Italian Citizenship by Descent: could the Constitutional Court protect applicants who tried to apply before March 27, 2025?

By Avv. Salvatore Aprigliano

Italian attorney at law, Aprigliano Law Firm – Milan, Italy

The reform of Italian citizenship by descent introduced by Decree-Law No. 36/2025, later converted into Law No. 74/2025, has created a crucial legal question for many descendants of Italian citizens born abroad.

What happens to applicants who had already started the process before March 27, 2025, but were unable to obtain a consular appointment before the cut-off date?

This question is particularly important after Italian Constitutional Court Decision No. 63/2026. In that decision, the Court rejected the general constitutional challenge raised in that case, but it also expressly left open a different issue: the position of people who had already started the recognition process but had not yet received an appointment. The Court stated that this specific issue was outside the scope of the case before it and had not been raised by the referring judge.

That distinction matters.

It means that the Constitutional Court has not yet ruled on whether applicants who were seriously and documentably active before March 27, 2025, but could not obtain an appointment for reasons beyond their control, should also be protected.

What is an “Additive Judgment” in Italian Constitutional Law?

In Italian constitutional law, an additive judgment is a decision in which the Constitutional Court does not strike down an entire law. Instead, it declares the law unconstitutional insofar as it fails to include a category of people or situations that the Constitution requires to be protected.

In simple terms, the Court may say:

For example, if a law protects one category of people but unjustifiably excludes another similar category, the Court may intervene by adding the constitutionally necessary protection.

In the context of Italian citizenship by descent, the possible issue could be framed as follows:

This would not necessarily require the Court to invalidate the entire reform. It would instead ask the Court to recognize a specific transitional protection for a specific category of applicants.

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Why decision No. 63/2026 did not close the door

In Decision No. 63/2026, the Constitutional Court considered the transitional rule introduced by the 2025 reform. The Court placed importance on the fact that the legislature protected those who had already obtained recognition, had filed an application, or had at least received a consular appointment before the relevant deadline.

However, the Court also clarified that it was not deciding the different situation of those who had started the process but had not received an appointment.

This is the key point:
not decided does not mean rejected.

The issue remains legally open.

What happened with the June 9, 2026 hearings?

The Constitutional Court hearing of June 9, 2026 concerned referral orders Nos. 4, 40 and 41/2026, coming from the Courts of Mantua and Campobasso. The official hearing page identifies the cases as concerning the new limits on Italian citizenship by descent and the application of Article 3-bis to people born abroad before the reform entered into force.

The official referral orders from Campobasso and Mantua focus on the general constitutional issues raised by the new Article 3-bis, including retroactivity, legitimate expectations, equality, and the distinction between those who had filed an application before the deadline and those who had not.

For this reason, even if the issue of “activated applicants without appointment” was discussed by the parties, the Court may decide not to rule on it in the June 9 cases if it considers that the question was not specifically and autonomously referred by the lower courts.

That would not necessarily be a negative decision on the merits.

It may simply mean that the Court cannot decide a question that was not properly framed in the referral order.

Why a new Constitutional Referral may be necessary

Italian constitutional review is generally limited by the question submitted by the referring judge.

This means that, for the Constitutional Court to decide the specific position of applicants who had activated the process before March 27, 2025 but had not obtained an appointment, a new court may need to raise a new and autonomous constitutional question.

Such a question could ask whether Article 3-bis is unconstitutional:

This would be the natural setting for a possible additive judgment.

Why the issue is legally serious

The legal argument is based on a simple principle: applicants should not be treated differently based only on the accidental availability of a consular appointment.

Many applicants were not inactive. They may have:

• tried to access the Prenot@mi consular booking system;
• monitored appointment availability;
• contacted the consulate;
• hired an Italian attorney or citizenship professional;
• requested birth, marriage, death or naturalization records;
• ordered translations, apostilles or certifications;
• started genealogical research;
• prepared their application file before the law changed.

If the only protected category is made up of those who were lucky enough to obtain an appointment, while those who tried but could not access the system are excluded, a serious issue of equality and legitimate expectations may arise.

The legal question is therefore not whether every potential applicant should be protected.

The question is narrower:

Should the law also protect those who can prove that they had already seriously activated the process before the cut-off date, even though they could not obtain an appointment due to circumstances beyond their control?

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Why applicants should preserve evidence

Applicants who started the process before March 27, 2025 should carefully preserve all available evidence.

Relevant evidence may include:

• screenshots of the consular booking platform;
• emails to or from consulates;
• engagement letters with attorneys or professionals;
• payment receipts for legal, genealogical or document services;
• requests for vital records;
• requests for naturalization records;
• translation and apostille orders;
• correspondence with public authorities;
• evidence of repeated attempts to obtain an appointment.

The strength of a future case may depend heavily on the ability to prove that the applicant was not inactive before the law changed.

Conclusion

Decision No. 63/2026 did not necessarily close the door for all applicants affected by the 2025 reform.

On the contrary, the Constitutional Court expressly left open the specific issue of applicants who had started the process but had not received an appointment before the cut-off date.

If this question is properly raised in a future case, the Court may have the opportunity to decide whether an additive judgment is required to protect this category of applicants.

The key message is clear:

The issue is not closed. It remains legally open and may become one of the most important constitutional questions in future Italian citizenship by descent litigation.

FAQ Section

What is an additive judgment?

An additive judgment is a decision of the Italian Constitutional Court declaring a law unconstitutional because it fails to include a category that should have been protected under the Constitution.

Did the Constitutional Court already reject the position of applicants without appointments?

No. In Decision No. 63/2026, the Court did not decide the specific issue of applicants who had already started the process but had not received an appointment. It stated that the issue was outside the scope of that case.

Could the issue be raised again?

Yes. A lower court may raise a new and autonomous constitutional question specifically focused on applicants who had taken concrete steps before March 27, 2025 but could not obtain an appointment.

What should applicants do now?

Applicants should preserve all documents proving that they had started the process before March 27, 2025, including screenshots, emails, engagement letters, record requests, translation orders, apostilles and correspondence with professionals or authorities.

Does this mean the Constitutional Court will certainly protect these applicants?

No. The issue remains open. A future decision would depend on how the question is raised, the evidence in the case, and the Court’s assessment of the constitutional arguments.