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What Brazilian descendants of Italians beyond the second generation must do before the Picuso case is decided
You received a rejection letter from the Italian consulate in São Paulo. You read somewhere that a European court has taken up the case. So you wait. It feels logical — why fight now when a bigger ruling might come along and fix everything?
That reasoning is wrong, and it is the single most dangerous assumption we see from Brazilian applicants in this position.
The referral to the Court of Justice of the European Union (CJEU) registered as Case C-816/26, Picuso, does not suspend the Italian law that rejected you. Italian Law 74/2025 and its two-generation cap under Art. 3-bis of Law 91/1992 remain fully in force today. Your consular rejection stands. And if you do nothing, you may lose your right to appeal — for good.
The Italian Constitutional Court issued Order No. 147/2026 on 23 July 2026. It suspended its own proceedings and referred a specific legal question to the CJEU. The question is whether Art. 3-bis of Law 91/1992 — the provision that introduced the two-generation cap — is compatible with the right to EU citizenship under Arts. 9 of the Treaty on European Union (TEU) and 20 of the Treaty on the Functioning of the European Union (TFEU).
This matters enormously, but not in the way most people assume. Order No. 147/2026 is a pause in a constitutional dispute about EU law. It is not a moratorium on consular rejections. It is not a general freeze on enforcement of Law 74/2025. The two-generation cap continues to apply to every application processed from today until the CJEU rules — and potentially beyond, depending on what the CJEU says.
The same law had already survived a direct constitutional challenge. Italian Constitutional Court Judgment No. 63/2026, handed down on 30 April 2026, upheld both the generational limit and the 27 March 2025 filing cutoff as constitutionally valid. Parliament, the Court held, is entitled to require a genuine connection to Italy as a condition for citizenship by descent. The CJEU referral tests a separate and narrower question: EU citizenship compatibility. It does not undo that constitutional judgment.
No. The referral does not stay rejections. Italian consulates and courts continue to apply Law 74/2025 as written. A Brazilian applicant rejected today on the basis of the two-generation cap receives a valid legal decision under currently enforceable Italian law. That decision runs from the date of rejection, and time limits for appeal start to run immediately.
The Italian administrative appeals system works through the regional administrative courts, known as Tribunali Amministrativi Regionali (TAR), with further appeals available to the administrative appellate body. These courts are not bound to suspend proceedings simply because a CJEU referral is pending — a stay is discretionary and must be applied for with reasoned argument. It does not happen automatically.
In practice, this means a Brazilian applicant who is rejected and waits passively for the CJEU ruling risks missing the window to appeal the rejection at all. The standard deadline under Italian administrative law to challenge a consular rejection before a TAR is 60 days from the date the decision is communicated. Miss that deadline and the rejection becomes final — regardless of what the CJEU eventually decides.
The direct answer is: it depends entirely on which exception applies to your specific situation.
Law 74/2025 did not close every route. Art. 3-bis(1) preserves the right to citizenship by descent for applicants who meet at least one of three conditions: their claim falls within the first or second generation directly; they had a consular appointment confirmed before 27 March 2025 (Art. 3-bis(1)(a)); they had a judicial application lodged before that cutoff (Art. 3-bis(1)(b)); or they fall within the separate exceptions of Art. 5(1)(b) or (c) of Law 74/2025, which relate to residence ties and particular family reunification situations. These exceptions are not affected by Case C-816/26 and remain available independently of the CJEU referral.
For the third generation and beyond, the analysis turns on four key factors: generational distance from the Italian ancestor; the precise date of any original filing; whether a consular appointment was confirmed before 27 March 2025; and whether a judicial claim was submitted before the cutoff. Each produces a different legal position. None of them is resolved by waiting.
Here is the point that almost no commentary on Case C-816/26 addresses directly. The CJEU referral is framed as a question about EU citizenship rights under Arts. 9 TEU and 20 TFEU. Those rights are engaged only where the applicant, or an ancestor whose Italian citizenship generated the descent claim, already holds EU citizenship from another member state.
Nemo dat quod non habet — one cannot give what one does not have. A chain of citizenship transmission that has never included an EU dimension cannot acquire one retroactively from a CJEU ruling about EU citizenship rights.
A Brazilian applicant whose entire line is Brazilian-born, with no EU member state citizenship at any point, is outside the scope of Arts. 9 TEU and 20 TFEU. The Picuso referral will not help them, however the CJEU rules. This is not a minor procedural detail. It is the structural limit of the EU-law argument, and it is the point that separates a viable CJEU-based appeal strategy from a waiting game with no legal foundation.
Unlike in most common-law jurisdictions — where citizenship and nationality questions are resolved by a single domestic statute applied by a designated government authority — Italian citizenship by descent involves an interplay between Italian civil law, EU fundamental rights, and CJEU jurisprudence that has no real equivalent in Brazilian, British or Australian law. A Brazilian advogado advising on this case is navigating a completely different doctrinal structure. Brazil's own citizenship regime, governed by Art. 12 of the Federal Constitution of 1988, operates on a clear jus soli and limited jus sanguinis basis: none of the ambiguity between generational descent and EU free-movement rights that makes C-816/26 significant has a Brazilian counterpart. This is a question of Italian and EU law, and it requires Italian legal analysis.
In most cases, yes — and the 60-day window makes the timing urgent.
If you received a rejection based on the two-generation cap and you have any EU citizenship connection in your line, an appeal to the TAR should be filed and a suspension of proceedings should be requested on the basis of the pending C-816/26 referral. This keeps your case alive and positions you to benefit from a favourable CJEU ruling without restarting the whole process. The CJEU typically takes between 18 and 36 months to decide a preliminary reference of this complexity — meaning a ruling in Picuso is unlikely before late 2027 at the earliest. You cannot afford to let your appeal deadline expire whilst waiting for it.
If you have no EU citizenship anchor in your line, the C-816/26 strategy does not apply. The focus should instead be on whether any of the Art. 3-bis exceptions protect your filing, whether a TAR challenge on domestic grounds is available, and whether the separate joint sections ruling of the Italian Court of Cassation — Joint Sections, ruling No. 24045 of 26 July 2026 (Cass. civ., Sez. Unite, sent. 26 luglio 2026 n. 24045) — is relevant to your family's line. That ruling resolved a long-running question about whether a minor born abroad with dual nationality by jus soli lost Italian citizenship when their Italian parent later naturalised abroad. The answer is no. Many Brazilian-Italian descent cases previously blocked on this exact point may now have a clear path forward.
In our files, the most common procedural error in Brazilian-descent citizenship cases is treating the consular rejection as the end of the matter rather than the start of a 60-day countdown. Clients typically contact us four to six weeks after receiving a rejection, often with less than a fortnight remaining to file before the TAR. Once that window closes, no amount of subsequent case law — not the C-816/26 ruling, not Cassation No. 24045/2026 — can reopen the individual case. The procedural deadline is the first variable to resolve. Everything else follows from whether it has been preserved.
Does Case C-816/26 affect everyone with a pending Italian citizenship application from Brazil?
No. The EU-law argument in C-816/26 is relevant only if you or an ancestor in the qualifying descent line holds citizenship of an EU member state. If your entire qualifying line is Brazilian, the CJEU referral does not provide a basis for suspension or appeal. You should explore the domestic exceptions under Art. 3-bis and the impact of Cassation ruling No. 24045/2026 with a lawyer whose practice covers Italian citizenship by descent.
How long will the CJEU take to decide Case C-816/26 Picuso?
CJEU preliminary references of this type — involving fundamental rights and citizenship law — typically take between 18 and 36 months from the date of registration. C-816/26 was registered on the basis of Order No. 147/2026 of 23 July 2026. A ruling before late 2027 would be unusually fast. The practical consequence is that you cannot plan around the CJEU timeline: your Italian administrative deadlines run on their own clock.
What happens to my application if the CJEU rules in favour of applicants in the Picuso case?
A favourable CJEU ruling would bind Italian courts and, in principle, require Italian law to be applied consistently with EU citizenship rights for those in scope. However, it would not automatically revive applications that were rejected and not appealed in time. To benefit from the ruling, your case must remain procedurally open — either through a pending appeal or through a court-ordered suspension. This is why acting within the 60-day appeal window is the immediate priority, not the eventual content of the CJEU ruling.
HREFLANG BLOCK:
Editorial Team — Panato Law Firm Staff
