Interim decree (Article 35-bis(3) of Legislative Decree 25/2008) · N.R.G. 15588/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The accelerated border procedure cannot be applied on the sole ground of a recognition rate equal to or below 20%: Article 42(1), point (j), of Regulation (EU) 2024/1348 requires it to be excluded where the situation in the third country has changed significantly or where the applicant belongs to a category of persons for whom the percentage is not representative. The statistical figure has merely indicative value and the individual assessment must precede the classification of the application, since the curtailment of the applicant's procedural guarantees follows from that classification. Where the President's determination and the decision rejecting the application as manifestly unfounded under Article 39(4) of Regulation (EU) 2024/1348 go no further than a reference to the Eurostat figure, the border procedure cannot be regarded as validly initiated and does not produce the derogating effects of that procedure: the omission is not a mere formal irregularity, it excludes Article 35-ter of Legislative Decree 25/2008 and the cases of Article 68(3) of Regulation (EU) 2024/1348, and entails the application of Article 35-bis of Legislative Decree 25/2008. Recalling judgment no. 11399/2024 of the Joint Chambers (Sezioni Unite), the principle extends from breaches of time limits to breaches of procedural guarantees: the decision is automatically suspended and the applicant is entitled to remain in the territory for the duration of the proceedings.
The Tribunal of Bologna (judge Stefania Cannavale) treats the request for suspensive effect as a request for a finding of the right to remain, declares Article 35-bis of Legislative Decree 25/2008 applicable instead of Article 35-ter of Legislative Decree 25/2008 and finds that the contested decision is automatically suspended by the appeal. The Commissione territoriale of Bologna had rejected the application as manifestly unfounded under Article 39(4) of Regulation (EU) 2024/1348, considering that the case fell under Article 42(1), point (j), of Regulation (EU) 2024/1348. According to information provided by the defence and not ascertainable from the text of the decree, the applicant is an Algerian national who landed in Cagliari and was transferred to the border procedure centre in Bologna (former Gamberini barracks).
The regularity of the procedure is reviewed of the court's own motion; the Administration filed no observations. The Tribunal finds that the reference to point (j) in the President's determination “remains merely assertive and is confined to the reference to the Eurostat statistical figure”, and that the rejection decision is reasoned in the same way. The authority must state in concrete terms why the applicant does not belong to categories exposed to specific risks and why the percentage is significant in the case at hand, engaging with the elements already on file.
Absent that assessment, the border procedure “cannot be regarded as validly initiated”: the non-automatic nature of suspension, the shortened time frame of the proceedings and the finding of manifest unfoundedness under Article 28-ter of Legislative Decree 25/2008 all fall away. The decree excludes the cases of Article 68(3) of Regulation (EU) 2024/1348 and, recalling judgment no. 11399/2024 of the Joint Chambers (Sezioni Unite) of the Court of Cassation, extends the principle from breaches of time limits to breaches of procedural guarantees.
The reasoning follows that of Tribunal of Palermo 9739/2026, including the reference to Article 42(3), point (e), of Regulation (EU) 2024/1348, which concerns unaccompanied minors: for an adult applicant the relevant condition is Article 42(1), point (j), alone. On the same threshold in the border procedure, see Tribunal of Venice 13498/2026 and Tribunal of Venice 13922/2026; taking a narrower view where the Commissione gives several concurrent grounds, Tribunal of Florence 11088/2026. The decree examines no other issues; according to the defence, the appeal also alleged breaches of the information obligations and of free legal counselling.
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