Andrea Lollo, full professor of Constitutional Law at theMagna Graecia University A lawyer from Catanzaro, he is the professional who submitted—on behalf of the Italiani.it Foundation—the request to refer the so-called Tajani Decree on citizenship to the Constitutional Court. We interviewed him.
The so-called Tajani Decree comes more than thirty years after the last law on the subject, the one on "ius sanguinis." Was the new measure motivated solely by the need to update the old law, or also by the excessive number of citizenship applications—with consequent bureaucratic problems of staffing and time—submitted in recent years?
The old citizenship law number 91 of February 5, 1992 is based precisely on the criterion of "ius sanguinis," linked solely to descent. This is a rule that allows the acquisition of citizenship. right of citizenship Going back far in time, to the first of our Italian ancestors. This has led to a stalemate in offices and embassies due to the proliferation of requests, especially from South America. It is, in fact, a mere recognition acquired at birth. This has stalled first the offices, then the courts. Thus the Tajani Decree intervened, based on a not entirely unconventional idea: to introduce a relationship based not only on blood but rather on a genuine bond with our country.
So where does the problem of unconstitutionality arise?
The decree states that citizenship is not acquired by those born before its entry into force and who have not applied for its recognition by the day before the law enters into force. This is therefore a retroactive deprivation of a previously acquired right. Because, under the previous law, simply by being born and having Italian ancestors, one is an Italian citizen, even before being recognized as such. This is a pre-acquired right.
How does all this fit into the violations of Articles 2 and 3 of our Constitution?
The right to citizenship is a prerequisite for all other constitutional rights and duties. To quote Rodotà, citizenship is a right to have rights. This decree strips rights from millions of people without granting them the opportunity to retain them. The Tajani Decree irrationally establishes a deadline that cannot be respected because the deadline—that is, the possibility of obtaining recognition—expires before the law enters into force. This prevents anyone who wishes to retain citizenship from fulfilling the legal requirement. We also raise the issue of this decree's lack of extraordinary necessity and urgency.
How does European citizenship come into play?
European citizenship is a second-level status because it is associated with the possession of nationality of a member state. The Court of Justice, in several rulings, has taught us that the loss of European citizenship resulting from national citizenship is contrary to the principles of the European Union if it is disproportionate. In our case, there is no way for the citizen to avoid losing their citizenship. Therefore, it constitutes a violation of the Treaties on the Functioning of the Union.
So, to address the problem of overflowing offices, how should we have intervened?
Differently, because if there's a problem involving the state's difficulty in managing it, the solution can't be to deny the right to address the slowness of the system. Rather, it can be to find a solution to the administrative problem in order to serve the right. The system should be expanded, or the submission of applications should be made easier.
Was there really a need to update the previous rule?
For decades, the criteria for granting citizenship have been debated. The 1990s law is anachronistic because it was based on the idea of a nation state, which today is increasingly open to migration. It is therefore no longer appropriate to the historical context and should be addressed with a comprehensive law. There are two challenges. On the one hand, addressing the criteria for acquiring citizenship in a balanced and thoughtful manner. On the other, reconsidering the entire framework of our legal system, which is not limited to the issue of citizenship, starting with the courts, is necessary. Cutting a right to resolve an impasse is not a viable solution. And it is wrong to address with a decree law an issue that has general repercussions for our legal system. Instead, it should be resolved by revising the law that currently anachronistically provides for the acquisition of citizenship rights..
To learn more about the appeal brought by the Italiani.it Foundation, you can read more in this article: The Italiani.it Foundation appeals against the Tajani decree.
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