# C_2004201EN.01002301.xml

| 7.8.2004 | EN | Official Journal of the European Union | C 201/23 |
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7.8.2004

EN

Official Journal of the European Union

C 201/23

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Action brought on 4 June 2004 by the Italian Republic against the Commission of the European Communities

(Case T-207/04)

(2004/C 201/46)

Language of the case: Italian

An action against the Commission of the European Communities was brought before the Court of First Instance of the European Communities on 4 June 2004 by the Italian Republic, represented by Antonio Cingolo, avvocato dello Stato.

The applicant claims that the Court should:

| — | annul the Commission's letter No E2/LP D(2004) 712 of 25 March 2004, received on 26 March 2004, by which the European Commission, Directorate-General for Regional Policy, communicated to it the decision that amounts in respect of payments of certain advance payments (advance payments in the context of aid schemes for any Objective 1 and 2 programme) must be clearly identified in future payment declarations, in accordance with the provisions of the abovementioned letter from Commissioner Barnier, together with all underlying and connected measures; |
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annul the Commission's letter No E2/LP D(2004) 712 of 25 March 2004, received on 26 March 2004, by which the European Commission, Directorate-General for Regional Policy, communicated to it the decision that amounts in respect of payments of certain advance payments (advance payments in the context of aid schemes for any Objective 1 and 2 programme) must be clearly identified in future payment declarations, in accordance with the provisions of the abovementioned letter from Commissioner Barnier, together with all underlying and connected measures;

| — | in the alternative, and so far as may be necessary, annul Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds; |
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in the alternative, and so far as may be necessary, annul Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds;

| — | in any event, annul all underlying and connected measures; |
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in any event, annul all underlying and connected measures;

| — | order the Commission of the European Communities to pay the costs. |
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order the Commission of the European Communities to pay the costs.

Pleas in law and main arguments:

The Italian Republic has challenged before the Court of First Instance of the European Communities the Commission's letter No E2/LP D(2004) 712 of 25 March 2004 concerning the payment of advance payments in the context of aid schemes (MOP Research, Technological Development and Advanced Training), and – so far as may be necessary – Commission Regulation (EC) No 448/2004 of 10 March 2004
   (1), both concerning the eligibility of expenditure of operations co-financed by the Structural Funds.

In support of its claims in respect of the letter of 25 March 2004, the applicant alleges:

| — | infringement of essential procedural requirements owing to a complete failure to state reasons and owing to the adoption of the contested measure without any proper legal basis and without complying with the defendant's internal procedural rules; |
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infringement of essential procedural requirements owing to a complete failure to state reasons and owing to the adoption of the contested measure without any proper legal basis and without complying with the defendant's internal procedural rules;

| — | infringement of Article 9 of Commission Regulation (EC) No 438/2001 (2) by failing to comply with the accounting methods set out therein; |
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infringement of Article 9 of Commission Regulation (EC) No 438/2001 (2) by failing to comply with the accounting methods set out therein;

| — | infringement of Article 32 of the basic regulation (3) and of Commission Regulation No 448/04, which make the payment of advance payments conditional simply upon proof that the ‘final beneficiary’ State has transferred the sums in question to the end recipients of the funds; |
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infringement of Article 32 of the basic regulation (3) and of Commission Regulation No 448/04, which make the payment of advance payments conditional simply upon proof that the ‘final beneficiary’ State has transferred the sums in question to the end recipients of the funds;

| — | infringement of Regulation No 448/04 owing to breaches of the principles of equality and legal certainty, and contradictory reasoning in the contested letter. |
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infringement of Regulation No 448/04 owing to breaches of the principles of equality and legal certainty, and contradictory reasoning in the contested letter.

In respect of Regulation No 448/04, the applicant alleges infringement:

| — | of the rules governing the eligibility of expenditure laid down by the basic regulation; |
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of the rules governing the eligibility of expenditure laid down by the basic regulation;

| — | of the rules governing financial control (which do not impose the obligations alleged by the Commission); |
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of the rules governing financial control (which do not impose the obligations alleged by the Commission);

| — | of the principle of proportionality, in so far as the Commission requests evidence in addition to what is provided for and is necessary; |
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of the principle of proportionality, in so far as the Commission requests evidence in addition to what is provided for and is necessary;

| — | of the principle of non-retroactivity, given that Regulation No 448/04 contains provisions with retroactive effect for 44 months prior to its adoption, which is clearly unacceptable in the light of the general principles governing legislative enactment. |
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of the principle of non-retroactivity, given that Regulation No 448/04 contains provisions with retroactive effect for 44 months prior to its adoption, which is clearly unacceptable in the light of the general principles governing legislative enactment.

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(1)  Commission Regulation (EC) No 448/2004 of 10 March 2004 amending Regulation (EC) No 1685/2000 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the eligibility of expenditure of operations co-financed by the Structural Funds and withdrawing Regulation (EC) No 1145/2003 (OJ 2004 L 72, p. 66).

(2)  Commission Regulation (EC) No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of Council Regulation (EC) No 1260/1999 as regards the management and control systems for assistance granted under the Structural Funds (OJ 2001 L 63, p. 21).

(3)  Council Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions on the Structural Funds (OJ 1999 L 161, p. 1).

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