Interim decree (Article 35-ter(4), first sentence, of Legislative Decree 25/2008) · R.G. 4748/2026 -1 (cronol. 6169/2026)
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
The border procedure requires that the ministerial decree provided for by Article 28-bis of Legislative Decree 25/2008 has already been adopted and entered into force when the procedure is started: the Ministerial Decree of 21 July 2026, published in the Official Gazette on 10 August 2026, does not cure a procedure started earlier. Nor can Article 2(1), point (a), of the Ministerial Decree of 5 August 2019 make up for it, since it is obsolete because it implements a provision now repealed, refers only to accelerated procedures and does not clarify whether the provinces of Trieste and Gorizia contain an “external border crossing point” or which areas are a “transit zone” of it — concepts that Article 43(1), point (a), of Regulation (EU) 2024/1348 places at the centre of the provision and that require a clear, not blurred, delineation. Once the border procedure is disapplied, the exception of Article 68(3) of Regulation (EU) 2024/1348 no longer applies, the procedure is converted from Article 35-ter to Article 35-bis and automatic suspension under Article 35-bis(3) revives.
The Tribunale di Trieste (judge Michela Bortolami) found that the conditions for applying the accelerated border procedure were not met, converted the procedure from Article 35-ter to Article 35-bis of Legislative Decree 25/2008 and declared the contested decision automatically suspended for the whole duration of the proceedings. It is the first decision given after the publication in the Official Gazette of the Ministerial Decree of 21 July 2026, on 10 August, whereas the Trieste decrees of 4, 7 and 8 August could still confine themselves to noting that the ministerial decree had not been adopted.
The Tribunale reiterates that the source required by Article 28-bis “has not yet been adopted”, specifying the relevant moment — “at the time the procedure in question was started” — and acknowledging that the Ministerial Decree was published on 10 August 2026. The Commissione had decided on 29 July and the appeal was filed on 3 August; the judge decides on 20 August, with the Ministerial Decree already in force, and nevertheless disapplies the procedure. The point is also stated positively: the need for a clear delineation of the places
required the public administration to await the adoption and entry into force of a new decree of the Ministry of the Interior in order to apply the procedures in question in the territory of Trieste and Gorizia.
The supervening publication therefore does not cure procedures started before 10 August.
The Commissione had relied on Article 2(1), point (a), of the Ministerial Decree of 5 August 2019, which lists among the border or transit zones those “existing” in the provinces of Trieste and Gorizia. That decree, however, implemented Article 28-bis(1-quater) of Legislative Decree 25/2008 “in force at the time and now repealed by Decree-Law 100/2026”, served to extend the administrative accelerated procedure to those who had evaded border controls, and refers to directives now repealed.
The difficulty arises upstream: in the new legal framework there is no “clear definition of border zone and, above all, of transit zone”, the latter concept being “far more nebulous”. Precisely because the application of procedures affecting freedom of movement depends on them, they “require […] a clear delineation at least at the time of adopting the domestic legal instruments”. The 2019 Ministerial Decree “assimilates and confuses” the two concepts and does not clarify “whether the cited territories contain an external border crossing point and which one it is”: the Commissione’s thesis that the whole territory of the two provinces is relevant therefore cannot be accepted. That vagueness “could be explained” as long as the substantive condition was the evasion of controls; once that filter has fallen, it “has by now lost its descriptive scope”.
The proceedings continue in the forms of Article 35-bis “and not Article 35-ter […], observed until now”. Among the exceptions to the suspensive effect in paragraph 3, Article 68(3), point (a)(ii), of Regulation (EU) 2024/1348 covers the applicant subject to the border procedure; once that is disapplied, the exception does not apply, “with the consequent revival of the general rule” of automatic suspension. It is the same mechanism applied by Trib. Torino, 11 August, starting from the repeal of the former Article 28-bis(2) of Legislative Decree 25/2008.
The Commissione territoriale did not enter an appearance and did not file the brief referred to in Article 35-ter of Legislative Decree 25/2008.
Related provisions