Can EU Law overrule the Tajani Decree on Italian Citizenship?

While the Italian Parliament introduced Law 74/2025 (The Tajani Decree) to restrict jure sanguinis, Italian citizenship carries a far broader legal reality: it automatically confers European Union citizenship and all associated rights under EU treaties.

In this episode, Avv. Salvatore Aprigliano explores the European dimension of Italian citizenship litigation. When domestic legislation restricts or removes a citizenship status historically recognized from birth (ex tunc), it directly triggers fundamental principles of European Union law—opening critical avenues for protection before independent Italian judges and the Court of Justice of the European Union (CJEU).

What you will learn in this episode

• The Dual Nature of Italian & EU Citizenship: Why obtaining an Italian passport is fundamentally an acquisition of European Union rights, freedom of movement, and economic residency.
• EU Legal Precedents (Rottmann & Tjebbes): How European Court of Justice jurisprudence establishes that member state rules on loss or acquisition of citizenship must respect the principle of proportionality.
• The CJEU Referral Mechanism: How an Italian tribunal judge can pause domestic proceedings and refer Law 74/2025 directly to Luxembourg to test its compliance with EU law.
• Arbitrary & Retroactive Deprivation: Why retroactively barring descendants from proving a birthright status creates profound conflicts with European constitutional standards.
• The Strategic Defense: How Aprigliano International Law Firm incorporates European Union jurisprudence into court filings to defend clients facing administrative exclusions.

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After ruling number 63 of 2026 by the Constitutional Court, many Italian descendants around the world felt like the game was over. They read headlines, comments, social media posts and thoughts. The Constitutional Court upheld the Tajani decree, so there’s nothing left to do.

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But that’s too simple of a reason.

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It’s true. The Constitutional Court rejected some of the challenges raised against the new law. It’s true. Ruling 63 of 2026 made the path harder. But it’s not true that it closed off every possible avenue because Italian citizenship by descent doesn’t just exist within Italian law. Italian citizenship is also European Union citizenship.

And when a national law affects the status of an Italian citizen, it can also affect the rights linked to European citizenship. And that’s where the game shifts to a different playing field. It’s no longer just about what Italian law says, but also is that Italian law compatible with European Union law?

And if it isn’t, what tools does the Italian judge have? The Constitutional Court closed some doors on the domestic front, but it remains to be seen if those same doors can be reopened on the European level. This is the central point of today’s episode.

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For an American audience. The easiest way to understand this point is to think of the relationship between state law and federal law. Imagine you’re in a court in Texas, California, or New York. The case involves a state law. That law exists. It was passed correctly, and normally the judge would have to apply it.

But if that state law violates the United States Constitution or a higher federal law, what happens? The judge can’t say it’s a law of my state, so I’m applying it anyway. No, the judge has to look higher up if the state law conflicts with federal law. Federal law prevails and the state law is not applied in that case.

In Europe, the system isn’t identical because the European Union is not a federal state like the United States. But the basic concept is very similar. Italy can pass its own laws. It can regulate Italian citizenship. But Italy is part of the European Union, and every Italian citizen is also a European citizen.

So if an Italian law affects Italian citizenship and consequently also the European rights linked to that citizenship, the Italian judge has to ask a second question. Not only is this law valid under the Italian Constitution, but is this law also compatible with European Union law? And this is crucial because even if the Italian Constitutional Court said that the Tajani decree doesn’t violate in certain respects the Italian Constitution, this doesn’t automatically close the European issue.

These are two different levels. The first level is Italian, the Italian constitution. The second level is European European Union law. Because even if the Italian Constitutional Court said that the Tajani decree doesn’t violate in certain respects the Italian Constitution, this doesn’t automatically close the European issue.

These are two different levels. The first level is Italian. The Italian constitution. The second level is European European Union law. And if the Italian judge believes that the Tajani decree is incompatible with European Union law, they must not apply it in the specific case. This means that the judge evaluates the citizenship application according to the rules prior to March 27th, 2025.

In other words, without the new generational limits introduced by the Tajani decree, if, on the other hand, the judge believes that the point is not sufficiently clear, they can and in some cases must ask the Court of Justice of the European Union to interpret European law. This is the fundamental concept to keep in mind throughout the episode.

At this point, the question is why should European law care about an Italian citizenship law? The answer is simple because Italian citizenship is not just Italian citizenship, it’s also the gateway to European citizenship.

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There is no separate European citizenship obtained directly in Brussels. You become a European citizen because you are a citizen of a member state of the European Union. If you are Italian, you are automatically a citizen of the European Union. And this changes the way we have to look at the Tajani decree.

Because if a national law excludes you from Italian citizenship, the effect can also be to exclude you from European citizenship.

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And when European citizenship comes into play, the Court of Justice of the European Union has been clear on one point. Member states remain competent to establish the rules of their own citizenship, but they cannot exercise this competence while ignoring union law. Here is where the decisive point arises.

European law certainly comes into play in cases of loss or revocation of national citizenship, because losing the citizenship of a member state means losing European citizenship as well. But the question in the case of the Tajani decree is even more subtle. The Tajani decree doesn’t use the word revocation.

It doesn’t say, I’m taking away your citizenship. You are considered as if you had never acquired that citizenship. But then we have to ask ourselves, is it really just a failure to recognize or is it revocation by another name? And does this difference really matter under European Union law? This is precisely where the problem of the label used by the Constitutional Court begins.

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This is where ruling 63 of April 30th, 2026 of the Italian Constitutional Court comes into play. The court made a very specific choice. It said that the Tajani decree does not revoke an already acquired citizenship.

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According to the court, we are not dealing with a loss of citizenship, but with a failure to acquire or a failure to recognize a position that is not yet fully consolidated. Put that way, it might sound like a lawyer’s distinction, but imagine two brothers, same family, same Italian ancestor, same bloodline.

One gets recognized before the Tajani decree. The other doesn’t. The first is recognized as an Italian citizen from birth. The second, after the Tajani decree, might be told you never acquired Italian citizenship. But if the bloodline is the same, what really changes the label changes. In the first case the state says we recognize a status you had from birth.

In the second case, it says since you hadn’t obtained formal recognition yet, we consider that status as never acquired. And this label is decisive because if it’s a loss of Italian citizenship, then European citizenship also comes into play immediately. But if it’s just a failure to acquire, the court says there’s no need to ask.

The European Court of Justice. And here is the central question is it really enough to change the name of a measure to change its substance, or are we calling a failure to acquire something that, in its concrete effects, looks a lot like a loss of citizenship? This is where the criticism of the so-called fraud of labels comes from.

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During the parliamentary work to convert the Tajani decree, the Senate Constitutional Affairs Committee heard from Professor Enrico Grasso, full professor of constitutional law at the University of Turin and one of the most authoritative Italian scholars on citizenship. The hearing was held on April 9th, 2025, and on that occasion Professor Grasso used very strong words referring to the choice to qualify the mechanism as a failure to acquire Italian citizenship ex tunc, rather than a loss of it.

He said verbatim that the mechanism constitutes a textbook case of a fraud of labels.

See che key non ancora voi in voi judicial mente, una demanda di di stato centro Zanotti set marzo e considera non aver Maya ora questa formula e una formula che io keyamo tufa del etiquette pet perché del tutto evident che non non e che per ledge. See posta che uno non mi aqui stato uno status objetivo aqui stato perché la légende vigor nelle moment in cui qu’elles objeto e Naito.

Ya fatto a automatically la citta di danza e in possessor di uno status e quindi tecnica mente questa Norma anche se qualify to come. Siamo una Norma che pro futuro, dice che torno ray, ma le citta di Nancy e di fatto una perdita e di fatto una Norma che t e una status aveva. What does label fraud mean? Imagine a bottle of water.

Someone changes the label and writes. It’s not water, but the content inside hasn’t changed. in law. Something similar can happen. You can change the name of the measure. You can call it non acquisition. You can call it non-recognition. You can avoid the word revocation. But if the concrete effect is similar to a loss the judge must look at the substance, not just the label.

Grosso explains, in fact, that these are people whose citizenship was recognized by previous legislation from the moment of birth. And he adds that establishing today, retroactively that these people are considered as if they had not acquired that status, basically means asserting that they have lost it.

I’m not saying this. One of the constitutionalists heard by the Senate during the conversion of the Tajani decree is and Grosso adds an even more important point for this episode to the obvious problems of constitutional legitimacy. Equally obvious problems of compatibility with European Union law are added to the compatibility of the Union Europea. La Europea depende del processo della citta di Venezia nazionale. And this is exactly where we need to go now. Because if the Tajani decree actually produces the loss or substantial preclusion of Italian citizenship, then it can also produce the loss or preclusion of European citizenship. And so the question becomes inevitable.

What does European Union law really provide for in cases like this?

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At this point, the question is what does European Union law really require? The answer is not. Brussels automatically decides who is Italian. Italy remains competent to establish the rules of Italian citizenship. But when those rules also affect European citizenship, Union law demands certain guarantees.

The Court of Justice of the European Union has clarified that a state can establish its own rules on citizenship, but it cannot act in an automatic, blind, impersonal way when those choices also result in the loss or preclusion of European citizenship. It cannot simply take an entire category of people and say, from today you are all out without looking at who they are, without assessing their individual situation, without considering the personal and family consequences, without offering a real possibility to protect or recover that status within a reasonable time frame.

And this is where the Tajani decree becomes problematic, because it works like a switch turned off overnight. If you were born abroad, have another citizenship. Do not fall into the protected categories and had not already applied or obtained an appointment by March 27th, 2025. You are considered as if you had never acquired Italian citizenship automatically, without individual assessment, without a concrete examination of your history, and above all, without being granted a reasonable time frame after the entry into force of the law to request recognition and protect your position.

This is the point. The European problem of the Tajani decree is not just that the law is harsh. The problem is that the law operates by rigid categories without looking at the person and when European citizenship is at stake. Union law looks closely at precisely these organisms.

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So concretely, what can an Italian judge do? There are three scenarios. First, the judge believes that European Union law applies and that the Tajani decree is incompatible with that law. In this case, they must apply it, that is, not apply it in the concrete case. Second, the judge believes that European law may apply, but that the issue is not clear.

In this case, they can suspend the proceedings and ask the Court of Justice of the European Union to clarify the point. Third, the judge can follow the reading of the Italian Constitutional Court and hold that European law does not apply. And this is where the battle is played out, because the Constitutional Court decided on the level of the Italian constitution.

But the ordinary judge, when the European profile is raised and in our appeals it is expressly raised, must also assess European Union law, and if the Tajani decree is applied, the effect is concrete. The application is evaluated according to the rules prior to March 27th, 2025, so without any generational limit.

00:16:36.260 — 00:17:31.660

Since we recorded this video, an important update has come in Constitutional Court ruling number 63 seem to have closed the European path, but as I just explained, that path wasn’t necessarily closed on July 23rd, 2026, with order number 147, the same Constitutional Court suspended the proceedings and asked the Court of Justice of the European Union to clarify whether the new Italian law is compatible with EU law.

In essence, the European Court will have to assess whether Italy can retroactively change the rules and deny citizenship to people who, under the law in force at the time of their birth, had already acquired it, that a decree remains in force and the outcome cannot be predicted. But the European ruling could have a real impact on how the new law is applied going forward.

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At this point, you might ask yourself, but does this argument also concern me? The answer is potentially yes. If you met the requirements to be recognized as an Italian citizen under the law in force until March 28th, 2025, it concerns all those cases in which the Tajani decree prevents a person from asserting Italian citizenship, and consequently can also affect European citizenship.

This does not mean that every case is automatically a winner. It wouldn’t be serious to say so. Every situation must be carefully evaluated. The genealogical line, the dates, the documents, the citizenship of the ancestors, the history, and the legal strategy to be brought before the judge. But the point is this we must not take for granted that after the ruling of the Constitutional Court, the game is over.

European Union law remains a serious legal front, and it is important, especially for those who think I didn’t have an appointment. I didn’t have strong proof of activation before March 27th, 2025. For these people, European law is the first major line of defense. But then there is also a second additional line.

It concerns those who, before the Tajani decree, had already taken steps for the recognition of Italian citizenship. Those who had already tried to obtain an appointment but found themselves facing a blocked system, those who had already taken concrete actions to assert that right for these people, in addition to European law, another fundamental word comes into play reliance.

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And it is precisely from here that we will start in the next episode, because in the post Tajani world, it doesn’t really matter who you descend from, but it also matters when you started to assert that. Right?

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I’m Salvatore Aprigliano, Supreme Court attorney and founder of Aprigliano International law firm.