How the EU court referral reshapes risk for Italian citizenship cases

Current as of July 27, 2026, the controlling point for counsel is narrow but consequential: the Italian Constitutional Court’s Order 147/2026 was deposited on July 23, 2026, and it refers the Article 3-bis question in Law 74/2025 to the Court of Justice of the European Union; it does not suspend Law 74/2025 across Italian courts or reopen citizenship-by-descent pathways by itself. The available English text being used by many practitioners is an ItalyGet.com attorney translation, not an official Constitutional Court translation, and should be checked against the Italian original when available.[1]

This is a regulation-risk analysis, not legal advice. The immediate practical question is not whether the referral has an “impact” in the abstract. It is whether a lawyer can now make a better filing choice: move for a stay, resist an adverse application of Article 3-bis, preserve an appeal point, or tell a prospective client that the statute remains enforceable while the CJEU process runs.

What the referral changes now, and what it leaves in force

Order 147/2026 suspends the Constitutional Court’s own proceeding while it asks the CJEU to decide whether Article 3-bis is compatible with EU law. It is not a national injunction against Law 74/2025. Italian tribunals remain faced with a statute that is formally in force, and applicants remain exposed to its limits unless a court in their case grants procedural relief or later disapplies the rule after a binding EU-law ruling.[1][2]

That distinction matters because it separates a stay argument from a merits victory. A pending tribunal case can now point to an active preliminary-reference order from Italy’s Constitutional Court. That is a materially stronger basis for suspension than pre-referral uncertainty. But the lawyer still has to connect the CJEU question to the disposition of the specific case.

The expected CJEU timeline is also not a remedy. Public practitioner commentary has described preliminary rulings as typically taking 12 to 18 months, while attorney Marco Mellone has requested expedited treatment under Article 105 of the CJEU Rules of Procedure. The expedited request may matter, but until granted it is a pending request, not a shortened schedule.[3]

The referral is about Article 3-bis, not every jure sanguinis problem

The referred issue concerns Article 3-bis and the so-called original preclusion for foreign-born dual citizens. That is the lane. Counsel should not read Order 147/2026 as a general invitation to pause every Italian citizenship-by-descent dispute.

At least three categories need to be kept outside the referral unless a separate, case-specific argument supplies a bridge: disputes centered on the “minor issue,” claims involving exceptions for exclusive Italian ancestry, and scenarios built around consular appointments before the March 27, 2025 cutoff. Commentary on the reform has treated those situations as procedurally distinct from the referred Article 3-bis question.[3]

The public stakes are large, but they are context rather than operative law. CNN reported that roughly 60,000 applicants filed before the March 27, 2025 cutoff, while broader public reporting has described the affected Italian-descendant diaspora in the tens of millions, including large communities in Brazil, Argentina, and the United States. Those figures explain why the referral is being watched closely; they do not decide whether a particular tribunal should stay a particular proceeding.[4]

Three procedural postures, three different risk calls

Pending first-instance cases: the stay motion is now the center of the file

For pending first-instance tribunal proceedings, Order 147/2026 gives counsel the most concrete procedural tool now available: a request to suspend the case under Article 295 c.p.c. while the CJEU decides the referred EU-law question. The point is not that every judge must stay every citizenship case. The point is that a pending CJEU reference from the Constitutional Court makes the prejudicial link easier to state and harder to dismiss as speculative.

A disciplined motion should start with dependency. If the applicant loses only because Article 3-bis is applied, and if the referred question asks whether that restriction is compatible with Articles 9 TEU and 20 TFEU, the Italian court’s decision depends on the answer from Luxembourg. That is the procedural hinge. It is stronger than a generalized plea that the reform is controversial or that many families are affected.

The Constitutional Court’s own sequence makes the stay argument sharper. In Judgment 63/2026, the Court had taken an acte clair posture on the EU-law problem, treating the matter as sufficiently clear not to require a CJEU referral. Later, in Order 147/2026, it referred the same EU-law problem. That later referral does not erase Judgment 63/2026, and counsel should not present it as an implied merits reversal. But for stay purposes it undercuts the premise that the EU-law issue is too obvious to justify waiting for the CJEU.[1][5]

The better use of the contradiction is modest and procedural: if the Constitutional Court itself has now found a reference necessary, a trial judge has a defensible basis to avoid deciding a case on a statutory rule that may have to be disapplied. That is not a prediction of the CJEU outcome. It is a record-preservation argument tied to judicial economy and the risk of inconsistent decisions.

The motion should also define what it is not asking for. It is not asking the tribunal to declare Law 74/2025 void. It is not asking for a nationwide halt. It is not asking the judge to decide the EU-law question ahead of the CJEU. It is asking the tribunal to hold a case whose outcome turns on Article 3-bis until the court with interpretive authority over EU law answers the referred question.

That framing helps with the predictable objection from the state side: the statute is in force and must be applied unless displaced. The answer is not to deny that premise. The answer is that suspension is a procedural response to a live prejudicial question, not a refusal to apply the statute today. If the judge denies a stay and applies Article 3-bis, the applicant may face a judgment that later sits uneasily with a binding CJEU ruling. If the judge grants a stay, the case waits but avoids a merits decision on a potentially incompatible rule.

For risk files, counsel should separate three issues in the stay request:

• Decisiveness: explain why Article 3-bis controls the applicant’s recognition claim.
• Identity of question: show that the CJEU reference concerns the same EU-law conflict the applicant relies on.
• Procedural consequence: request suspension of the individual proceeding, not relief broader than the tribunal can grant.

The stay request is weaker where Article 3-bis is only peripheral, where the claim fails on a separate ground, or where the applicant’s theory falls into an excluded category. A tribunal does not need Luxembourg’s answer to decide a case that can be resolved without applying the referred restriction.

Appeals from adverse decisions: preserve the EU-law point, but do not assume the appeal pauses itself

Appeals are more constrained because an adverse decision has already been issued. Order 147/2026 may still matter, especially where the adverse judgment turned on Article 3-bis and the appellant can properly argue that the issue is now pending before the CJEU. But the procedural posture is different from a first-instance case awaiting decision.

The appellate file should be checked for preservation. Was EU-law incompatibility raised below? Was the Article 3-bis issue decisive? Is there a procedural mechanism to request suspension or otherwise ask the appellate court to account for the pending preliminary ruling? These are not cosmetic questions. A referral helps only if the appeal can carry the issue to a court capable of doing something with it.

Mazzeschi’s pre-referral discussion of the new citizenship law treated the reform as an immediate litigation problem for cases already moving through Italian courts. Order 147/2026 adds an EU-law development to that posture, but it does not convert every adverse judgment into an automatically suspended appeal.[6]

Cases not yet filed: current law still governs the filing decision

For matters not yet filed, the referral is a risk variable, not a filing authorization. Law 74/2025 remains in force. A prospective applicant who is barred by Article 3-bis today remains barred unless a court later disapplies the rule, the law changes, or the applicant fits an exception outside the referred issue.

Counsel’s advice in this posture should be explicit about timing. Filing now may create a pending case in which a stay request can be made, but it also requires litigating under a hostile statute and accepting cost, delay, and uncertainty. Waiting avoids some immediate litigation expense but may leave the applicant outside any procedural posture that can benefit from interim court management. The referral does not eliminate either tradeoff.

The EU-law theory is serious, but it remains an argument until Luxembourg rules

The Article 3-bis challenge is built around EU citizenship. The core theory is that a member-state nationality restriction, even though nationality remains within member-state competence, cannot be applied in a way that conflicts with Articles 9 TEU and 20 TFEU where the practical effect is to deny EU citizenship status. If the CJEU accepts that theory as applied to Article 3-bis, Italian courts would be bound under EU primacy to disapply the incompatible restriction.

Damiani & Damiani’s framework usefully organizes the EU-law challenge into six grounds: citizenship as a gateway into EU rights; retroactivity and legal certainty; the legal fiction that affected descendants “never acquired” citizenship; automatic operation without individualized proportionality; indirect discrimination caused by consular inefficiency; and the weakness of treating the issue as acte clair after the Constitutional Court’s later referral. Those are advocacy-grounded risk signals, not established holdings by the CJEU in this dispute.[7]

The automatic-operation point may become especially important because Article 3-bis does not merely regulate future documentation timing. As described in practitioner analysis, it operates through an original preclusion for certain foreign-born dual citizens. That structure is why the case has moved beyond ordinary administrative inconvenience and into the EU-law territory of status, legal certainty, and proportionality.[7]

Still, counsel should resist translating a strong EU-law architecture into a promised result. The CJEU may accept the challenge, narrow it, reject it, or answer in a way that leaves additional work for Italian courts. Until there is a ruling, the legally safe statement is procedural: the referral creates a more credible basis for suspension and preserves a path to disapplication if Article 3-bis is found incompatible with EU law.

What a future CJEU ruling could do

If the CJEU finds Article 3-bis incompatible with Articles 9 TEU and 20 TFEU, Italian courts would have to give effect to EU primacy. In practical terms, that would mean disapplying the incompatible restriction in cases within the scope of the ruling. It would not necessarily decide unrelated jure sanguinis issues, cure evidentiary defects, or resolve claims outside the referred category.

If the CJEU upholds the compatibility of Article 3-bis, stayed cases would return to Italian tribunals under a much more difficult merits environment for affected applicants. If the ruling is narrow, counsel will need to classify cases again against the exact language of the judgment. The present filing value of Order 147/2026 lies in creating room to wait for that answer where the case truly depends on it.

Present-tense obligations for counsel

The immediate task is classification. A pending first-instance case controlled by Article 3-bis should be reviewed for an Article 295 c.p.c. stay motion. An appeal should be reviewed for preservation, available suspension mechanisms, and the decisiveness of the EU-law question. A not-yet-filed matter should be analyzed under the law as it stands, with the referral disclosed as uncertainty rather than relief.

Client communications should be precise. The CJEU timeline is uncertain, the 12-to-18-month estimate is not guaranteed, and the Article 105 expedited request remains pending unless and until granted. The ItalyGet.com translation is useful and currently important, but not official. The Constitutional Court’s referral improves procedural options for some pending cases, especially first-instance tribunal proceedings, but it does not suspend Law 74/2025 or neutralize Article 3-bis today.

References

1. Full English translation of Order 147/2026 — ItalyGet.com — July 23, 2026
2. Italy sends citizenship-by-descent dispute to EU court — Courthouse News
3. Italian Citizenship Reform Referred to the EU Court: What Changes for Applicants? — MG Law Firm
4. The global battle for Italian citizenship rights just got a potential lifeline — CNN — July 25, 2026
5. Constitutional Court 2026: citizenship limits confirmed — Boccadutri
6. Italian Citizenship by Descent: Constitutional Court Ruling on the New Citizenship Law — Mazzeschi
7. Does Law 74/2025 vs EU Law CJEU Referral on Italian Citizenship? — Damiani & Damiani