Interim decree (Article 35-ter(4) of Legislative Decree 25/2008) · N.R.G. 36532-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The determination by which the President of the Commissione territoriale applies the accelerated border procedure presupposes an assessment of the application under Article 42 of Regulation (EU) 2024/1348 and Article 28 of Legislative Decree 25/2008: if the determination is adopted before the C3 form is completed, that is, before the applicant’s allegations have been collected, the authority considered the conditions of the procedure to be met without assessing the application, on the basis of the screening alone, and the defect vitiates the choice of procedure. The “apprehension in connection with the irregular crossing of the external border” of Article 43(1), point (b), of Regulation (EU) 2024/1348 requires a close temporal and spatial link with the crossing; a determination that repeats the wording of the provision, where the file does not show where the applicant was apprehended, does not demonstrate that the condition is met. Once the border procedure is disapplied, the procedure changes from Article 35-ter to Article 35-bis of Legislative Decree 25/2008 and the contested decision is automatically suspended.
The Tribunale di Milano (judge Elena Masetti Zannini) finds that the conditions for the accelerated border procedure applied to a Tunisian applicant are not met, converts the procedure from Article 35-ter to Article 35-bis of Legislative Decree 25/2008 and declares automatically suspended the rejection for manifest unfoundedness issued by the Commissione territoriale of Milan on 1 September 2026. The decree, issued the day after Trib. Milano 36319-1/2026, takes up its argument on the apprehension but adds a defect of its own, concerning the sequence of the acts.
The applicant expressed the wish to apply at the screening on 2 August 2026 and registered the application at the Questura of Cagliari on 6 August; on 27 August he was transferred to the CAS Mancini among the migrants “pre-channelled into the PAF”. The determination of the President of the Commissione is dated 28 August, the C3 form was completed in Milan on 31 August.
For the Tribunale, Article 28 of Legislative Decree 25/2008 must be read together with Article 42 of Regulation (EU) 2024/1348: the choice of the accelerated procedure requires an assessment of the application. For that reason the C3 “temporally precedes the determination”, which decides the procedure “having assessed the elements that emerged when the primary information was collected”; the national rules set out the preliminary phase in Articles 26-bis and 26-ter of Legislative Decree 25/2008. Here the authority applied the border procedure “without assessing the asylum application”, and the conditions cannot be based “solely on the screening”.
On the second point the decree refers to recital 57 of Regulation (EU) 2024/1348 and to the “close temporal and spatial link” required by the Court of Justice (C-47/15, Affum, paragraph 72; Grand Chamber, 19 March 2019, Arib, paragraph 46). The determination repeats the wording of the provision; the screening form of the Questura of Cagliari gives “Monastir” as the place of notification (5 August 2026), and the file does not show whether the applicant was rescued at sea, apprehended at Monastir or had already been on the territory for some time.
With the derogation of Article 68(3), point (a)(ii), of Regulation (EU) 2024/1348 no longer available, the automatic suspension provided for by Article 35-bis(3) of Legislative Decree 25/2008 revives for the whole duration of the proceedings.
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