Interim decree (Article 35-bis(4) and (4-bis) of Legislative Decree 25/2008) · R.G. 14053/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
In the accelerated border procedure under Article 42(1), point (j), of Regulation (EU) 2024/1348, the determining authority must comply with the fundamental principles and guarantees of Chapter II of the Regulation, in particular the obligation to inform the applicant, in good time and in a language he or she understands, of the rights and obligations laid down in the Regulation (Article 8(2) of Regulation (EU) 2024/1348, read in the light of recital 31). Where the Territorial Commission fails to document in the proceedings that it has complied with those obligations, under Article 35-bis(4) of Legislative Decree 25/2008 as amended, the breach of the duty to inform prevents the applicant from exercising his or her rights adequately, knowingly and in good time — including the right to legal counselling — and from discharging the duty to cooperate under Article 9 of Regulation (EU) 2024/1348: that ground disposes of every other issue, as the most readily determinable ground (ragione più liquida), and the applicant must be authorised to remain for the entire duration of the proceedings.
The Tribunal of Bologna (judge Dr Caterina Arcani) authorises the applicant to remain for the entire duration of the proceedings. The Territorial Commission of Cagliari had rejected the application as manifestly unfounded under Article 39 of Regulation (EU) 2024/1348, by reason of Article 42(1), point (j), applying the accelerated procedure.
The decree bases its review on the twofold architecture of Article 42(1) of Regulation (EU) 2024/1348 — which preserves "the basic principles and guarantees set out in Chapter II of this Regulation" — and of Article 8(2) of the same Regulation, which requires information to be given "in a language which they understand or are reasonably supposed to understand" on the time frame and stages of the procedure, on rights (including free legal counselling) and on obligations, including the duty to cooperate under Article 9 of Regulation (EU) 2024/1348. Recital 31 specifies that the information must be both written and, where necessary, oral, and that it must be timely.
Article 35-bis(4) of Legislative Decree 25/2008, as amended by Decree-Law 100/2026, requires the judge ruling on the authorisation to remain to "examine the facts and points of law set out by the applicant in the request". Faced with the defence's objection, the Commission "did not document in these proceedings that it had complied with the obligations". The breach, the Tribunal observes, "did not allow the applicant for protection to exercise the rights laid down in the EU regulation adequately, knowingly and in good time", nor to discharge the duty to cooperate: it is a "ground that disposes of every other issue by virtue of the most readily determinable ground".
The decision belongs to the line of case law, already traced in Trieste and Bologna, that treats the duty to inform as a substantive, and not merely formal, safeguard of the border procedure. The "most readily determinable ground" makes it possible to authorise the applicant to remain without entering into the questions on the 20% threshold — on which see Trib. Bologna 15588/2026 — or into the comparison between the former and the new rules.
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