Case C-816/26, Picuso – Italian citizenship by descent and the limits of EU citizenship
For more than a century Italian citizenship passed from parent to child without limit, to millions of descendants of emigrants abroad. In 2025 Italy closed that door, and the Corte costituzionale has asked the Court of Justice whether Union citizenship allowed it to.
Facts
Decree-Law No 36 of 28 March 2025, converted into Law No 74 of 23 May 2025, inserted Article 3‑bis into the nationality law. Under it, a person “born abroad even before the date of entry into force” of the article who holds another nationality “is deemed never to have acquired Italian citizenship”, unless one of the listed conditions applies. The applicant had to have applied to a consulate or a mayor, or to a court, by 23:59 Rome time on 27 March 2025, or to have been given an appointment by then. Alternatively, a parent or grandparent had to hold, or have held at death, only Italian citizenship, or a parent had to have lived in Italy for at least two continuous years after acquiring citizenship and before the child’s birth. The applicants, descendants of Italian emigrants who are nationals of Brazil and Argentina, challenged the rule before the tribunals of Mantova and Campobasso, which raised questions of constitutionality. In judgment No 63 of 2026 the Corte costituzionale had already rejected similar challenges, including one based on Article 9 TEU and Article 20 TFEU, and refused to refer. By order No 147 of 2026, deposited on 23 July 2026, it has now referred the EU law question, while stating that it still considers the rule compatible. (Picuso is a fictitious name given by the Court.)
Question Referred
Do Article 9 of the Treaty on European Union and Article 20 of the Treaty on the Functioning of the European Union preclude the adoption of a rule such as that laid down in Article 3 bis of Law No 91 of 5 February 1992 (New rules on nationality), introduced by Article 1(1) of Decree-Law No 36 of 28 March 2025 (Urgent provisions on nationality), converted, with amendments, into Law No 74 of 23 May 2025, in so far as it represents a bar ab initio to the acquisition of Italian nationality by a person who was born abroad, even before the entry into force of that Article 3 bis, and who has another nationality, unless one of the conditions set out subsequently in that Article is satisfied?
Sources
OJ notice C/2026/5482 (EUR‑Lex) · Case file on CURIA · Corte costituzionale, order No 147 of 2026 · Commission v Malta, C‑181/23 (ECLI:EU:C:2025:283) · Tjebbes, C‑221/17 (ECLI:EU:C:2019:189) · Udlændinge- og Integrationsministeriet, C‑689/21 (ECLI:EU:C:2023:626)
Comment
Everything turns on whether Article 3‑bis takes away a status or prevents one from arising. The Court’s case law on nationality and Union citizenship concerns loss. In Tjebbes (C‑221/17) and Udlændinge- og Integrationsministeriet (C‑689/21) it accepted that a Member State may treat the absence of a genuine link as a ground for losing its nationality. It also required national authorities and courts to examine whether the loss of Union citizenship is proportionate in its consequences for the individual. The Corte costituzionale’s answer is that none of that applies. Article 3‑bis, in its words, is “a bar ab initio” and “not a revocation”. Its addressees had never had their status officially established, so no right of Union citizenship was actually exercisable and no individual examination is conceivable. The Court of Justice, it notes, has said that the consequences of a loss of nationality “cannot be hypothetical or merely a possibility”.
The difficulty is that, until March 2025, Italian law treated those same people as citizens from birth, by descent; what they lacked was recognition. If the Court of Justice regards them as having been Union citizens before the decree, even unrecognised, Article 3‑bis looks like a collective and retroactive loss of that status for millions of people. In that case, the requirement of an individual proportionality assessment would be hard to reconcile with a cut-off at 23:59 on a single day.
The Corte costituzionale relies on the other line of authority, Commission v Malta (C‑181/23), where the Court held in 2025 that the bond of nationality rests on “the special relationship of solidarity and good faith” between a State and its nationals. If that relationship justified condemning citizenship sold to investors with no link to Malta, the Corte reasons, it also justifies refusing citizenship to people born abroad with no link to Italy. The reference asks the Court of Justice to say whether the genuine-link principle works in both directions.