The applicant, a national of Pakistan, requested international protection in Italy. Based on a hit in the Eurodac system, the Ministry of the Interior determined that he had already submitted a previous application in Austria, which was assessed and rejected. Consequently, Italy initiated a take-back request pursuant to Articles 23 et seq. of the Dublin III Regulation.

The applicant appealed against the decision on the Dublin transfer, and the Tribunal of Florence found the transfer unlawful due to the lack of implementation of the discretionary clauses set forth by Article 17 of the Dublin III Regulation. The tribunal ruled that the transfer can only be carried out if it does not entail a genuine and established risk of the applicant suffering inhuman or degrading treatment within the meaning of Article 4 of the ECHR. It The tribunal also assessed the country of origin information and determined that, given the insecurity in the applicant's home area (Khyber Pakhtunkhwa), a take-back request under Article 23 of the Dublin III Regulation posed a genuine risk of violating the applicant's rights. The Ministry of the Interior appealed the decision, and the applicant filed a counter-appeal.

The Supreme Court of Cassation cited CJEU judgments in joined cases DG (C‑254/21), XXX.XX (C‑297/21), PP (C‑315/21), GE (C‑328/21) v CZA (C‑228/21), Ministero dell'Interno, Dipartimento per le libertà civili e l'immigrazione – Unità Dublino, C‑228/21, C‑254/21, C‑297/21, C‑315/21 and C‑328/2 (30 November 2023), affirming that the court cannot oblige the requesting member state to apply the discretionary clause if it considers that the Dublin transfer entails a risk of breach of the principle of non-refoulement. Moreover, the court reiterated that the discretionary clauses are optional and entrusted to the national administration based on humanitarian political considerations, and cannot be directly executed by the court. It also clarified that the decision not to utilize these clauses may be contested in an appeal against the transfer decision to ascertain whether the Dublin III Regulation and the EU legal framework have been contravened.

Furthermore, the court determined that if the Dublin transfer is ordered and confirmed, the potestas iudicandi of the requesting state ceases; otherwise, the latter must proceed with examining the application. In this regard, the court emphasized the necessity of assessing whether conditions for granting national forms of protection are met, in accordance with Article 10(3) of the Constitution and the ECHR. It specified that national forms of protection encompass not only hypotheses of non-refoulement, but also to other vulnerable conditions as defined in Article 19 of Legislative Decree No. 286/1998.

Following CJEU judgment in C.K. and Others v Republic of Slovenia (Case C-578/16 PPU, 16 February 2017), the court determined that even in the absence of established systemic deficiencies, Article 4 of the EU Charter of Fundamental Rights may be invoked if there's a possibility that, in a specific case, the transfer of an applicant entails a genuine and substantiated risk of inhuman or degrading treatment.

The court raised the question whether it could be permissible to refrain from transferring an applicant to the requested member state following a take-back request, when an examination of the conditions for recognizing national forms of protection must be conducted ex officio. It considered that derogation from the general principles for determining the competence of a member state under the Dublin III Regulation may prompt an examination of the legitimacy of the interference of the national protection system with the transfer decision.  The court specified that this would entail a case-by-case assessment of certain categories of applicants, taking into account the vulnerability they would face upon forced return to the third country, within the scenarios safeguarded by the national protection system.

The court also raised the question whether the national system of protection could be regarded as a means of exercising the discretionary clauses, thus potentially indicating a tacit refusal to utilize them and enabling their scrutiny.

Due to the significant importance of the questions raised, the court referred the case to its United Sections (Sezioni Unite) for further assessment.