Interim decree (Article 35-bis(4), first sentence, of Legislative Decree 25/2008) · R.G. 3940/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
For the purposes of the transitional rules of Article 17(4) of Decree-Law 100/2026, the term “presentation” must be interpreted in conformity with the European concept of “lodging” in Article 28 of Regulation (EU) 2024/1348, so as to avoid a conflict between domestic and Union law: the relevant date therefore coincides with that on which the Questura drew up the C3 form. If lodging occurred after 12 June 2026, the applicable procedure is that of Article 35-bis of Legislative Decree 25/2008 as worded following Decree-Law 100/2026. It follows that the exception to the suspensive effect of the appeal, provided for by paragraph 3 of that article for the cases of Article 68(3) of Regulation (EU) 2024/1348, operates only where the Commissione actually applied the accelerated procedure of Article 42(1) or (3): where, on the contrary, the Commissione applied the former procedure and declared manifest unfoundedness under Article 32(1), point (b-bis), of Legislative Decree 25/2008, the general rule of automatic suspension of the effect of the contested decision for the entire duration of the proceedings returns.
The Tribunale di Trieste (judge Andrea D’Alessio) declared automatically suspended the decision by which the Commissione territoriale of Trieste, on 25 June 2026, had rejected as manifestly unfounded under Article 32(1), point (b-bis), of Legislative Decree 25/2008 an application made by a national and lodged on 22 June at the Questura of Gorizia. The decree is significant because it holds together two steps that the Bologna line keeps separate.
On Article 17(4) of Decree-Law 100/2026 the Tribunale takes the opposite position to Trib. Bologna 13590 of 4 September: the term “presentation” must be interpreted “as corresponding to the concept of ‘lodging’ proper to European law, so as to avoid a conflict between domestic and European rules”. Lodging, within the meaning of Article 28 of Regulation (EU) 2024/1348, is a step distinct from and subsequent to the expression of the wish (Article 26) and to registration (Article 27); in the present case it coincides with the drawing up of the C3 form, “that is, 22/6/2026”. Lodging after 12 June entails application of the new procedure of Article 35-bis of Legislative Decree 25/2008 as rewritten by Decree-Law 100/2026.
The decisive step is the following. The new Article 35-bis(3) derogates from the rule of the automatic suspensive effect of the appeal in the cases provided for by Article 68(3) of Regulation (EU) 2024/1348 — which requires, among other things, that “at the time of the decision” the Commissione had subjected the applicant to accelerated examination under Article 42(1) or (3). But in the present case the Commissione relied on the former rules (Article 32(1), point (b-bis), of Legislative Decree 25/2008) and not on the European accelerated procedure: since the procedure referred to by the provision of the Regulation was not applied, the exception does not apply and the general rule of automatic suspension for the entire duration of the proceedings resumes force.
The Tribunale does not even decide on the interim request — “consequently, there is no need to rule” — and closes it: suspension is already in place ex lege. The case shows how, even adopting the most “European” reading of the transitional regime, the Commissione’s rejection remains suspended where, while characterising the application as manifestly unfounded, it did not actually institute the accelerated procedure of Article 42 of Regulation (EU) 2024/1348.
Related provisions