condominium stairs, we are talking about the *status civitatis* of more than 90% of Italian citizens, including all of us. So you can imagine the legal metastasis inoculated by the legislator with this new regulation and with the doubts of constitutionality raised by the judges. So we need a guarantee, a constitutional guarantee, a democratic guarantee. The citizen votes and is voted for. I mean, can you imagine revoking the right to vote for millions of people, what impact that can have on the democratic life of people? It is an enormous impact. So we ask this most excellent court to refer the case to itself regarding this *superveniens* in such a way as to also generate a contradictory debate, evidently, on this supervening normative element, or, in the alternative, to refer the question to the referring judge after indicating the very evident doubts of constitutionality of this new law, and therefore in general of the matter being treated. And this, Mr. President, also in general for another reason that I would like to very briefly explain on this occasion. The world of Italian citizenship *jus sanguinis* in the last year, more or less, has been the subject of a somehow transversal movement aimed at disavowing what has been the history of Italy and the history of this legislation. Before last year, Mr. President, nobody in Italy talked about *jus sanguinis*, or am I wrong? It was not in the legal chronicles or in public opinion, almost nobody talked about it. In the last year, referral orders from judges who, by the way, until the day before had always recognized citizenship in all judicial claims without problems. The legislator had never intervened. Everything has happened in the last year. Why? It is not a coincidence. I thank you again for the public hearing because this allows me, I repeat, to represent these issues also publicly. I know that there are many people who will be listening to us later in the recording of this hearing. We are here, Mr. President, to save the State from its administrative inefficiency. This is the reason why we are here today, because if there are many people, Mr. President, who have turned to justice to ask for the recognition of something that was provided for by law since always and that the legislator deliberately, over the course of history, wanted citizens to be considered the emigrants, descendants of Italian citizens, it is not a problem of a citizen nor a problem of the unconstitutional norm. It is a question that should have been the subject of an administrative management a very long time ago or of a possible legislative intervention, but it has nothing to do with unconstitutional norms. *Jus sanguinis* has always been constitutional, Mr. President. I mean, it’s enough to read the parliamentary acts of the code of ’65, of the law of ’12, of the constituent assembly of ’46-’47. But I ask the referring judges in a, let’s say, rhetorical way, but in your opinion, in Article 1, when the constituent assembly talks about ‘people’, but to which people could it be referring? Mr. President, I mean, the Italian people were not born in ’46 or ’47, the Italian people were born in 1861 and in that people, there was already an Italy inside the Italian territory and an Italy outside the Italian territory. We are a diasporic people since always, it’s just that we don’t want, in some way, we want to tear this page of Italy’s history from our memory. Already from the end of the 1800s, the beginning of the 1900s, there were millions and millions and millions of Italian citizens by law who lived outside the Italian territory. These ordinances are not constitutionally unfounded, they are historically unfounded. And we ask this court, in this sense, to also carry out a sort of cultural operation of which there is a need in this country. President Mattarella said it no later than a week ago. The history of Italian immigration is an essential page of national identity. Words of the President of the Republic. 7 days ago on an occasion of a meeting with the General Council of Italians Abroad. So I conclude, Mr. President, to these citizens of ours, descendants of Italian emigrants who in recent months have seen entire pieces of the Italian State against them, administration, politics, pieces also of the judiciary, as well as of the media and scientific academic circuit. Two institutions of the Republic of the Italian Republic have remained for them. One is called the President of the Republic, whom I have just quoted, and who, I repeat, no later than a few days ago also said, “Look, this new law just approved should be reconsidered.” And the second institution is called the Most Excellent Constitutional Court, in which this defense and all nurture a profound trust. I thank you.

President of the Court:

For the same parties, Avvocato Cattaneo, taking into account the defense already made by Avvocato Mellone. Please.

Second Defense Lawyer:

Thank you, Mr. President. Good morning to all. I will refer only to the referral order of the Court of Bologna. I would start by citing the speech of President Mattarella during the meeting with the General Council of Italians Abroad on last June 17, where words were spoken that I believe are also relevant for the purpose of the present decision. I quote, “President Mattarella stated, ‘From the great migrations following the unification of Italy to the numerous departures in the second post-war period, generations of Italians have found better destinies outside of our country, decisively supporting its recovery and development, also with the substantial financial remittances of the last century. The theme of the decree-law containing the recent reform on citizenship has aroused attention and debate in the community of Italians, a sense of bewilderment,’ the Secretary-General defined it a little while ago. ‘It will certainly be useful and to be followed with attention,’ he added, ‘the reflection that will open on the theme of your council in this session to favor a considered consideration and eventually reconsideration of the themes that have opened up.'” Well. Therefore, if this most excellent Court were not to deem it appropriate to refer to itself the question of constitutional legitimacy of Law 74 of May 23, 2025, converting with amendments Decree-Law 36 of March 28, 2025, precisely in consideration of the substantial retroactive effect attributed to this legislation, it is considered necessary or at least appropriate that in the issuing provision, this Court may formulate legal remarks of conformity with the constitutional principles of the aforementioned legislation, necessary or at least useful to allow, for reasons of protection of the judicial system, of procedural economy, especially to allow the judicial authority before which thousands of proceedings are currently pending, including those initiated post-reform, to carry out a constitutionally oriented interpretation of the aforementioned legislation, which is not found, by the way, in the ordinance of the Court of Bologna, and thus avoid that similar and numerous exceptions of constitutional illegitimacy are raised regarding these remarks.

In the first place, it will be appropriate to clarify with respect to what is contained in the referral order of constitutional legitimacy *de qua*, that the choice of the Italian legislator has always been to maintain close ties with citizens forced to emigrate, recognizing their possibility of maintaining Italian citizenship and of transmitting it also to subsequent generations born in the country of migration. In this sense, not only the adoption of the *jus sanguinis* as the main criterion for the attribution of Italian citizenship should be read, but also and above all the absence of any limit or condition to the attribution or maintenance of citizenship *jure sanguinis* deriving from the residence or birth abroad of both the emigrant and their descendants. Indeed, neither the Civil Code of 1865 nor Law 555 of 1912 provided for any kind of provision in this sense, and when the Constitution came into force, this legislation had already contributed to forming an Italian people, an Italian community inside and outside Italy.

It should also be noted that the Constitution has established the rights and duties of a citizen towards the State, but it has not established who is or who is not a citizen, and it has not established who deserves or who does not deserve to be a citizen, which is then the underlying idea contained in the referral order of the Court of Bologna. In 160 years of life of this legislation, there has never been a jurisdictional body that has raised a constitutional doubt of any kind, not even incidentally, on this legislation. This court has already noted how this most excellent court, on the occasion of judgment number 30 of 1983, scrutinized the very legitimacy of Article 1, number 1 of Law 555 of 1912, in the part where it did not provide that the child of a citizen mother was also a citizen by birth. On that occasion, this most excellent Court had declared the invoked provision unconstitutional precisely because it did not allow the transmissibility of citizenship also *a matre*. Consequently, the same norm invoked in the judgment *a quo*, that is, *jus sanguinis a matre*, was in fact coined by this most excellent Court with a sentence of an additive type, and today it would be a contradiction in terms to think that a norm that derives from an additive sentence of this Court is itself unconstitutional since judgment number 276 of 1974.

Furthermore, this most excellent court has valued for the purposes of constitutional scrutiny the approach of the jurisprudence and in particular that of legitimacy on the question object of the referral of constitutionality, going so far as to identify a specific hypothesis of inadmissibility of the request for referral should it be in open and direct contrast with numerous pronouncements of the Court of Cassation distributed over a long period. The same Court of Cassation has been called dozens of times to rule on questions relating to the application of *jus sanguinis* in the Italian legal system and in cases analogous to the one at hand, in which descent from an Italian ancestor born in the pre-unification era was claimed. On these occasions, the Supreme Court has not only never questioned in the slightest the constitutionality of the principle of *jus sanguinis*, but has clarified that it is intimately linked to Italian history and to the specific, constant, and centenary choice of the Italian legislator to maintain through the blood tie the relationship between Italy and its children wherever they were born and lived.

Lastly, it is useful to recall the principle of law sanctioned by the United Sections of the Court of Cassation in judgment 25,317 of 2022, which provides that citizenship by birth is acquired by original title *jure sanguinis*, and the status of citizen, once acquired, is permanent in nature, is imprescriptible, and is justiciable at any time based on the simple proof of the acquisitive fact pattern integrated by birth from an Italian citizen. Now, this very principle of law today is in blatant contrast with the generational limit introduced by the new legislation and the related substantial retroactive effect. Precisely on this matter, it should be noted that the Constitutional Court, in multiple and authoritative pronouncements, has identified in Article 3 the existence of a right to legitimate expectation. This principle is particularly violated by norms that modify in a less favorable sense for the interested parties the discipline of legal relationships if it determines an irrational regulation of the interests at stake. As established by the Constitutional Court in judgment 216 of 2015, the law that intervenes *in peius* on previously defined regulatory frameworks must strictly apply the principles of reasonableness and proportionality and in particular carry out a careful balancing between the public interest and that of the private interested parties. In this situation, the protection of the value of legitimate expectation, which finds constitutional coverage in Article 3, requires the legislator not to create an irrational regulation of interests susceptible of frustrating the trust of citizens in legal certainty, which is instead the fundamental element of the rule of law.

It is therefore possible to observe the substantial retroactivity of the new legislation, as it is applicable to subjects born under the force of the previous discipline, which entails a series of serious and unreasonable discriminations in defiance of the spirit of Article 3, between those who activated the process provided for by the previous legislation by the date of March 27, 2025, and those who did not. In this regard, it should be clarified that this is not a negligence attributable to the interested parties, as the transmission of the Italian *status civitatis jure sanguinis* is a legal institute in force since the unification of Italy, on which entire generations of Italians have been able to rely.

A further issue on which the intervention of this court is requested, at least to provide elements of clarification, is related to the connection between the pool of descendants born and resident abroad and the Italian community. In particular, in the referral order to the referring judge, the referring judge maintains that the applicants have no tie with the Italian people apart from an ancestor born many years ago in Italy, being born and resident abroad. The thesis of the referring judge rests on a specific element of fact, namely that the applicants would have no connection with Italy, with the exception of the Italian ancestor. This approach betrays the false and unfortunately widespread conviction that the descendants of Italian emigrants represent subjects who have no link with Italy and therefore do not deserve to be considered members of the Italian community, despite what the law establishes. This conviction is the result of a lack of knowledge of the reality of Italian communities abroad, which is instead an enormous resource for the Italian State. It was President Mattarella himself, in the aforementioned meeting with the CGE, who noted, and I quote: “The history of Italian migration is an essential part of our national identity. From the great migrations following the unification of Italy to the numerous departures in the second post-war period, generations of Italians have found better destinies outside our country. Their contribution, from a broader perspective, has also translated into giving life to precious ties between Italy and the host countries, ties fueled by respect and admiration for what they have been able to achieve. Furthermore, their contribution contributes to spreading the multiple expressions of the culture of our country.” In other words, the Italian State is not only aware that there is an enormous community of Italian descendants of emigrants outside the national territory, but it wants to maintain and strengthen this relationship through specific investments. I recall a recent project activated by the Ministry of Foreign Affairs called “Tourism of the Roots,” with which people are encouraged to come to Italy to rediscover their origins with a journey to discover, precisely, to find again the places and customs and culture of their ancestors.

Therefore, effective citizenship is not something that depends on mere birth or residence in the national territory. It would be extremely simplistic and reductive to dismiss the question in these terms, as the ordinance would like to do, but above all, it would risk excluding from the national community a vast pool of subjects due to erroneous and misleading readings. In summary, the principle to be highlighted is that one can be an Italian citizen even from abroad, and that the feeling of belonging to a community and of sharing its relative values is not exclusively deducible from the presence on the territory and should not be deducible from the presence on the territory.

A further profile to reflect on concerns the impact that an Italian descendant can have on the Italian economy. The referral order maintains that we would be in the presence of a subversion of the principle “no taxation without representation,” whereby these descendants, despite not contributing to public spending in Italy, would enjoy the political and social benefits deriving from the status of citizens. This is an absolutely unfounded statement. In reality, the great part of the social state, for example, health care, social assistance, social security, is reserved for those who, regardless of nationality, are resident in Italy or carry out a work activity in Italy. It is also good to clarify, also for the purposes of Article 53 of the Constitution, that a citizen resident abroad does not have access to the national health system nor to assistance benefits in case of impediment to carrying out work activities, and not even to the Italian social security system in the absence of contributions. The citizen resident abroad, despite being deprived of the majority of fiscal obligations, does not weigh on the Italian state because, by not contributing, they do not receive. There is therefore no disproportion with respect to Article 53 of the Constitution, also because this system applies to any Italian citizen resident abroad, whether they emigrated recently, were born abroad, or are a descendant of an Italian emigrant born a hundred years ago.

A further question is that relating to the real impact that an Italian citizen resident abroad has on the democratic process of law formation. The referral order raises the fear of a sort of political hegemony on the part of the descendants of Italian emigrants by virtue of their potentially enormous number. At stake would be, quote, “the functioning of democracy,” as well as even a rupture of the same constitutional framework. According to the referring judge, the arbitrary recognition of citizenship to anyone born in a distant area of the planet other than the national territory would, in all evidence, seriously compromise the right of the Italian people to exercise sovereignty. These are very strong statements that must be contested because they are blatantly unfounded. As also noted in Articles 56 and 57 of the Constitution, they define the number of parliamentarians that Italian citizens resident abroad can elect. It is a matter of eight deputies and four senators who can be elected in the foreign constituency out of 600 members of Parliament. It is good to clarify that this is a fixed number of parliamentarians that does not depend on the extension of the population of Italian citizens abroad or on other factors, but is due to the objective lesser impact that political decisions have on the lives of citizens resident abroad. We are talking about 2% of Parliament.

Regarding the data on the Italian community abroad, the referring judge hints in the referral order at a migratory danger in Italy and in Europe from the countries of origin of the *oriundi*, in particular from South American countries, taking advantage of the Italian passport. On the contrary, and as always noted by President Mattarella at the CGE meeting, I quote the words of President Mattarella: “Today, in the global multilateral context, the so-called new mobility has acquired more and more space, composed of energy in motion of every social belonging, of professional categories of every kind, among which, naturally, many young people. Among them are counted about half a million graduates who in the last 15 years have left Italy for destinations such as the United Kingdom, Germany, Switzerland, France, Spain, the United States to invest in their future, bringing with them talent, passion, and a lot of determination, contributing once again to the development of the countries that host them.” The current mass of Italian citizens residing abroad is about 6 million people, it is formed for 50% by citizens who were born in Italy, who then expatriated, and not by the so-called *oriundi* of the third or fourth generation. More precisely, in the last 10 years, over 100,000 citizens a year, almost all very young, have emigrated for the well-known economic and work-related reasons. In total, about a million citizens net of returns. These citizens maintain a bond of effective solidarity with the Italian State, yet they and their families, according to the reasoning of the referring judge and of Law 74/2025, are destined to no longer transmit Italian citizenship. The approach that links citizenship to a necessary physical presence within the State therefore represents a reason for deprivation of Italian citizenship.

A final remark, if I may, is related to the generational limit. The legislative proposal formulated in the referral order of recognition of the court of… referral order of the court of Bologna, okay? provided that, as a legislative proposal, a limit of two generations be introduced, save for proof that one of the ascendants or the interested person lived in Italy for at least 2 years. Now, this objective proposal has been fully accepted and inserted into Decree-Law 36/2025, as converted by Law 74/2025. But here a remark must be made. Pursuant to Article 74 of the civil code, kinship is the bond between persons who descend from the same stock, both in the case where the filiation occurred within the marriage, and in the case where it occurred outside of it, and in the case where the child is adoptive. The Italian civil code recognizes the production of legally relevant effects to kinship up to the sixth degree, Article 77 of the civil code, also providing for the possible devolution of inheritance to relatives beyond, within the sixth degree. Article 572 of the civil code. The generational limitation introduced with substantial retroactive effect by Law 74/2025 is therefore in contrast with the state provisions of the civil code, determining a situation of contrast, of illegitimate normative conflict. For all these reasons, it is requested that now, if the Court were not to deem it appropriate to refer to itself the question of constitutional legitimacy of Law 74 of 2025, it should in any case formulate legal remarks of conformity with the constitutional principles of the content of the party’s legislation for reasons of protection of the judicial system and to allow a constitutionally oriented interpretation of the said legislation. Thank you.

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President of the Court:

For other parties equally constituted in judgment. First of all, Avvocato Corapi or Corapi. Please.

Third Defense Lawyer:

Yes, good morning, Mr. President. Thank you. Most illustrious, most illustrious president, illustrious members of the Court. I do not want to repeat here what we have already written at length, but some clarification I believe is necessary precisely for this, also for what we have heard now from the relator and from colleagues, some clarification on the very foundation of the question we are addressing. I recall, I must state in premise, that much of the work, our work as defenders, has been supported, helped by the associations we represent and who are here present also to attest to their interest, the association Auci and the association Agis. What are these fundamental points? First of all, *jus sanguinis*. Here, it is about *jus sanguinis* as if it were a criterion, among the many criteria for establishing, all things considered, how one can naturalize someone who wishes to become Italian or to whom the quality of being Italian can be recognized, even if not born of an Italian parent and not residing in the Italian territory. Is this the question? The *jus sanguinis*, I recall the Cassation United Sections, is not a fiction. It is, like much of legal language, perhaps all of it, a metaphor. Alright? We are not going to measure with a measuring cup how much blood comes from the grandfather or great-grandfather, Italian, and how much other blood comes instead from the other grandfather, perhaps of a different nationality. *Jus sanguinis* represents, as Latin expressions often give us, indeed always, so castically, a reality. It is the reality of the family tradition and this exists, regardless of the legal, legislative, normative recognition that a legal system may attribute to it. Whoever is Italian, feels Italian, is Italian. The legal system wants to recognize it because it recognizes the value of the family, it recognizes the value of this tradition, and in this, I must say, it follows what is history, tradition. Aeneas, fleeing from Troy, carries his father on his shoulders, carries his little son, and the father tells him, “Remember to take the Penates, the statuette of the Penates.” It represented the physical symbol of those spirits of the family that every family, every group jealously preserved together, together with the Lares who were instead the spirits of the place, of the house. You see, let’s say also the Latin, *jus sanguinis*, *jus soli*. These are the principles of citizenship today in the modern world, sanctioned by the Napoleonic Civil Code as far as *jus sanguinis* is concerned. These are the principles that are in themselves the bond. When I hear and we see and we ascertain that one seeks in some way to introduce temperaments, modifications, we must be careful because there is no need to introduce temperaments to re-establish a bond. The bond is already there. Of course, in the flow of generations, the bond may appear less evident. But it is like, if you will allow me, a karstic river. It is there, it is underground, it comes out, it goes down again, depending on the circumstances, the opportunities. But isn’t this also true enough for us Italian citizens who live in Italy? Do we feel Italian every day, do we participate every day in this reality of a people that is constituted by those who participate in families? This is the situation, and it is no coincidence that this happens precisely with our emigrants, because our emigrants, when they went to these distant countries, tried to integrate with these countries. So the first generations are those who most held within themselves their family origin, trying instead to learn the language, the customs of the country where they were hosted. But it is no coincidence that now that the situation has stabilized, and I must say by virtue of this work, by virtue of these generations that have struggled and lived in distant countries, now that it has stabilized, it resurfaces. This is the tourism we were talking about, that is, these people who feel connected within themselves. So the affective bond, the bond that is being sought by introducing temperaments, some external element that can manifest it. And in reality it is present in *re*. This I believe is the foundation. If this solution is chosen, it is in itself a solution to give relevance to a bond that is a bond of family, of tradition. This is a first point that I believe is a bit obliterated by all that is being discussed, and I do not want to repeat here what my colleagues have already said. It has been said, this is perhaps the most delicate point of the appeal, although I must say of the referring judges, if I must say, it perhaps plays against those who tried to support it. It has been said, “But at the international level, one must be careful because one cannot, every, every country that has its own sovereignty in matters of citizenship cannot, let’s say, in the international community then not take into account the relevance that its choices may have on other countries.” And the Nottebohm case is cited. But the case of the man from Nottebohm is not a case of recognition of citizenship, it is a case of naturalization. This confusion between recognition of a right and naturalization, modalities, regulations, so that those who do not essentially have this right can somehow obtain it, is an essential dividing line. If one, if one forgets this, one creates a great confusion, great confusion. In the Nottebohm case, I do not want to repeat it here, but in substance a citizen of German origin who was a citizen of a Central American country, to escape this, let’s say, destiny to which the German citizenship condemned him during the war, asks for and obtains the citizenship of Liechtenstein. In what way? By paying a sum of money. Well, of course, this by other states has been contested, but it has also been said, “Attention, you, no, the State has legitimately carried out its activity as a legislator in this matter, so we cannot contradict what is the choice of Liechtenstein.” However, it obviously encounters the limits of any national choice with respect to international relations, so it cannot in turn ask that its choice be recognized by all countries, because it is precisely of international law this system in the matter of any norm that a State imposes. Perhaps more delicate may appear the problem of the community, of the European Union legislation, for which we also have here, for which there are constraints in the relations of the States. It is a, it is obviously a supranational legal order, it is not an international legal order. The states have self-limited themselves within certain, within certain boundaries and certain limits, not on the sovereignty in matters of citizenship. This is the other important point, but on the sovereignty in matters of citizenship, they must respect what is the choice that has been implemented by the other states. It becomes a reciprocal obligation with respect to the purely international situation. This is the Micheletto judgment and the other judgments that have followed. But still, just recently, a few months ago, there is another ruling by the Union, of the judges of the European Union, which is the Malta case, and the Malta case is another truly emblematic situation in which, in fact, we are not dealing here with the recognition of a fundamental right of citizenship. It is a matter of a naturalization, and this has been censured within the European Union, in light of the principles of the European Union, precisely by virtue of the fact that even in matters of naturalization and especially in matters of naturalization, the states are no longer free. And think of the whole problem of immigrants who were not as fortunate as that gentleman who went to Malta and was able to buy citizenship by paying a sum of money. Think of the immigrants who land here on our coasts. Here too we have a problem of naturalization, but do we want to compare it to the problem of citizenship? They are two different things, all problematic, and that of citizenship seems to me, in fact, a problem based on a principle so strong that to hear that there are problems dictated above all, as has been evoked, and here let’s face the reality, by the inability of the Italian State to deal with what is a wealth of Italy. This is the problem. The, the difficulty of an administrative nature, of a nature precisely of organization. Is this what should push us to make all these constructions on what is a fundamental principle? And also to evoke, as has been done in the ordinances of those who referred the problem to this court, to evoke also the possibility and eventuality of temperaments and even to see that these temperaments, in a way, frankly, rather distorted and, frankly, also very serious with respect to a clear setting of the problem, are accepted by a hasty legislator, legislator, by a government, because then it is a decree this that has been, let’s not talk about how these so-called decrees that take advantage of the urgency, then also take advantage of the difficulties of the Parliament in their conversion. Do we want to do this, do we want to think about this? I believe that here there has truly been in this suggestion, what shall we call it, on the part of the referring judge, what? A sort of, one can glimpse the opposite of what they say, that is, it is what in the formula of classical rhetoric is a *hysteron proteron*, that is, here one puts first what must be examined later, and that is what now will have to be examined. And here I do not repeat the passionate plea of my colleague, and that is, it is not that we have to discuss the *jus sanguinis* and its limits to see if with limits the *jus sanguinis* is constitutional. Here the position should be the opposite. We have to see if limits to this fundamental principle are compatible with the principle. That is, one must examine not the principle and then put limits on it so that the principle works. Here one must examine what are the limits that are eventually compatible with this principle, that is, the complete opposite. And this today is not here before this court. The colleague hopes that this can happen even today immediately, and certainly I join in this hope. I understand that it is not easy, but I also understand, and I believe this is shared here by all, that if it is not easy today here, it will certainly happen sooner or later, because a law like the one we have witnessed and I am not here to repeat everything that has been so effectively said, it truly cries out for vengeance in itself, for many aspects, but also the most minor ones, if minor in the context of the law, there is an inversion of the order of proof that cries out for vengeance, that is, there is a diabolical proof, it is the applicant for this ascertainment of representation who must prove the absence of obstacles to their request, that is, they must give the negative proof that no one has ever interfered with what they are asking, but I mean, these are things, let’s leave aside the retroactivity and so on. I repeat, this is perhaps not the moment to go into detail, I don’t know, I hope so, but it is certainly the moment to say that the law as it is, the one that has been in force with its alternations, but always in the firm principle, the one that has recognized the *jus sanguinis* in the clearest, most elementary, simplest sense of recognition of descent, is this that is defended here. And this that, in my opinion, is worth defending also from the attacks so improvident that come from the referring judges. Thank you.

President of the Court:

For the same parties, Avvocato Bonato, who will take into account the defense just made by his colleague.

Fourth Defense Lawyer:

Yes, good morning, Mr. President. Most excellent court. I would first like to make a premise at the level of general theory, and I believe that in this regard it may be useful to take up the distinction made by Cesare Massimo Bianca between substantial ownership and formal ownership of the status of child and apply it, therefore, to the status of citizen. In matters of citizenship, the substantial ownership of the status belongs from birth to all those who are descendants of an Italian parent and always attributes the same rights and the same duties, regardless of the place of birth in Italy or abroad, at least until March 28, 2025. What can vary, instead, is the formal ownership of this status, that is, the formally, publicly held position of the state in question. And in light of this premise, it seems to me that the position of the Italian citizen, not yet formally recognized, is entirely analogous to that of the child born out of wedlock and not voluntarily recognized by their own parent, a child who was called, before 2012, a natural child. In fact, both the child born out of wedlock and the citizen not yet recognized possess their status even before the ascertainment, and it is precisely and solely because of the lack of formal ownership of the citizenship of today’s applicants that we find ourselves today discussing these cases. That said, it also seems to me that the questions raised are totally unfounded in the merits, as already amply illustrated in the defense briefs produced, but what I want to emphasize concerns the inadmissibility of the questions raised as they are aimed at obtaining from this court an additive sentence with which new and retroactive limits to transmission would be added, which some ordinances identify as two generations. On closer inspection, in order to declare the inadmissibility of the questions raised, it would already be sufficient to apply the prohibition of interfering in discretionary choices of the legislator, Article 28. It is clear, in fact, that it is up to the Parliament, in its discretion and autonomy, to introduce new limits, new requirements for citizenship, without prejudice, however, to respect for constitutional principles, including in particular that of non-retroactivity, equality, reasonableness, and proportionality. However, considering the normal retroactivity of acceptance judgments, an additive pronouncement of generational limits to transmission would cause an illegitimate and automatic loss of citizenship for an indeterminate category of people. In other words, a collective deprivation, a real mass denationalization, would occur. A perverse, unjust, and illegitimate legal effect would thus be produced, an effect of a manipulative nature that lacks not only the required rhymes, but also the adequate rhymes, an effect certainly detrimental to the principle of legitimate expectation and the principle of equality, and also in full contrast with Article 22 of our Constitution, which prohibits the deprivation of citizenship for political reasons, as, by the way, provided for in other European constitutions, including the Spanish one at Article 11. And moreover, this deprivation of citizenship would be contrary to the unanimous orientation of this court and of the jurisprudence of legitimacy, according to which the discipline of the loss of citizenship does not admit any automatism, being able to derive only from a conscious, voluntary act. But not only, a clear incompatibility with European law would also occur. The Court of Justice, in a last judgment of September 2023, told us that Member States cannot introduce facts of automatic and surprising loss, without granting the interested parties a reasonable term to manifest themselves for the purpose of maintaining their own status. Therefore, as a consequence of a possible additive pronouncement of generational limits, those who possess the substantial ownership of the citizenship would be degraded to unrecognizable citizens, almost as if they were incestuous children before the reform of 2012, who were precisely unrecognizable. That said, I would like to conclude with a synthetic reference to Decree No. 36 of ’25, converted into law No. 74 of ’25, for the sole purpose of demonstrating that this recent regulatory intervention cannot certainly constitute a sort of proof of the foundation of the censures elaborated by the referring judges. The most critical aspect of the decree concerns its retroactive scope, in the part where it provides that it is considered not to have ever acquired Italian citizenship whoever was born abroad even before its entry into force of this article and is in possession of another citizenship. Some specific situations are in any case safeguarded, already recognized subjects, those who have requested recognition by administrative or jurisdictional means before March 28, 2025, and those who have an ascendant of the first or second degree in possession of only Italian citizenship. We find in the decree, therefore, the echo of the limit of the two generations evoked by some referring judges. And in this direction, we note that the decree creates a substantially equivalent effect to that at which the referral orders aim, differing from them only at a temporal level, the watershed being March 28, 2025. In fact, despite the decree using a lexical formula that is apparently neutral and innocuous, and although the government report speaks of retroactive preclusion to acquisition, we must bitterly note that we are in the presence of an ambiguous lexical formula behind which a very serious embarrassment of the ordinary legislator is hidden, who tries to mask with words the retroactivity of the mechanism. Behind this linguistic stratagem lies an unjust and perverse phenomenon of generalized deprivation of citizenship that goes to strike, without their knowledge, an entire category of people. It is no coincidence that the jurist Enrico Grosso spoke of a real linguistic scam. For this reason, the solution desired by Decree No. 36 raises very serious doubts of constitutional legitimacy, as supported by illustrious scholars. And the President of the Republic himself, it seems to me, has recently expressed some perplexity about the new discipline of citizenship with reference to those born abroad. Certainly, our constitutional system does not admit that an act of general scope, be it a converted decree-law or an additive sentence of this court, has the effect of retroactively depriving of citizenship an entire category of subjects already born and who are in any case already Italian. In conclusion, I would like to make one last comparison between filiation and citizenship. The jurist, the French civilian Gerard Cornu, and the Italian civilian Cesare Massimo Bianca said that children can have all the faults in the world except that of being born. In the same way, Italian descendants can have all the faults we want to attribute to them, except that of the choice of the place of birth in Italy or abroad, this being an absolutely accidental and involuntary fact. We cannot therefore penalize the descendants by depriving them of their citizenship only because they were born abroad, especially when for over 200 years the criterion of *jus sanguinis* has been absolutely prevalent, which is based solely on descent, considering the place of birth completely irrelevant. The master, Professor Corapi, cited the French example, and it is in fact precisely Article 10 of the Napoleonic Civil Code of 1804 that in its original version provided, “is French the child of a citizen even if born abroad,” French legislation of the early 1800s that inspired all Italian legislation from the pre-unification legislation, passing through the code of 1865, the law of 1912, and the current law of 1992. I conclude therefore for the inadmissibility of the questions raised in the present judgment or in any case for their manifest unfoundedness. Thank you, Mr. President. Thank you, Court.

Fifth Defense Lawyer:

Thank you, Mr. President. Most excellent Court. It is not just a question relating to citizenship, it is a matter of the memory and the very history of Italy. I would like to describe the practical side of the *genuine link* and of the legislation on citizenship applied, in force until last March 27th. Arguments that are the core of the referral order and a prelude to the new law on citizenship. I occupy a particular position because, besides being the defender of a family born with dual citizenship *jus soli* and *jus sanguinis*, I am also a descendant, a bipolide *jus soli* and *jus sanguinis*, as well as being a member of Italian communities abroad and also president of Auci, Association of United Lawyers for Italian Citizenship, which, together with Agis, has contributed to the study of the theme that occupies us today.

The citizenship of the bipolide *jus soli* and *jus sanguinis* implies two inseparable aspects: the link with Italy transmitted in and by the family, as well as the right to preserve Italian citizenship, except for voluntary acts of renunciation. The generational gap between the ancestor and the applicants that the referring judge complains about is not to be attributed to the disinterest of the families, but rather to decades of obstructionism on the part of the administration, which has systematically postponed the start of the recognition procedures of the *status civitatis* for those born abroad, overwhelming two or three generations. Even the accumulation of requests that the referring judge complains about represents years of manipulation of the law on citizenship by officials of the administration of medium and high level who have limited the number of recognitions, de facto disapplying the current legislation on citizenship *ratione temporis*. This immutable *deep state* has behaved as if the ascertainment of the *status civitatis* of the Italian born abroad were a discretionary concession and not a binding act and therefore due by the State.

Until last March, at least in theory, the laws on citizenship were perfect, so perfect that in order to avoid their application by the judges, access to justice for the descendants was economically barred. Practically the only way left. In January, the unified contribution was passed and increased from 518 to 3000 euros for a family of five people, making appeal and recourse to Cassation de facto inaccessible. The convoluted bureaucratic reality that wears down the Italians born abroad for over four decades exceeds all imagination. Non-existent booking systems for the simple filing of applications, chronic delays, arbitrary requirements, in short, a system destined to prevent requests for recognition. Today, for example, many consulates refuse to issue the fiscal code necessary to be able to pay the justice tax, excuse me, the registration tax for the sentences, and after having dealt a mortal blow to the right of defense in court, the DL36 has transformed into law these restrictive and illegitimate practices, disintegrating an original, unavailable, and imprescriptible right in force for over 150 years.

Through a media campaign of disconcerting incorrectness, it was chosen to spectacularize, excuse me, abuses and isolated crimes committed by some operators in the sector that have an incidence of less than 1% of the number of those entitled, humiliating, deriding, and defaming the Italian born abroad, the only one absent in this debate constructed at a table, thus delegitimizing their legal and subjective position. And even if the diaspora and its infinite richness do not have in Italy the place they deserve, abroad the Italian communities are fully aware of their value. With their feet firmly planted on foreign soil, the Italians born abroad are proud to embody deeply Italian values: family, work, faith, solidarity, a cult for the beautiful, respect for women, for childhood. And yet, for those born and raised in Italy, we are strangers. We perceive it before the municipalities, before the consulates, sometimes before the courts. I would say that it is precisely institutional Italy that has forgotten the bond that unites us.

One day, a psychiatrist visiting my homeland told me: “You are like us before the wars,” and it seemed to me a beautiful definition of our *genuine link*, which should never represent a danger, a threat, but rather a richness for Italy. Today, thousands of young people, under the force of Law 91 of ’92, born with this law, ask Italy, the cradle of law, for protection for their own identity and for their own roots, which are also the identity and roots of those who have remained here. It is a question of an existential, historical, transgenerational nature that goes beyond the very concept of the word justice. It is a duty of recognition towards those who, by emigrating, with sacrifice and dedication, have preciously guarded the values of Italianness, passing them down as an indelible legacy to their own family and their loved ones. Thank you.

President of the Court:

Lastly, Avvocato D’Andrea. I also extend the same prayer to you.

Sixth Defence Lawyer:

Yes, thank you, Mr. President. I will be, I will try to be very brief. And in the discussions that have taken place before me, we have tried to frame even better the theme of the effective bond, as it has been posed in international law. And we have then, following, let’s say, the perspective indicated by the referring judges, tried to give a context to the phenomenon of which we are here today debating, also recalling, perhaps it may have made someone smile, this project of the PNRR on the tourism of the roots, but the first report on the effects of this project is online and it is also a nice document to go and read to see, precisely, what mechanisms of identity research have developed on the basis of this context.

Let’s now come to say something more still on the merits. I will try to take a perspective perhaps different from those who preceded me and I will treasure, abusing, pillaging with full hands, two contributions of doctrine to which I often return as a sort of vaccine recall. Here, for a person who knows he always needs to place himself before the great contributions. One is a lesson that Michelangelo Bovero gave at the history doctorate of the University of San Marino in 2019, and then the other is a contribution by Peter Eberle which was translated by Enrico Grosso and Jorg Luther, it was published in the *Rivista di Diritto Costituzionale*, if I’m not mistaken, in 1997.

Here, the reference to the experience of Germany because the need for this reference is evident for historical reasons. The theme of citizenship rests on a friable layer which is that of the tenure of states, and often and willingly, precisely when a state presents itself as very strong, tries to present itself as very strong in the international context, those weaknesses emerge that then, in the face of history, also create these problems that in Germany as in Italy we have experienced. Now, it is known that in German legal language, citizenship, nationality, and state and national belonging are almost synonyms and are expressed with the expression *Staatsangehörigkeit*. To which, by the way, some thinkers, I think in particular of Habermas, have opposed the lemma *Staatsbürgerschaft*, because the difference between *Staatsangehörigkeit* and *Staatsbürgerschaft* is evident. In particular, Eberle, you will allow me to read a very short passage, in that essay I was recalling, writes that the German concept of *Staatsangehörigkeit* is now a provocation. It suggests, in effect, the idea that the citizen must be belonging or even *gehören*, be proper, even in the sense of property of the state. The exact opposite is true. If it is true that the state exists for the will of man and not vice versa, the concept of *Staatsangehörigkeit* is misleading if not erroneous. Therefore, when one seeks an answer to the fundamental question about the bond that unites concrete citizens to their *res publica*, one must never start from the State. And one must not start from the State because one must start from the individuals. This ends the quote from Eberle.

So, I ask myself, together with you, from where do the censures of the referring judges start instead? Here, in the report, the most excellent reporting judge illustrated that the four referring judges have proposed the hypothesis of healing a supposed constitutional flaw on the basis of algorithms, often also complex, that seek a foothold in the limit of generations from the moment of the ancestor’s emigration and then also on the place of birth, but it has been well highlighted that the substratum of this manipulative intervention is actually the recovery of a commonality of language, a commonality of history, of culture, and of traditions. And it is effectively so, because if we look at the ordinances of Bologna and Florence, we have seen that they are largely overlapping, the two judges recall a spiritual identity of the nation, the horizontal dimension of the national community. They underline the union between citizenship and nationality, commonality of language, cultural and historical traditions. The one from Rome complains of the fact that the law on citizenship would design a status pertaining to a purely individual and private sphere, as if that were the absolute evil, remaining instead extraneous to the community dimension understood as a web of concrete relationships between a person and community. And similar considerations have been taken in the ordinance of Milan, I will not cite it to save a few minutes.

Now, clearly I cannot here, together with you, debate on the theme of the scientific dignity of the concept of the cultural, historical, traditional, territorial community, the identity community. But I can limit myself to recording that cultures, styles, forms of life, models of belief and customs exist, they certainly exist, but they are malleable products, always continuously shaped and reshaped by time. In the same, in the same anthropological debate, they become a homogeneous integrated complex only in what are called the so-called populations of ethnographic interest. And I doubt that the Italian people can be, precisely, likened to those examples of populations that live on those islands where no one has ever, no foreigner has ever set foot. In short, I believe that the referring judges, to whom the attempt of a study aimed at arriving at more advanced equilibria, also from a social point of view, in the most paradigmatic heterogenesis of ends, instead have taken a road that is precisely fragile from a theoretical point of view, because they have made reference to this idea of a cultural community, an identity community, they have made it a hypostasis, that is, a community that pre-exists the legal, pre-exists the state, a homogeneous organic community, of which, precisely, the citizen would be a member because they would belong to it. And I believe that this is a pseudo-concept, a pseudo-modern one that we instead, on the plane of the strict public law debate, must serenely reject. Why? Because it is clearly incompatible with the principle of pluralism, which is an innervating principle of our Constitution. We in the Constitution also find the lemma ‘community’ in Article 44, where reference is made to the communities of workers of a company that participate in the management of the company. But from here, precisely, to draw something more, as the referring judges would like, in my opinion, there is a long way to go. And I believe that one must reject this mythopoiesis of an identity community that then is launched by a referral order to the public debate and is incredibly used by all parts of the public debate, and this is a symptom of the contradictoriness of the lemma, of the incoherence that it brings within a strictly legal reasoning. In short, this idea of a territorial, identity-based community, on closer inspection, is a prejudice and not a legal category. And it is for this reason that, in my opinion, the referring judges cannot validly build censures on it that, I repeat, as has already been said by those who preceded me, present themselves on the one hand as inadmissible because they attempt to create, to present as a root what in reality is the fruit, that is, they are the ones who create this identity of a community that we do not find in the Constitution, they try to present what is an epiphenomenon produced by them as if it were in reality an ur-phenomenon that we manage to read in the Constitution, and then, in the extreme limit, they are also unfounded precisely because that foothold with the system of constitutional principles of our charter is missing. So I insist on the conclusions that we have already submitted in the acts, Mr. President.

Final Questions and Clarifications from the Judges

President of the Court:

Are there any questions?

Unidentified Judge 1:

Just a request for clarification to Avvocato Mellone, I wouldn’t want to have misunderstood. Do you believe that the new discipline also applies to the main proceedings, and therefore that the new discipline provided for in Article 3-bis, paragraph 1, letter B, which excludes, let’s say, from the new discipline, those, that is, when the following conditions are met, namely that the status of citizen of the interested party is judicially ascertained following a judicial claim presented no later than 23:59 on March 27th… and do the judgments *a quibus* not fall into this hypothesis, in having requested, presented a claim within that deadline, or did I misunderstand that you were saying instead that the ascertainment is needed beyond the deadline? That’s it.

First Defense Lawyer:

Thank you for the question. So, I am reading the law. The law says: “It is considered to have never acquired Italian citizenship.” Substantive norm. Whoever was born in Italy, whoever was not born in Italy, unless, the law says, the status of citizen is judicially ascertained. So the condition, yes, the legal condition is the ascertainment, but I also say this for another reason, I take advantage of this question to give you a further element of evaluation. The status of an Italian citizen *jure sanguinis* never depends on a judicial claim. It cannot depend on a judicial claim. It is something that is ascertained prosaically when the child comes out of the mother’s womb. At birth, the legal system verifies A, B, and C. I could have filed a claim at 20, at 40, at 60, at 80, it has nothing to do with it. The substantive norm, by the will of the legislator, today is that of the first period we have just read. The procedural matter is an absolutely aleatory matter, and in any case, the same legislator says, “unless it has been ascertained, it is judicially ascertained,” that is, unless an ascertainment has already intervened in some way. And obviously, reference is made substantially to the question then of *res judicata*, which itself can be a valid exception. This is my interpretation, Councilor.

Unidentified Judge 2:

I just wanted to say that it’s shared by… anyway, never mind.

Professor Corapi:

No, I hadn’t reflected deeply on this question because it pertains to the new law, which is also important here today. But, precisely by reading the law, it says that the law substantially does not apply to those who presented the claim within a certain date. Now, if someone has not only presented the claim but has also gone forward with the judgment which is still pending, I think it is, it does not fall, precisely, into the… into the law. This was, I believe, the substantial question that, in truth, we had all posed to ourselves, because if everyone were to be included, then, practically, it would be useless to even talk about the law we are discussing today, because it would be replaced 100% by the new law. It is not replaced 100%. Furthermore, excuse me if I insist, otherwise colleague Mellone… furthermore, there are important considerations that lead one to believe that, not only the repealed law, by now, is still producing effects, but also that there are effects that are being produced by the new law and that in relation to this, the present, the present hearing of the court, the present appeals can already intervene. This is the part, let’s say, that I felt was new. Thank you.

President of the Court:

Very clear. Good, all matters will be decided. Goodbye.

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