Interim decree (Article 35-bis(4) of Legislative Decree 25/2008) · R.G. 17608/2026
Wording of the operative part: «Accerta che la proposizione del ricorso ha sospeso l'efficacia del diniego impugnato»
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The conflict between Article 79(3) of Regulation (EU) 2024/1348 — which, for identifying the applicable rules, gives weight to the “lodging” of the application — and Article 17(4) of Decree-Law 100/2026 — which ties the applicable rules to the “making” of the application — is to be reconciled by holding that the “making” referred to in the domestic transitional provision coincides with the expression of the wish to apply, the first phase of the administrative procedure. To give weight solely to lodging in order to activate the accelerated procedure under Article 42(1), point (j), of Regulation (EU) 2024/1348, despite a much earlier and documented expression of the wish to apply, constitutes a procedural irregularity and breaches the applicant's legitimate expectations; it follows that the derogation from automatic suspension does not operate and that the right to remain is to be declared — with a ruling that there is no need to decide on the interim request — pursuant to Article 35-bis(3) of Legislative Decree 25/2008.
The Tribunale di Torino (judge Dr. Maria Luciana Cristina Dughetti) finds that the contested refusal has been automatically suspended, rules that there is no need to decide on the interim request and declares the appellant's right to remain in the national territory for the duration of the proceedings. The Commissione territoriale had applied Regulation (EU) 2024/1348, reasoning on the basis of the date of lodging (30 July 2026) and following the accelerated procedure under Article 42(1), point (j).
The decree notes an “evident discrepancy” between Article 79(3) of Regulation (EU) 2024/1348 — which, for identifying the applicable rules, gives weight to the “lodging” of the application — and Article 17(4) of Decree-Law 100/2026 — which, for the same purposes, provides for the continued application of the former rules to procedures initiated “following the making of the application for international protection before 12 June 2026”. “Lodging” evokes a specific procedural phase, preceded by the expression of the wish to apply and by registration; “making”, which is broader in scope, must be read as the expression of the wish to apply.
The conflict is to be resolved without disapplying the Regulation's provisions but while safeguarding the principle of legitimate expectations: the applicant must not “be exposed to the detrimental consequences of the Administration's delays” and is entitled to rely on the time sequence of the administrative procedure in force when she expressed her wish to apply (Articles 26 et seq. of Legislative Decree 25/2008). In this case, the applicant had expressed her wish to apply much earlier — documented on 3 March 2026, having applied in good time to the competent offices to have her request forwarded to the Questura — whereas lodging took place on 30 July 2026: more than four months later. To give weight solely to lodging, disregarding the “much earlier and documented” expression of the wish to apply, constitutes a “procedural irregularity” and a breach of the applicant's rights.
The invalid initiation of the accelerated procedure means that the derogation from the suspensive effect of the appeal does not operate: the ordinary regime under Article 35-bis(3) of Legislative Decree 25/2008 applies.
The decree aligns with the intertemporal line of case law that gives weight to the expression of the wish to apply, even if informal — Cass. 14851/2026, referred to in the transitional-regime entries — and is to be read alongside Trib. Milano 31896/2026 and Trib. Bologna 15360/2026.
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