Interim decree (Article 35-bis(3), (4) and (5) of Legislative Decree 25/2008) · N.R.G. 13590-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
For the purposes of the transitional rules of Article 17(4) of Decree-Law 100/2026, an application must be regarded as "made" before 12 June 2026 where, before that date, the applicant expressed the wish to apply for protection and the subsequent lodging took place beyond the time limits laid down by the former rules for a reason not attributable to him or her but traceable to the administration. The term "making" in paragraph 4 is not a synonym of "lodging", used in paragraph 2 of the same provision. Placement in reception is a significant documentary element of the expression of the wish having already occurred, since under Article 2 of Legislative Decree 142/2015 the status of applicant arose from the mere expression of the wish. The solution neither disapplies nor derogates from Article 79(3) of Regulation (EU) 2024/1348: it concerns the identification, under the national transitional rules, of the moment at which the application is deemed to have been made. Once the former rules are applied, the overrunning of the time limits both in the stage preceding lodging and in the one following it makes the accelerated procedure an ordinary one (SS.UU. no. 11399/2024), with automatic suspension of enforceability and the restoration of the thirty-day time limit for appeal.
The Tribunale di Bologna (judge Dr Angela Baraldi) declared automatically suspended the refusal issued by the Commissione territoriale of Bologna — Forlì-Cesena Section. The facts come down to three dates: expression of the wish to apply — that is, entry into reception — on 18 May 2026, C3 on 24 June, decision of the Commissione on 27 July, taken applying Regulation (EU) 2024/1348 and declaring the application manifestly unfounded under Article 39(4).
The pivot is a comparison internal to the Italian transitional provision: paragraph 2 governs the moment at which the application is to be considered lodged, whereas paragraph 4 makes the preservation of the former rules conditional on the application having been made before 12 June 2026. The use of two different words in the same provision rules out that they are synonyms. Hence the rule:
for the purposes of the transitional rules referred to in Article 17(4) of Decree-Law 100/2026, the application must be regarded as made before 12 June 2026 where, before that date, the applicant expressed the wish to apply for international protection and the subsequent lodging took place late for a reason not attributable to him or her, but traceable to the failure to comply in good time with the obligations incumbent on the administration.
The condition delimits the argument: the expression of the wish does not always prevail, but only where the lodging exceeded the time limits of the former rules — three working days, six for border procedures, extendable by ten in the case of a large number of applications, a circumstance that must be made explicit. If the lodging took place within the time limits, the argument is not available.
The decree expressly rules out derogating from the Regulation: the conclusion "does not amount to a disapplication of or a derogation from Article 79(3) […]; it concerns, rather, the identification, under the national transitional rules, of the moment at which the application is to be considered made". The two provisions operate on distinct levels: Article 79 identifies when the Regulation applies, Article 17 of Decree-Law 100/2026 which proceedings remain under the former regime. In support, reference is made to Court of Justice, 30 June 2022, C-72/22 PPU, on the principle of effectiveness of access to the procedure.
Placement in reception "constitutes a significant documentary element of the expression of the wish having already occurred […], given that, under Article 2 of the same decree, the status of applicant arose also from the expression of the wish to apply for protection" (Article 2(1)(a) of Legislative Decree 142/2015). As regards evidence, therefore, the prefectural notice of placement in the CAS and the accommodation statement of the managing body are relevant.
Once the former rules are applied, Cass., Sez. Un., no. 11399/2024 operates: the derogation from automatic suspension presupposes that the accelerated procedure was strictly observed in all its stages, not only in the nine days between transmission of the application and the decision but also in the stage preceding lodging. In the case at hand it is irregular in both, with the consequence that the procedure is ordinary in nature, automatic suspension ex lege and restoration of the thirty-day time limit for appeal. On this point the decree departs from Perugia, for which "compliance with the overall time limit of 9 days" suffices; on this line see also Naples, Bologna, 12 August and Florence.
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