Interim decree (Article 35-bis(4) of Legislative Decree 25/2008) · N.R.G. 31896-1/2026
Wording of the operative part: «accoglie l'istanza cautelare e sospende l'efficacia esecutiva»
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
For the purposes of intertemporal law under Article 79(3) of Regulation (EU) 2024/1348 and Article 17(4) of Decree-Law 100/2026, the expression “applications lodged” does not refer exclusively to the typical moment of lodging under Article 28 of that Regulation, but must be read in the light of Article 26(1) (application “made” by the expression of the wish to apply), of recital 27 (the expression of the wish activates the Common European Asylum System) and of Article 17(4) of Decree-Law 100/2026 (application “submitted”): delay, or a non-physiological lapse of time, between the expression of the wish and lodging — an activity of the Administration outside the applicant's control — cannot be held against the person concerned in malam partem, in observance of the principles of legal certainty, protection of legitimate expectations and good administration. Where the expression of the wish precedes 12 June 2026, the applicable rules, including as regards procedure, are the former ones; the date of the expression of the wish is proved by the record of withdrawal of the passport drawn up by the Questura. In application of the former regime and of the CJEU judgment of 4 October 2024, C-406/22 [CV] (given continuity by the Grand Chamber, 1 August 2025, C-758/24 and C-759/24, Alace and Canpelli), Article 2-bis(1) of Legislative Decree 25/2008 is to be disapplied in so far as it designates Egypt as a safe country of origin, with the ordinary procedure regaining its place and suspension by operation of law of the contested measure.
The Tribunal of Milan (judge Francesca Minieri) holds that the legislation preceding Decree-Law 100/2026 applies to the present case and grants the interim request, suspending the enforceability of the manifest-unfoundedness measure issued by the Commissione territoriale of Milan. The appellant, an Egyptian national, had expressed the wish to make an application on 17 February 2026 (passport withdrawal record, doc. 5 of the appeal), but the Questura had arranged for its lodging only on 22 June 2026, ten days after the entry into force of Decree-Law 100/2026. The Commission had followed the accelerated procedure under Article 42(1), points (e) and (j), of Regulation (EU) 2024/1348 and declared the application manifestly unfounded on 1 July 2026.
Article 79(3) of Regulation (EU) 2024/1348 refers to “applications lodged” from 12 June 2026; Article 17(4) of Decree-Law 100/2026 speaks of applications “submitted”. The Tribunal reads the literal wording in the light of Article 26(1) of the Regulation — the application “shall be deemed to have been made when the third-country national expresses in person the wish to receive protection” — and of recital 27, according to which the expression of the wish “constitutes the first act that activates the application of the Common European Asylum System”. It follows from the combined provisions that the “delay” between the expression of the wish and lodging, attributable to the organisation of the Questure and “outside the control” of the applicant, cannot be held against him in malam partem: a different reading would turn the literal criterion into “a substantive violation of the principles of legal certainty, protection of legitimate expectations and good administration”. For the purposes of intertemporal law alone, the expression “lodging” is to be understood as including the moment of the expression of the wish.
The expression of the wish on 17 February 2026 is attested, with “certain date”, by the record of withdrawal of the passport drawn up by the Questura: the Commissione territoriale did not file defence notes within the time limit of Article 35-bis(4), and the burden of documenting a correctly initiated accelerated procedure lies with the determining authority.
With the rules preceding Decree-Law 100/2026 applied, the principle of the Joint Chambers (Sezioni Unite) no. 11399/2024 comes into play: the non-automaticity of the suspensive effect operates only if the accelerated procedure was correctly adopted. The CJEU judgment of 4 October 2024, C-406/22 [CV] — with the continuity given by the Grand Chamber of 1 August 2025, joined cases C-758/24 and C-759/24 [Alace and Canpelli] — requires the designation of a country as safe to be disapplied where certain parts of the territory or certain categories of persons do not satisfy the substantive conditions of Annex I to Directive 2013/32. In the light of the MAECI country sheet of 2024 and of the ministerial report of 1 April 2025 — which record in Egypt the continued application of the death penalty, the weight of criticism for human rights violations and the repression of political dissent — the Tribunal disapplies Article 2-bis(1) of Legislative Decree 25/2008 in so far as it designates Egypt, with the consequent reinstatement of the ordinary procedure and suspension ex lege of the contested act.
The decree forms part of the line of transitional regime case law and is in continuity with the reading of Trib. Bologna 13590 (Baraldi) and Trib. Trieste 3940 (D'Alessio): the “expression of the wish” is the act that activates the Common European Asylum System and anchors the applicable rules.
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