Since the introduction of Decreto-Legge 36/2025, many of our clients—particularly those of Italian descent—have asked whether their right to citizenship can still be defended in court, or whether we must wait for Parliament to take action.
This legal Q&A explains why the Constitutional Court—not Parliament or the Court of Cassation—may offer the most effective path to restoring justice for Italian descendants.
It also outlines how a single case already referred to the Constitutional Court could set a precedent that protects thousands of other families—even if their petitions are never heard directly.
If you’re wondering which legal body truly holds the power to safeguard citizenship rights under the new decree, this is essential reading.
Q: Why is the Constitutional Court our best chance to eliminate the restrictions imposed by Decreto-Legge 36/2025?
A: The Italian Constitutional Court is not a judicial body—in the sense that it does not belong to the judiciary. It is an independent power that stands above the three traditional branches of the State: Parliament, Government, and Judiciary. While these branches hold equal authority, it is the Constitutional Court that ensures the balance between them and guarantees that their actions comply with the Constitution.
Composed of fifteen judges (do not be misled by the term “judges”—they are not career magistrates, but top legal experts appointed among scholars, senior magistrates, and seasoned attorneys), the Court performs two essential functions:
- It determines whether laws align with the Italian Constitution.
- It resolves conflicts between branches of the state powers.
Each year, the Court decides around three hundred cases, the large majority of which concern whether national laws comply with the Constitution. Once a law—or part of it—is declared unconstitutional, it is no longer applicable by any public authority or judge.
Decisions may either uphold or dismiss the constitutional challenge, but outcomes can vary widely in form. The Court may state the only constitutionally compliant way a provision must be interpreted, declare only part of a law unconstitutional while leaving the rest intact, or even add a word or phrase to make the provision conform to constitutional standards. In some cases, the Court may avoid a direct ruling and instead issue a warning to Parliament, urging lawmakers to amend the law based on the Court’s interpretative guidelines.
The Constitutional Court has had a decisive impact on Italian citizenship law:
- In 1975, it eliminated the provision that caused women to lose Italian citizenship upon marrying a foreign national. (Paragraph 3 of Article 10 of Law No. 555/1912 was declared unconstitutional and entirely cancelled).
- In 1983, it established gender equality in citizenship transmission, requiring that laws be interpreted to allow both parents to transmit citizenship to their children (Paragraph 1 of Article 1 of Law No. 555/1912 was “saved,” but only if read as “father and mother.”)
- In January 2025, it ruled that the B1 language certificate requirement cannot be imposed on citizenship applicants who, because of age or disability, are unable to obtain it. (Article 9.1 of Law No. 91/1992 was “saved,” but only if read that people “affected by serious limitations in the ability to learn languages resulting from age, pathologies or disabilities, attested by public certification” are exempted.)
These decisions are binding and final. There is no appeal system to challenge a decision of the Constitutional Court—although, in some cases, proceedings have been brought before the European Court of Justice (ECJ) alleging violations of EU principles.
For these reasons, we strongly believe that—rather than relying on a democratic debate in Parliament, which today appears extremely limited—the Constitutional Court represents the most effective and impartial channel to restore justice for Italian descendants by challenging provisions of Decreto-Legge 36/2025 that conflict with constitutional principles.
As for timing, while each case may vary, a decision is generally provided within a year. We can also refer to our most recent experience: in late November 2024, a judge in Bologna referred a case to the Constitutional Court challenging the constitutionality of Article 1 of Law No. 91 of 1992 in relation to several constitutional provisions. The central issue was whether Italian citizenship may be claimed by descendants across unlimited generations. The hearing was scheduled by February and set for June 25, 2025. The Constitutional Court typically delivers its ruling within three months of the hearing.
Q: Does every citizenship case need to go to the Constitutional Court in order to benefit from its decision?
A: No, absolutely not. It is not necessary for every citizenship petition to be brought before the Constitutional Court.
What matters is that at least one case—among the hundreds of petitions filed in different courts—is referred to the Constitutional Court by a judge. This happens when a judge, while evaluating a specific case, identifies a fundamental constitutional issue that must be resolved in order to apply the law correctly. If the judge believes that one or more provisions of Decreto-Legge 36/2025 may be unconstitutional—or must be interpreted differently to comply with the Constitution—they may formally refer the question to the Constitutional Court.
Once the Constitutional Court rules on that question, its decision applies to all similar cases, even if those cases were not individually referred to the Court. That means petitioners across the country benefit from a single constitutional ruling.
Q: What is the difference between the Court of Cassation and the Constitutional Court?
A: These two institutions have profoundly different roles—and very different impacts on citizenship law.
The Court of Cassation is the highest level of the Italian judicial system. It is the third and final level of justice in civil, criminal, and tax cases. It does not re-evaluate facts but ensures that the law is interpreted and applied consistently by judges of merit (both at trial and appellate levels) across the country. With over 350 judges divided into civil and criminal sections, it plays a central role in shaping national legal precedent. Each year, it decides approximately 50,000 criminal cases and 35,000 civil cases.
The Constitutional Court, by contrast, is not part of the judiciary. It is an independent authority, not strictly a “court” in the ordinary sense, but a constitutional body whose function is to act as guardian of the Constitution and arbiter of conflicts between the powers of the State. It rules on whether laws comply with constitutional principles and ensures that legislative, executive, and judicial actions remain within constitutional limits. With just 15 constitutional expert guardians, the Court manages approximately 300 cases per year, most of which concern the constitutional compatibility of national laws.
In short: the Constitutional Court ensures that any law referred by a judge aligns with the Constitution, to the benefit of individuals, authorities, and the State as a whole. It addresses the general compatibility of legal norms with constitutional principles.
By contrast, the Court of Cassation ensures that judges of merit interpret and apply the law consistently to individual cases. It does so by referring to prior decisions of the regular Sections of the Cassation, and—when available—by following the authoritative principle of law established by the United Sections (Sezioni Unite) of the Court.
Q: Has there ever been a citizenship case where both the Constitutional Court and the Court of Cassation intervened?
A: Yes—this dynamic has been crucial in shaping Italian citizenship law, most notably through what is now called the “1948 rule.” It reflects the interaction between the Constitutional Court and the Court of Cassation over the course of decades.
Originally, Article 1 of Law No. 555 of 1912 allowed only the father to transmit Italian citizenship to his children. In 1983, the Constitutional Court was asked to assess the constitutionality of this rule. Rather than declare the article invalid, the Court reinterpreted it in a constitutionally compliant way—requiring it to be read as if citizenship could be transmitted by both the father and the mother. This interpretation was theoretically applicable to any individual case in the future.
However, many individuals born to Italian mothers in earlier generations wondered whether they too could benefit retroactively from this decision. Over the next two decades, numerous cases were filed before courts of merit and eventually escalated to the Court of Cassation. In 1998 and 2004, the United Sections of the Court of Cassation held that Article 1 could not apply to cases predating the Constitution of 1948, since the principle of gender equality did not exist before that time. But in 2009, the same court reversed its position, ruling that maternal transmission of citizenship was indeed valid even before 1948. This landmark reversal established the “1948 rule.”
Since a court decision (even by the Court of Cassation) applies only to the parties of the specific case, as a result, any person born to an Italian mother prior to 1948 must still go to court to obtain a ruling specific to their own case in order to be recognized as an Italian citizen.
This case shows how the Constitutional Court sets—once and for all—the constitutional interpretation of a law, while the Court of Cassation later determines how that interpretation must be applied by judges of merit in future cases brought before them.
Q: Is there another example that helps clarify the role of the Court of Cassation, as distinct from the Constitutional Court?
A: Yes. A current issue involving citizenship for minors offers a clear example of how the Court of Cassation functions differently from the Constitutional Court.
For many years, both Italian consulates and courts of merit applied Article 7 of Law No. 555 of 1912 in cases where an Italian parent had naturalized after the birth of their child—even if only one day later. Under this interpretation, the child retained the right to Italian citizenship.
However, starting in 2019, the Tribunale di Roma began applying Article 12 instead. Based on that provision, children under 21 years old at the time of their parent’s naturalization were deemed to have automatically lost Italian citizenship. This led to the systematic rejection of such claims.
The issue escalated to the Court of Appeal, where early decisions were inconsistent. Eventually, however, the appellate courts aligned with the Rome First Instance Court, applying Article 12 uniformly and rejecting claims by children of naturalized parents.
Unhappy with this interpretation, petitioners appealed to the Court of Cassation, arguing that Article 7—not Article 12—should apply.
In 2023 and 2024, the Court of Cassation issued rulings aligned with the lower courts, upholding the interpretation based on Article 12. However, a shift may be underway. The earlier decisions were decided without public hearings, while the 2025 cases have all been heard publicly, with much broader legal argumentation.
Moreover, a major change has occurred in the position of the Public Prosecutor’s Office, which has now fully aligned with the position of the attorneys, advocating for the application of Article 7.
Past experience—particularly in the evolution of the 1948 rule—shows that the Court of Cassation may revise its stance over time, especially after broader jurisprudential reflection and institutional input. This case demonstrates the core function of the Court of Cassation: ensuring that laws are interpreted and applied consistently across the country. It does not assess the constitutionality of laws, like the Constitutional Court does, but works within the constitutional framework to resolve doctrinal and interpretive disputes across the judiciary.