Interim decree (Article 35-ter(4) of Legislative Decree 25/2008) · N.R.G. 13622-1/2026
Unofficial translation of the SOS Patto summary. The original decision or document is available in Italian only.
Headnote
Communication of the information obligations under Article 8 of Regulation (EU) 2024/1348 is an indispensable procedural step: an information form not signed by the linguistic mediator and drawn up after the application was submitted and registered vitiates the procedure as regards full, timely and correct compliance with the information obligations. Breach of the participatory guarantees means that the applicant's statements are not fully informed, with the consequence that the mere statistical figure in Article 42(1), point (j) — origin from a country with a recognition rate ≤ 20% — is not fully reliable as a basis for applying the accelerated border procedure. The border procedure is moreover incompatible with the intertemporal rules of the Ministerial Decree of 21 July 2026 on the authorised places: an application submitted when the decree had not yet entered into force, at a place other than those later identified, cannot validly be channelled into the procedure under Article 43 of Regulation (EU) 2024/1348, given that Article 54(3) of that Regulation and Article 2(2) of the Ministerial Decree presuppose a considered assessment of the places equipped with adequate facilities and competences. The procedure having been converted from Article 35-ter of Legislative Decree 25/2008 to Article 35-bis of the same decree, the immediate issue of the document under Article 4(4) of Legislative Decree 142/2015 and the automatic cessation of any imposing or restrictive measure are ordered.
The Tribunal of Venice (judge Alessia Capriuoli) records that the conditions for applying the accelerated border procedure are not met, converts the procedure from Article 35-ter to Article 35-bis of Legislative Decree 25/2008, finds that the appellant has the right to remain in the territory, orders the immediate issue of the document under Article 4(4) of Legislative Decree 142/2015 and declares any imposing or restrictive measure automatically terminated. The decision of the Commissione territoriale of Padua, of 2 September 2026, had been taken in the border procedure under Article 43(1), point (a), and Article 42(1), point (j), of Regulation (EU) 2024/1348, the applicant being Tunisian.
The information form was not signed by the linguistic mediator and was drawn up on 26 August 2026, “following the date of submission and registration of the application” (24 and 25 August respectively). The irregularity and lateness of the information (Article 8(2) and Article 15(2) of Regulation (EU) 2024/1348) undermine the very formal correctness of the procedure, in accordance with the principles, “exportable also to the current regime”, of the Joint Chambers (Sezioni Unite) no. 11399/2024: all the information provided for in Article 8(2) of Regulation (EU) 2024/1348 must be provided “as soon as possible to enable applicants to exercise the rights guaranteed by this Regulation”.
Statements made without adequate information are not “fully informed” and cannot found the verification under Article 42(1), point (j), of Regulation (EU) 2024/1348, which requires comparison with the applicant's personal history and not the statistical figure alone. The Tribunal places the violations within the “constructive dialogue, based on loyalty and mutual trust” between the administration and the person concerned (Article 4 TFEU; CJEU judgment of 14 May 2020, joined cases C-924/19 PPU and C-925/19 PPU).
The procedure takes on “further hallmarks of unlawfulness”: the application was submitted on 24 August 2026, at a time when the Ministerial Decree of 21 July 2026 identifying the places authorised to carry out border procedures had not yet entered into force. Referring to Court of Cassation no. 18531 of 18 May 2026, the Tribunal notes that in intertemporal assessments “primary weight” is to be given “to the original phase of expression of the wish to apply”, since from that point the Authorities are under an obligation to “channel” the application into the procedure provided for. The notification under Article 54 of Regulation (EU) 2024/1348, to which the Ministerial Decree is linked (Article 2(2) of the decree), is not of merely formal value but “rests on a careful and considered assessment of the places equipped with all the adequate facilities and competences”: the transfer of persons to places not designated under Article 54 — “the only ones endowed with the so-called legal fiction of non-entry” — before the entry into force of the Ministerial Decree “automatically gives rise to full authorisation to enter the national territory”, a fact incompatible with the border procedure.
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