New order of the Court of Avellino on Italian citizenship by descent following the reform

A new order of the Court of Avellino continues to bring to the forefront of the debate the effects of the 2025 reform on Italian citizenship by descent. The order, issued on 15 September 2026, raises once again a particularly significant constitutional issue: can a subsequent law provide that a person born abroad before the reform must be considered as if they had never acquired Italian citizenship?

The issue was raised in proceedings concerning a minor born abroad. The judge held that the issue concerning Article 3-bis of Law No. 91/1992, introduced by Decree-Law No. 36/2025 and converted into Law No. 74/2025, was relevant and not manifestly unfounded, and consequently ordered the proceedings stayed and the records transmitted to the Constitutional Court.

The case examined by the Court of Avellino

The dispute arose from the refusal by the Civil Status Officer of the Municipality of Solofra to transcribe the birth certificate of a child born abroad.

The parents challenged the refusal, requesting transcription of the birth certificate. In the meantime, one of the parents had obtained, by a final judgment of the Court of Naples, recognition of their status as an Italian citizen iure sanguinis.

According to the reconstruction set out in the order, prior to the reform, the settled case law of the Court of Cassation regarded citizenship iure sanguinis as a status originally acquired by birth. The subsequent recognition proceedings therefore had a declaratory rather than constitutive nature: the judgment did not create citizenship but established an already existing status.

The issue of retroactivity

It is precisely on this point that the constitutional issue focuses.

Article 3-bis, in the cases provided for by the new legislation, may also apply to persons born abroad before the reform entered into force, providing that they are to be considered as having never acquired Italian citizenship. In the case under examination, according to the judge, the conditions that would allow the situation to be exempted from the new legislation are not present.

The order nevertheless highlights a possible substantive consequence: if, under the previous legislative and jurisprudential framework, citizenship had already been acquired at birth, subsequently treating the person as if they had never possessed it means retroactively affecting an already existing status.

The judge therefore observes that the effect of the new provision could, in substance, be regarded as comparable to an ex tunc revocation or a retroactive loss of status civitatis.

The connection with the european proceedings

The Avellino order forms part of a broader judicial context. A different issue concerning Article 3-bis has already been referred by the Constitutional Court to the Court of Justice of the European Union by Order No. 147/2026. The proceedings are registered in Luxembourg under Case No. C-816/26, Picuso, and concern the compatibility of the new legislation with Articles 9 TEU and 20 TFEU.

The issue raised by the Court of Avellino nevertheless follows a distinct path: the question specifically concerns the compatibility of Article 3-bis with Articles 2, 3 and 22 of the Italian Constitution.

What changes for citizenship by descent?

The order does not declare the reform unconstitutional. Its significance lies in having referred to the Constitutional Court a specific question: whether it is constitutionally legitimate to apply the new legislation to persons born abroad before its entry into force, retroactively classifying them as persons who never acquired Italian citizenship.

For those following a procedure for Italian citizenship by descent, this therefore represents a further step in the complex litigation arising from the 2025 reform.

The possession of an Italian passport, in this context, must likewise be regarded as a consequence of possessing citizenship, rather than as an element that independently determines the acquisition of the status.

The minor's proceedings now remain stayed pending the decision of the Constitutional Court. That ruling will clarify whether, and to what extent, the new legislation may have retroactive effects on situations that, according to the previous diritto vivente, had been perfected directly at the time of birth.

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The content of this article is intended to provide general information on the topic. For doubts or specific cases, it is advisable to seek specialized legal advice tailored to your particular situation.

Article written by Alessia Ajelli, Managing Associate of LCA Studio Legale, Italian lawyer specialized on Italian immigration and citizenship law, and Paolo Grassi, Trainee of LCA Studio Legale.