Interim decree (Article 35-bis of Legislative Decree 25/2008) · N.R.G. 17179-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The reference in Article 79 of Regulation (EU) 2024/1348 to applications "lodged" from 12 June 2026 must be interpreted in conformity with the general definition of application in Article 3(1), point 12: the transitional rules do not apply to applications that already arose with an expression of the wish prior to 12 June 2026, even though the lodging took place afterwards. Attributing exclusive relevance to lodging would allow the Administration, by deferring that activity, to affect unilaterally the applicable legal regime. Once the former rules are applied, the use of the accelerated procedure is unlawful and the appeal automatically produces suspensive effect.
The Tribunale di Napoli (judge Dr Mario Suriano) raised of its own motion the question of the intertemporal regime and declared the contested decision suspended ex lege by reason of the bringing of the appeal. The proceedings concerned the refusal as manifestly unfounded adopted by the Commissione territoriale of Caserta pursuant to Article 28-ter of Legislative Decree 25/2008 and Article 39(4) of Regulation (EU) 2024/1348; the appellant's grounds are declared absorbed, because upstream there is a question "of law derivable from the records and logically preliminary".
Article 79 of Regulation (EU) 2024/1348 refers the new regime to applications lodged from 12 June 2026, but "does not expressly govern the hypothesis […] in which the wish to apply for protection was expressed before 12 June 2026 and the lodging took place only afterwards".
The reasoning rests on Article 3(1), point 12, which defines the "application for international protection" as the expression of the wish to apply for protection: the provision "attributes autonomous legal relevance to the expression of the wish, identifying that moment as the birth of the application, while the subsequent lodging constitutes a distinct procedural stage". The decisive step is functional:
"This normative silence cannot be interpreted as attributing exclusive relevance to the moment of lodging, since such a reading would allow the Administration, through the mere deferral of the lodging activity, to affect unilaterally the identification of the applicable legal regime, to the detriment of the principles of legal certainty, protection of legitimate expectations, equal treatment and effectiveness of judicial protection".
A systemic argument is added: giving exclusive weight to lodging would neutralise the definition of Article 3 of Regulation (EU) 2024/1348, "intended to operate for the entire Regulation", precisely with regard to the transitional rules, "without the European legislature having expressed a derogating intention in unequivocal terms". Confirmation is drawn from Article 17 of Decree-Law 100/2026, which "maintains the application of the former rules to applications previously made, confirming the relevance of the genetic moment of the application".
In the case at hand it emerged from documents, from a certified e-mail (PEC) produced in the proceedings, that the wish had been expressed on 15 December 2025 and the lodging had taken place only on 25 June 2026.
Once the former rules are applied, the use of the accelerated procedure is unlawful and "brings the procedure back within the ordinary rules, with the consequent automatic production, by operation of law, of the suspensive effect deriving from the bringing of the judicial appeal". The decree does not grant discretionary suspensive effect: it finds that suspension operates ex lege.
In the same sense Trib. Bologna, 12 August 2026; for the opposite position on the literal wording of Article 79, Trib. Firenze, 24 August 2026; for the reverse case — former rules applied to an application lodged after 12 June — Trib. Torino, 11 August 2026.
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