Interim decree (Article 35-ter(2) of Legislative Decree 25/2008) · R.G. 13481-1/2026
Wording of the operative part: «dichiara che la tempestiva proposizione del ricorso determina la sospensione automatica dell'efficacia esecutiva del provvedimento impugnato»
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The mandatory nature of the border procedure under Article 45(1) of Regulation (EU) 2024/1348 presupposes the concurrent existence of one of the situations referred to in Article 42(1) — here point (j) — and persists only to the extent that its conditions are met; where, in the course of the examination, the requirement of origin from a country with a recognition rate below 20% has ceased to be met (owing to the publication of new Eurostat data), the determining authority cannot maintain the special procedure without reassessing whether it remains justified. The incorrect opening of the special procedure entails the inapplicability of the derogation from the automatic right to remain. The breach of the preliminary duty to inform the applicant of the right to free legal counselling — under Articles 8 and 15 of Regulation (EU) 2024/1348 — which must be discharged in a general and preventive manner at the latest by the time the application is registered, is “a ground of challenge that absorbs every other issue by virtue of the more readily determinable ground”.
The Tribunale di Firenze (judge Dr. Francesco Manfredi) declares that the timely lodging of the appeal results in the automatic suspension of the enforceability of the decision of manifest unfoundedness and in the appellant's right to remain until the decision is given, under the ordinary rules.
The case had been opened as an accelerated border procedure under Articles 43(1) and 45(1) of Regulation (EU) 2024/1348, applying Article 42(1), point (j). The Tribunal notes that origin from a country with a recognition rate below 20% had ceased to apply in the course of the procedure itself, owing to the publication of new Eurostat data: “the determining authority could not maintain the special procedure without reassessing whether its conditions remained met in the light of the elements subsequently acquired”. Disembarkation following a SAR operation falls within Article 43, but “considered in isolation” it does not make the border procedure mandatory: mandatory application presupposes the concurrent existence of one of the situations referred to in Article 42(1). Once the condition fell away, the application had to be returned to the ordinary procedure, with automatic suspension upon appeal.
The decree gives particular attention to the breach of the preliminary duty to inform about free legal counselling, characterised as “a ground of challenge that absorbs every other issue by virtue of the more readily determinable ground”. Under Article 8(2) of Regulation (EU) 2024/1348 — referred to in recitals 28 and 31 — the applicant must be informed “as soon as possible and at the latest by the time of registration” (Article 15(2)) of the right to legal counselling for lodging the application and to assistance and representation in the subsequent stages. The duty is “general” in that it “applies irrespective of the type of procedure”, “timely and preventive” in relation to registration, and instrumental to the effective exercise of the applicant's rights.
In the present case only the screening form (in Bangla) was handed over, with the information required by Article 11 of Regulation (EU) 2024/1356 and on Eurodac, whereas the file discloses no preliminary information on legal counselling, assistance and representation: the fact that such services are provided “on request” does not remove the State's duty to inform in advance. The defect vitiates the border procedure in any event, since a general condition laid down to safeguard the applicant's awareness from the very first contact is missing.
The decree is to be read alongside Trib. Firenze 12067/2026 on the duty to inform as between screening and procedures, and Trib. Catania 11066/2026 on the return to the ordinary procedure for lack of procedural guarantees.
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