JUDGMENT NO. 6

YEAR 2026

ITALIAN REPUBLIC

IN THE NAME OF THE ITALIAN PEOPLE

THE CONSTITUTIONAL COURT

composed of:

President: Giovanni AMOROSO;

Judges: Francesco VIGANÒ, Luca ANTONINI, Stefano PETITTI, Emanuela NAVARRETTA, Maria Rosaria SAN GIORGIO, Filippo PATRONI GRIFFI, Marco D’ALBERTI, Giovanni PITRUZZELLA, Antonella SCIARRONE ALIBRANDI, Massimo LUCIANI, Maria Alessandra SANDULLI, Roberto Nicola CASSINELLI, Francesco Saverio MARINI,

has pronounced the following

JUDGMENT

in the constitutional legitimacy review of Article 103, paragraph 10, subparagraph b), of Decree-Law of May 19, 2020, no. 34 (Urgent measures concerning health, support for work and the economy, as well as social policies related to the COVID-19 epidemiological emergency), converted, with amendments, into Law of July 17, 2020, no. 77, brought by the Council of State, Third Section, in the proceedings concerning M. B. versus the Ministry of the Interior, by order of May 5, 2025, registered under no. 108 of the register of ordinary orders 2025 and published in the Official Gazette of the Republic no. 24, first special series, of the year 2025, whose hearing was set for the in-chambers consultation of December 1, 2025.

Heard in the in-chambers consultation of December 2, 2025, the Reporting Judge Filippo Patroni Griffi;

Deliberated in the in-chambers consultation of December 2, 2025.

Facts Considered

1.− The Council of State, Third Section, by order of May 5, 2025, registered under no. 108 of the register of ordinary orders 2025, raised questions of constitutional legitimacy regarding Article 103, paragraph 10, subparagraph b), of Decree-Law of May 19, 2020, no. 34 (Urgent measures concerning health, support for work and the economy, as well as social policies related to the COVID-19 epidemiological emergency), converted, with amendments, into Law of July 17, 2020, no. 77, in reference to Articles 3, 11, and 117, first paragraph, of the Constitution, the latter in relation to Article 25 of the Convention implementing the Schengen Agreement of June 14, 1985, signed on June 19, 1990, ratified and enacted by Law of September 30, 1993, no. 388, and to Articles 21, 24, 27, 28, 29, and 30 of Regulation (EU) 2018/1861 of the European Parliament and of the Council of November 28, 2018, on the establishment, operation and use of the Schengen Information System (SIS) for border checks, amending the Convention implementing the Schengen Agreement and repealing Regulation (EC) No 1987/2006.

The contested provision stipulates that foreign nationals "who are recorded, including based on international agreements or conventions in force for Italy, for the purpose of non-admission into the territory of the State" are not admitted to the regularization procedures for employment relationships provided for by the same Article 103, paragraphs 1 and 2. The referring judge deems it constitutionally illegitimate "insofar as it provides for the automatic bar resulting from a Schengen alert concerning the assessment of the regularization application, precluding the administration from verifying in concreto the danger and, in any event, the existence of the requirements for granting or denying it."

1.1.− The court a quo reports that it must decide on the appeal against a judgment of the Regional Administrative Court of Campania, Salerno detached section, Second Section, which rejected the claim whereby a foreign national had contested the legitimacy of a decree issued by the Salerno Police Headquarters; a decree that had rejected the application for a residence permit filed pursuant to Article 103 of Decree-Law no. 34 of 2020, as converted. The first-instance judgment held that the Salerno Police Headquarters had legitimately based the denial measure on the "Schengen Database alert pursuant to Article 24 of the SIS II Convention": this also based on the consistent administrative jurisprudence that considers the actual barring effect of said alert to be non-reviewable.

The appellant in the proceedings a quo challenged the TAR Campania judgment, arguing, in particular, that "the alert was issued for reasons of irregular entry into the alerting State," so that it alone cannot indicate that the foreign national "constitutes a threat to public order and security or national security"; furthermore, the alert was allegedly entered by the French authorities subsequent to the submission of the application for regularization of undeclared work and the conclusion of the employment contract.

1.1.1.− The Council of State notes that it has issued several orders requesting clarifications from the Salerno Police Headquarters—which only partially complied, and in any event not satisfactorily—regarding the reasons for the inclusion of the Schengen alert barring the foreign national’s application, which were not evident from the administrative measure challenged in the first instance.

The Advocate General’s Office finally produced a note from the Ministry of the Interior, dated December 29, 2023, forwarding the aforementioned alert to the Salerno Police Headquarters. The alert was issued by the Prefecture of Dordogne and indicates as the reason for the decision the cause: "administrative return ban" (i.e., administrative re-entry ban). This confirms, observes the referring judge, the validity of the appellant’s argument, namely that "the alert—in the absence of further indications—was adopted solely because the present appellant made an irregular entry into French territory, and not also in the presence of further and more serious reasons, not indicated in the acquired document."

1.1.2.− The Council of State also reports that the challenged TAR judgment ruled out the possibility of a constitutional compliance interpretation, due to administrative jurisprudence that deems the actual barring effect of the so-called Schengen alert non-reviewable.

The court a quo concurs with this conclusion. It affirms, in fact, that the tailoring interpretation followed by the Lombardy Administrative Court, Fourth Section, judgment of May 23, 2024, no. 1584, while having "undoubtedly the merit of rationality," is in clear contrast with the literal wording, as the jurisprudence of the Council of State has otherwise highlighted.

Nor can this Court's judgment no. 86 of 2006 be invoked in favor of a constitutional compliance interpretation, as the provision then challenged differs from that in the current Article 103, paragraph 10, subparagraph b).

The referring judge also adds that the tailoring interpretation, while rational, "also entails—through the possibility of an 'atypical' review of the alert—the risk of a lack of uniformity in application."

1.2.− Having stated all the above, the Council of State deems that Article 103, paragraph 10, subparagraph b), of Decree-Law no. 34 of 2020, as converted, on which the measure challenged in the first instance was based, is unreasonable "due to its general and peremptory provision."

The regulation under the aforementioned Article 103 is, in fact, aimed at the regularization of employment relationships of foreign nationals present on the national territory and lacking a valid residence title. Therefore, far from providing for irregular entry as a barring factor, its purpose is precisely "to regularize—provided there is an employment relationship meeting the minimal conditions established therein, and in the absence of threats to public security—this status." Consequently, while the other barring hypotheses provided for by Article 103, paragraph 10, subparagraphs a), c), and d), constitute "the exercise of reasonable legislative discretion aimed at balancing competing needs and interests, as well as compliance with international agreements," that under the contested provision is not anchored "to an element of real negative value" and, moreover, triggers "an evident short-circuit between the prerequisites of the legal case and the impeding factors," as it prevents a subject who entered irregularly into a Schengen area country from obtaining regularization of their status in Italy, which is, however, the objective of the regulation in question. The noted unreasonableness would be analogous to those already challenged by this Court in judgments no. 43 of 2024 and no. 88 of 2023.

1.2.1.− The court a quo observes that the contested provision is also in conflict with Article 3 of the Constitution under the aspect of the principle of equality. In fact, it results in "the foreign national who entered irregularly directly into Italy being admitted to regularization, but not the one who arrived there by transiting through another Schengen area country (without, however, this transit having revealed aspects of contraindication other than the formal absence of a title): which, evidently, results in unequal treatment of substantially identical situations."

1.2.2.− The Council of State, to support the arguments presented so far, further observes that, if it were to be considered that mere irregular entry into the Schengen area (whether in Italy or another State) imposes upon non-alerting States the obligation not to regularize the foreign national, then the contested provision would be per se constitutionally illegitimate due to conflict with Articles 11 and 117, first paragraph, of the Constitution, because, by allowing the regularization of those who entered irregularly into Italy, it would violate the conventional obligation. However, this is not the case, as the preliminary consultation mechanism under Article 25 of the Schengen Convention allows for "a mechanism for verifying the actual reasons for the alert itself": the conventional obligations, therefore, do not imply "the absolute prohibition of regularization for any irregular entry, nor the non-reviewability of any alert," so that the "absolutist wording" of the contested Article 103, paragraph 10, subparagraph b), whose textual content does not admit interpretations in the sense of reviewability of the alert, would not find "a justifying reason."

It is no coincidence that, "aware of the importance of the regularization legislation—aimed not only at humanitarian purposes but also at protecting the country's economic system," the legislator, in the same Article 103, paragraph 10, "has [...] rigorously and exhaustively delimited the grounds which, in protection of competing and super-individual interests, oppose the granting of applications," such as, for example, "a threat to public order or State security" (subparagraph d); the contested provision, instead, looks only at the formal fact—the alert—without indicating "what underlying element of criticality it expresses." The referring judge therefore observes that, in the event of a declaration of constitutional illegitimacy of the contested provision, it is precisely the other barring grounds that allow for the verification of the existence of "possible competing factors" that have "substantial relevance."

The referring judge observes that the alleged grounds for constitutional illegitimacy could be overcome, in addition to a nullifying decision, also by an additive ruling, "which makes the regulation of the barring effect of alerts compatible with the parameters of reasonableness and proportionality, by limiting it to those cases in which it is such within the relevant regime": for example, by requiring the administration to resort to the forms of international coordination provided for by the aforementioned Article 25 of the Schengen Convention or by Article 9 of Regulation (EU) 2018/1860 of the European Parliament and of the Council of November 28, 2018, concerning the use of the Schengen Information System for the return of third-country nationals who are illegally present.

1.3.− Finally, the Council of State holds that the contested provision is also in conflict with Articles 11 and 117, first paragraph, of the Constitution.

In the judgment of the Court of Justice of the European Union, Grand Chamber, January 31, 2006, Case C-503/03, Commission of the European Communities, it was in fact stated that, "although the principle of sincere cooperation that underpins the Schengen acquis implies that the consulting Member State must duly consider the information provided by the alerting Member State, it also implies that the latter must make available to the former the supplementary information which enables it to concretely assess the importance of the threat that the alerted person may represent."

The necessary offensiveness of the reason for the limitation is now positively codified in Regulation (EU) 2018/1861 (Articles 21, 24, 27, 28, 29, and 30), which places "precise obligations in this regard on both the Member State issuing the alert and the Member States that must act concerning the alerted person."

The contested provision, "in order to overcome the generality and absoluteness of the provision," could then be considered "not unreasonable," if declared constitutionally illegitimate by an additive ruling that allows for "a widespread review of the conformity of the [alerts] with the regulatory paradigm governing them by the judge called upon to assess the legitimacy of the national administrative measures adopted based on the barring effect of the alerts themselves."

1.4.− Regarding relevance, the Council of State states that, since the appellant foreign national was not alerted "for conduct attributable to aspects of social dangerousness, but solely for illegal entry into French territory," the granting of the constitutional legitimacy questions would lead to the validity of the appeal, which would otherwise have to be rejected.

Considered in Law

2.− The Council of State, Third Section, with the order indicated in the heading (reg. ord. no. 108 of 2025), raised questions of constitutional legitimacy of Article 103, paragraph 10, subparagraph b), of Decree-Law no. 34 of 2020, as converted, "insofar as it provides for the automatic bar resulting from a Schengen alert concerning the assessment of the regularization application, precluding the administration from verifying in concreto the danger and, in any event, the existence of the requirements for granting or denying it."

The contested provision, in fact, precludes admission to the employment relationship regularization procedures, provided for by the same Article 103, paragraphs 1 and 2, for foreign nationals "who are recorded, including based on international agreements or conventions in force for Italy, for the purpose of non-admission into the territory of the State." In so doing, it would violate Article 3 of the Constitution, both under the aspect of reasonableness and equality, as well as Articles 11 and 117, first paragraph, of the Constitution, because it conflicts with Article 25 of the Schengen Convention and with Articles 21, 24, 27, 28, 29, and 30 of Regulation (EU) 2018/1861.

3.− Preliminarily, it must be noted that the fact that the court a quo complains of a conflict between the contested provision and Regulation (EU) 2018/1861 does not affect the admissibility of the questions.

The alleged violation of the principles of reasonableness and equality, in fact, makes the existence of their "constitutional tone" undoubted, which this Court constantly requires in order to examine legislative provisions that appear to conflict both with the Constitution and with European Union law, which might permit their non-application by ordinary judges (judgments no. 1 of 2026, no. 147, no. 93, no. 31, and no. 7 of 2025, no. 181 of 2024; order no. 21 of 2025).

Moreover, as has already been emphasized, a declaration of constitutional illegitimacy would not only "offer a surplus of guarantee to the primacy of European Union law" (judgment no. 15 of 2024), because it removes from the Italian legal system the norms that are assumed to conflict with that law, but also, "precisely because it transcends the specific case from which it originated, it effectively safeguards legal certainty, a value of certain constitutional relevance (judgment no. 146 of 2024, paragraph 8 of the Considered in Law), for which individual judges and this Court are equally guarantors" (judgment no. 181 of 2024).

4.− The complaints alleging the violation of Article 3 of the Constitution, both under the aspect of reasonableness and equality, are well-founded.

4.1.− The inspiring rationale of the entire Article 103 of Decree-Law no. 34 of 2020, as converted, is to allow, within procedures aimed at regularizing undeclared employment relationships in specific sectors of activity, the regularization also of the status of the foreign national who is indeed already present on national territory but without a legal title to stay.

In this context, the Council of State is correct in noting, first of all, the unreasonableness of Article 103, paragraph 10, subparagraph b). This provision—insofar as it does not admit to the regularization procedures, provided for by paragraphs 1 and 2 of the same Article 103, foreign nationals who are recorded in the Schengen Information System (SIS) for not having complied with national regulations on entry and stay—frustrates the objective of the discipline introduced by the legislator, which, as stated, is precisely to regularize the position of foreign nationals present on national territory but lacking a legal title to stay. In other words, the contested norm precludes foreign nationals alerted in the SIS for not having complied with national regulations on entry and stay from participating in procedures intended to allow foreign nationals present on national territory without a legal title to regularize their status: the contradiction between the rationale of the overall discipline and the contested Article 103, paragraph 10, subparagraph b) is therefore manifest.

The same norm, as the referring judge also notes, also conflicts with the principle of equality, as it results in different treatment for substantially identical situations. If, in fact, it precludes access to regularization procedures for foreign nationals who, present on national territory without a legal title to stay, had entered or stayed irregularly in another Schengen area country and for this reason were alerted in the SIS, it allows access to the same procedures for foreign nationals who, similarly present on national territory without a legal title to stay, entered directly into Italy.

5.− The supranational legislation governing the so-called Schengen alert, which, according to the prevailing orientation of administrative jurisprudence, always and in any case binds non-alerting States, preventing them from issuing or extending a residence title, does not lead to different conclusions. This interpretation of the reference legislation cannot, in fact, be shared.

5.1.− The Schengen Agreement of 1985—to which Italy acceded upon the Convention implementing that Agreement in 1990, subsequently ratified by Law no. 388 of 1993—has as its objective the gradual elimination of checks at common borders concerning the movement of nationals of the Member States of the (then) European Communities.

Among the measures provided for by the Convention to achieve this goal is the Schengen Information System, which, through the information transmitted therein, aims to "preserve public order and national security, including State security, and ensure the application, in the territory of the Contracting Parties, of the provisions on the movement of persons established in this Convention" (Article 93).

The subsequent Article 96 specifically regulates the cases in which a foreign national may be alerted for the purpose of non-admission to the Schengen area, establishing that such a decision may be based "on the circumstance that the presence of a foreign national in the national territory constitutes a threat to public order and national security" (paragraph 2) or—and this is what is most relevant here—"on the fact that the foreign national has been the subject of a measure of removal, refusal of entry or expulsion that has not been revoked or suspended and which entails or is accompanied by a ban on entry or possibly residence, based on non-compliance with national regulations on the entry and stay of foreigners" (paragraph 3).

The Schengen alert, precisely because of the function for which it was established, is, according to the same Convention, a bar to entry into the territory of the Schengen area States (Article 5, paragraph 1, subparagraph d) and "in principle" (Article 15) a bar to the issuance of visas.

5.2.− However, the same Convention already provided for a mechanism designed to verify that the alert was, in practice, consistent with the purposes for which Article 93 provided for it, thereby excluding its binding nature.

Article 25, paragraph 1, of the Convention, in fact, allowed, following consultation between the signatory States, for the granting of a residence title to an alerted foreign national for the purpose of non-admission, "for serious reasons, particularly humanitarian ones or as a result of international obligations"; at the same time, the subsequent paragraph 2 provided that, in the event of the issuance of the residence title, the alerting State would proceed to its withdrawal, unless the possibility of recording the foreign national in its own list of alerted persons.

In this context, the Court of Justice of the European Union had therefore affirmed that, "although the principle of sincere cooperation that underpins the Schengen acquis implies that the consulting Member State must duly consider the information provided by the alerting Member State," the contracting States are obliged to verify, before refusing to issue a residence title, whether the presence of the alerted foreign national constitutes an effective, current, and sufficiently serious threat to a fundamental interest of the community (CJEU, judgment Commission of the European Communities, Case C-503/03).

5.3.− The recent evolution of supranational legislation points even more strongly towards imposing an assessment in concreto of the relevance of the Schengen alert concerning the issuance or extension of a residence title.

Regulation (EU) 2018/1861, which significantly impacted the regulation of the SIS, provided, first of all, that "Before entering an alert and when extending the validity period of an alert, the Member State verifies whether the adequacy, relevance, and necessity of the case justify the alert in the SIS" (Article 21, paragraph 1).

After affirming that a foreign national, "in light of an individual assessment also including an assessment of personal circumstances [...] and the consequences of a removal and refusal of stay" (Article 24, paragraph 1, letter a), may be considered a threat to public order and security even when "he has evaded or attempted to evade Union or national law governing entry and stay in the territory of the Member States" (Article 24, paragraph 2, letter c), the regulation profoundly re-regulates the mechanism of prior consultation, simultaneously suppressing the aforementioned Article 25 of the Schengen Convention (Article 64).

Article 27, which is the most relevant here, in fact provides that:

"Where a Member State is examining the possibility of issuing or extending a residence permit or a long-stay visa to a third-country national who is the subject of an alert for the purpose of refusal of entry and refusal of stay issued by another Member State, the Member States concerned shall consult each other by exchanging supplementary information, in accordance with the following provisions:

a) the issuing Member State shall consult the alerting Member State before issuing or extending the residence permit or long-stay visa;

b) the alerting Member State shall reply to the consultation request within ten calendar days;

c) the absence of a reply within the time limit referred to in point (b) shall imply that the alerting Member State does not object to the issuance or extension of the residence permit or long-stay visa;

d) when adopting the relevant decision, the issuing Member State shall take into account the reasons underlying the decision of the alerting Member State and shall consider, in accordance with national legislation, any threat to public order or security that the presence of the third-country national concerned may pose in the territory of the Member States;

e) the issuing Member State shall communicate its decision to the alerting Member State; and

f) if the issuing Member State communicates to the alerting Member State its intention or its decision to issue or extend the residence permit or long-stay visa, the alerting Member State shall withdraw the alert for the purposes of refusal of entry and refusal of stay.

The final decision to issue a residence permit or long-stay visa to a third-country national rests with the issuing Member State."

It thus appears that the Schengen alert not only does not preclude non-alerting States from issuing or extending a residence title, but, on the contrary, imposes on them an individual assessment of the foreign national's situation, who may be issued or have their residence title extended, despite the alert, whenever they are not considered, in practice, a threat to public order or public security.

6.− In light of all the considerations set forth, the unconstitutionality of Article 103, paragraph 10, subparagraph b), of Decree-Law no. 34 of 2020, as converted, must be declared, due to conflict with Article 3 of the Constitution, insofar as it does not admit to the regularization procedures, provided for by paragraphs 1 and 2 of the same Article 103, foreign nationals who are recorded in the Schengen Information System solely for not having complied with national regulations on entry and stay.

The questions of constitutional legitimacy raised in reference to Articles 11 and 117, first paragraph, of the Constitution remain absorbed.

for these reasons

THE CONSTITUTIONAL COURT

declares the constitutional illegitimacy of Article 103, paragraph 10, subparagraph b), of Decree-Law of May 19, 2020, no. 34 (Urgent measures concerning health, support for work and the economy, as well as social policies related to the COVID-19 epidemiological emergency), converted, with amendments, into Law of July 17, 2020, no. 77, insofar as it does not admit to the regularization procedures, provided for by paragraphs 1 and 2 of the same Article 103, foreign nationals who are recorded in the Schengen Information System solely for not having complied with national regulations on entry and stay.

Decided in Rome, at the seat of the Constitutional Court, Palazzo della Consulta, on December 2, 2025.

Signed:

Giovanni AMOROSO, President

Filippo PATRONI GRIFFI, Rapporteur

Roberto MILANA, Director of the Chancellery

Filed in the Chancellery on January 22, 2026

The anonymized version conforms, in text, to the original