**Case T-308/05**

**Italian Republic**

**v**

**Commission of the European Communities**

(Structural funds – Co-financing – Regulations (EC) Nos 1260/1999 and 448/2004 – Conditions concerning the eligibility of advance payments made by national bodies within the framework of State aid schemes or
in relation to the grant of aid – Proof of use of the funds by the final recipient – Actions for annulment – Actionable measures)

Summary of the Judgment

1.      *Actions for annulment – Actionable measures*

*(Arts 230 EC and 233 EC; Council Regulation No 1260/1999, Art. 32(1), fourth para., and (3))*

2.      *Procedure – Application initiating proceedings – Formal requirements*

*(Rules of Procedure of the Court of First Instance, Art. 44(1))*

3.      *Actions for annulment – Actionable measures*

*(Art. 230 EC; Council Regulation No 1260/1999)*

4.      *Economic and social cohesion – Structural assistance – Community financing – Eligibility for assistance of expenses incurred
by national bodies*

*(Council Regulation No 1260/1999, Art. 32; Commission Regulation No 448/2004, Annex, Rule No 1, points 1 and 2)*

5.      *Budget of the European Communities – Community financial assistance – Financial control of assistance*

*(Arts 10 EC and 274 EC; Council Regulation No 1260/1999, Arts 32(1), third para., and 38(1)(g); Commission Regulation No 438/2001,
Arts 2(1) and 7(2))*

6.      *Acts of the institutions – Choice of legal basis – Community legislation – Requirements of clarity and foreseeability*

7.      *Economic and social cohesion – Structural assistance – Community financing – Eligibility for assistance of expenses incurred
by national bodies*

*(Council Regulation No 1260/1999, Art. 32(1), third para.)*

8.      *Economic and social cohesion – Structural assistance – Community financing – Eligibility for assistance of expenses incurred
by national bodies*

*(Council Regulation No 1260/1999, Art. 32(1), third para.; Commission Regulation No 448/2004, Annex, Rule No 1, point 1.3)*

1.      An action for annulment under Article 230 EC is available in the case of all measures adopted by the institutions, whatever
their nature or form, which are intended to produce legal effects.

In that regard, when the Commission receives an application, acceptable within the meaning of Article 32(3) of Regulation
No 1260/1999 laying down general provisions on the Structural Funds, for a contribution from the Structural Funds in the context
of an aid scheme, it is not entitled to prolong a state of inaction. Subject to available funding, the Commission is to make
the related interim payments within no more than two months of receipt of that application, in accordance with the fourth
subparagraph of Article 32(1) of that regulation. Thus, if the Commission had failed in the present case to fulfil that obligation
to act, the Member State concerned should have contested that situation by bringing an action for failure to act. If that
action for failure to act had been declared well founded, the Commission would have been required, pursuant to Article 233
EC, to take the necessary measures to comply with the judgment. Consequently, a letter of the Commission, in so far as it
discloses to a Member State the Commission’s refusal, pending receipt of information concerning advance payments, to act in
regard to the payment applications, produces no legal effects which can be contested in the context of an action for annulment
under Article 230 EC.

(see paras 56, 59, 62)

2.      Article 44(1)(c) of the Rules of Procedure of the Court of First Instance provides that the application initiating proceedings
must state a summary of the pleas in law on which the application is based. Accordingly, it must specify the grounds on which
the action is based, with the result that a mere abstract statement of the grounds is not sufficient.

Moreover, that summary – albeit concise – must be sufficiently clear and precise to enable the defendant to prepare its defence
and the Court of First Instance to rule on the action, if necessary, without any further information. In order to ensure legal
certainty and the sound administration of justice, it is necessary – if an action or, more specifically, a plea in law, is
to be admissible – that the basic legal and factual particulars relied on be indicated coherently and intelligibly in the
application itself.

(see paras 71-72)

3.      A Commission letter to a Member State, asking it to complete the statements of expenditure accompanying the applications made
to the Commission for payment of the contribution from the Structural Funds, inasmuch as it refers to an interpretative memorandum
– concerning the third subparagraph of Article 32(1) of Regulation No 1260/1999 laying down general provisions on the Structural
Funds – according to which, in the context of State aid schemes within the meaning of Article 87 EC or in relation to the
grant of aid, advance payments made by the national bodies which are not accompanied by documentary evidence of their use
by the final recipients are not eligible for a contribution from the Funds, has not changed the scope of the Community rules
and, to that extent, cannot constitute an actionable measure for the purposes of Article 230 EC.

(see paras 102, 114)

4.      Inasmuch as a Commission letter to a Member State relies on an interpretative memorandum – concerning the third subparagraph
of Article 32(1) of Regulation No 1260/1999 laying down general provisions on the Structural Funds – according to which, in
the context of State aid schemes within the meaning of Article 87 EC or in relation to the grant of aid, advance payments
made by the national bodies which are not accompanied by documentary evidence of their use by the final recipients are not
eligible for a contribution from the Funds, as a basis for refusing to charge to the Funds the amounts corresponding to advance
payments unsupported by documentary evidence of their use by the final recipients, that letter complies with Article 32 of
Regulation No 1260/1999 and points 1 and 2 of Rule No 1 of the Annex to Regulation No 448/2004 amending Regulation No 1685/2000
laying down detailed rules for the implementation of Regulation No 1260/1999 as regards eligibility of expenditure of operations
co-financed by the Structural Funds.

(see paras 103, 148)

5.      The Commission is responsible for the implementation of the general budget of the European Union by virtue of Article 274
EC. Since Article 274 EC draws no distinction according to the form of management employed, the Commission continues to exercise
that general responsibility in the context of the shared management of the Structural Funds. In addition, it follows from
Articles 10 EC and 274 EC that, in the context of the shared management of the Structural Funds, the Member States must co-operate
with the Commission in order to ensure that Community funds are used in accordance with the principles of sound financial
management. Reference is made to those rules in Article 38(1)(g) of Regulation No 1260/1999 laying down general provisions
on the Structural Funds, which concerns the financial control of assistance.

Where the Member States’ management and control systems are reliable and provide a ‘sufficient audit trail’ within the meaning
of Article 7(2) of Regulation No 438/2001 laying down detailed rules for the implementation of Regulation No 1260/1999 as
regards the management and control systems for assistance granted under the Structural Funds, the certification by the Member
State concerned of the expenditure declared provides, in principle, sufficient assurance to the Commission that the applications
for a contribution from the Community are correct, regular and eligible, as provided in Article 2(1) of Regulation No 438/2001.

However, where the Commission and a Member State adopt different interpretations of a measure determining the conditions of
eligibility of certain expenditure, the reliability of the national management and control system no longer assures the Commission
that all the expenditure declared by that Member State is eligible expenditure within the meaning of the applicable rules.
It is therefore for the Member State concerned, in the exercise of its responsibilities regarding the certification of expenditure
and in sincere cooperation with the Community institutions, to place the Commission in a position to implement the budget
on its own responsibility by providing it with all the information which the Commission considers necessary to effect payments
which are in conformity with the third subparagraph of Article 32(1) of Regulation No 1260/1999. Any other approach would
frustrate the useful effect of Article 38(1) of that regulation and, more generally, of Articles 10 EC and 274 EC.

(see paras 109, 111-112)

6.      Community legislation must be clear and its application foreseeable for all interested parties. The principle of legal certainty,
which forms part of the general principles of Community law, requires that the binding nature of any act intended to produce
legal effects must be derived from a provision of Community law which prescribes the legal form to be taken by that act and
which must be expressly indicated therein as its legal basis. However, failure to specify the precise legal basis for a legislative
act need not necessarily constitute a material defect where it is possible to determine the legal basis for that act on the
basis of other elements thereof. None the less, explicit reference is indispensable where, in its absence, the parties concerned
and the competent Community Court would remain uncertain as to the precise legal basis.

(see paras 123-124)

7.      The third subparagraph of Article 32(1) of Regulation No 1260/1999 laying down general provisions on the Structural Funds
and the detailed rules for its implementation confer no discretion on the Commission in regard to determining the conditions
of eligibility of advance payments. By deciding, in a letter addressed to a Member State, that the advance payments made by
the national bodies and declared as interim payments by that Member State, but not accompanied by documentary evidence of
their use by the final recipients, were not eligible for a contribution from the Funds, the Commission could not be in breach
of the principle of proportionality, the principle of equal treatment or the principle of legal certainty.

(see para. 150)

8.      The principles of proportionality, equal treatment and legal certainty are not infringed by the principle of reimbursement
of expenses incurred by way of interim payments and payments of the final balance, on which Article 32 of Regulation No 1260/1999
laying down general provisions on the Structural Funds, and the detailed rules for its implementation, are based, or by an
interpretative memorandum of the Commission concerning the third subparagraph of Article 32(1) of that regulation, according
to which, in the context of State aid schemes within the meaning of Article 87 EC or in relation to the grant of aid, advance
payments made by the national bodies which are not accompanied by documentary evidence of their use by the final recipients
are not eligible for a contribution from the Funds.

As regards the principle of proportionality, in the system put in place by Article 32 of Regulation No 1260/1999, the principle
of reimbursement of expenses incurred by way of interim payments and payments of the final balance helps to ensure that Community
funds are used in accordance with the principles of sound financial management referred to in Article 274 EC. It makes it
possible to avoid the Community granting substantial financial contributions of which it cannot obtain repayment, or has difficulty
in obtaining it, where those contributions are not put to their intended use, by limiting the risk to the Community budget
to an amount equal to 7% of the contribution from the Funds to the assistance in question. Accordingly, neither the principle
of reimbursement of expenses incurred by way of interim payments and payments of the final balance, nor the interpretative
memorandum which implements that principle, can be considered a manifestly inappropriate measure.

As regards the principle of equal treatment, point 1.3 of Rule No 1 of the Annex to Regulation No 448/2004 amending Regulation
No 1685/2000 laying down detailed rules for the implementation of Regulation No 1260/1999 as regards eligibility of expenditure
of operations co-financed by the Structural Funds, which provides that State aid granted in the form of payments into venture
capital, loan and guarantee funds is to be treated as expenditure actually paid out within the meaning of the third subparagraph
of Article 32(1) of Regulation No 1260/1999, provided that the funds concerned meet the requirements of Rules Nos 8 and 9
of that annex, is a particular application of the principle of reimbursement of expenses incurred by way of interim payments
and payments of the final balance, designed to take account of the specific nature of the financing of undertakings’ capital
investments. Such financing is granted to small and medium-sized enterprises by independent legal entities acting as intermediaries.
Contrary to the situation in regard to advance payments, financing for capital investments is paid into funds whose purpose
is to facilitate the access of the final recipients to the sources of the finance. It is because of that specific situation,
which is not comparable to that of advance payments, that payments into venture capital, loan and guarantee funds can be treated
as expenditure actually paid out within the meaning of the third subparagraph of Article 32(1) of Regulation No 1260/1999.

Lastly, the principle of legal certainty cannot be regarded as infringed in the present case inasmuch as the principle of
reimbursement of expenses incurred by way of interim payments and payments of the final balance constitutes a correct implementation
of the applicable rules, as does the interpretative memorandum.

(see paras 155-157, 159-162)

JUDGMENT OF THE COURT OF FIRST INSTANCE (Second Chamber)

12 December 2007 (*)

(Structural Funds – Co-financing – Regulations (EC) No 1260/1999 and (EC) No 448/2004 – Conditions concerning the eligibility of advance payments made by national bodies within the framework of State aid schemes or
in relation to the grant of aid – Proof of use of the Funds by the final recipient – Actions for annulment – Actionable measures)

In Case T‐308/05,

**Italian Republic,** represented initially by A. Cingolo, and subsequently by P. Gentili, avvocati dello Stato,

applicant,

v

**Commission of the European Communities,** represented by L. Flynn and M. Velardo, acting as Agents, and by G. Faedo, avocat,

defendant,

APPLICATION for annulment of the decisions allegedly contained in the Commission’s letters No 5272 of 7 June 2005, No 5453
of 8 June 2005, Nos5726 and 5728 of 17 June 2005, and No 5952 of 23 June 2005,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),

composed of A.W.H. Meij, acting for the President, N.J. Forwood and I. Pelikánová, Judges,

Registrar: J. Palacio González, Principal Administrator,

having regard to the written procedure and further to the hearing on 25 April 2007,

gives the following

**Judgment**

**Legal context**

1        Under Article 159 EC, the European Community is to support the achievement of the objectives of economic and social cohesion,
including regional development, by action through the Structural Funds (European Agricultural Guidance and Guarantee Fund,
Guidance Section; European Social Fund; European Regional Development Fund; ‘the Structural Funds’ or ‘the Funds’).

2        Under Article 161 EC, the Council is to define the tasks, priority objectives and organisation of the Structural Funds, together
with the general rules applicable to them.

3        On the basis of Article 161 EC, the Council adopted Regulation (EC) No 1260/1999 of 21 June 1999 laying down general provisions
on the Structural Funds (OJ 1999 L 161, p. 1; ‘the general regulation’), which governs the objectives, organisation, functioning
and implementation of the Structural Funds, together with the respective roles and powers of the Commission and the Member
States in that regard.

*Provisions relating to the eligibility of expenditure for a contribution from the Funds*

4        Article 30 of the general regulation lays down the conditions for the ‘eligibility’ of expenditure for a financial contribution
from the Funds. Under Article 30(3), the ‘relevant national rules shall apply to eligible expenditure except where, as necessary,
the Commission lays down common rules on the eligibility of expenditure in accordance with the procedure referred to in Article
53(2)’.

5        Pursuant to Article 30(3) and Article 53(2) of the general regulation, the Commission adopted Regulation (EC) No 1685/2000
of 28 July 2000 laying down detailed rules as regards eligibility of expenditure of operations co-financed by the Structural
Funds (OJ 2000 L 193, p. 39). That regulation entered into force on 5 August 2000. It was subsequently amended – with effect
from its entry into force, so far as concerns the provisions material to the present case – by Commission Regulation (EC)
No 1145/2003 of 27 June 2003 (OJ 2003 L 160, p. 48). Later, the Commission adopted Regulation (EC) No 448/2004 of 10 March
2004 (OJ 2004 L 72, p. 66) withdrawing Regulation No 1145/2003 and amending the Annex to Regulation No 1685/2000 by replacing
it with the text contained in the annex to the amending regulation (‘the Annex to Regulation No 448/2004’). Regulation No
448/2004 entered into force on 11 March 2004. In accordance with Article 3 thereof, it was to apply retroactively from 5 July
2003, the date on which Regulation No 1145/2003 entered into force, except for points 1.3, 2.1, 2.2 and 2.3 of Rule No 1,
which applied from 5 August 2000, the date on which Regulation No 1685/2000 entered into force.

6        Rule No 1 of the Annex to Regulation No 448/2004, which deals with ‘expenditure actually paid out’, defines what is meant
by ‘payments effected by final beneficiaries’. Under point 1.2 thereof:

‘In the case of aid schemes under Article 87 of the Treaty and aid granted by bodies designated by the Member States, ‘payments
effected by final beneficiaries’ means aid paid to individual recipients by the bodies which grant the aid. Payments of aid
by final beneficiaries must be justified by reference to the conditions and objectives of the aid.’

7        Under point 1.4 of Rule No 1:

‘In cases other than those referred to in point 1.2, “payments effected by final beneficiaries” means payments effected by
the bodies or public or private firms of the type defined in the programme complement in accordance with Article 18(3)(b)
of the general regulation having direct responsibility for commissioning the specific operation.’

8        Rule No 1 also lays down the detailed rules for ‘proof of expenditure’. Under point 2.1 thereof:

‘As a general rule, payments by final beneficiaries, declared as interim payments and payments of the final balance, shall
be supported by receipted invoices. Where this cannot be done, payments shall be supported by accounting documents of equivalent
probative value.’

9        Point 2.3 of Rule No 1 provides as follows:

‘In addition, where operations are executed in the framework of public procurement procedures payments by final beneficiaries,
declared as interim payments and payments of the final balance, shall be supported by receipted invoices issued in accordance
with the provisions of the signed contracts. In all other cases, including the award of public grants, payments by final beneficiaries,
declared as interim payments and payments of the final balance, shall be justified by expenditure actually paid (including
expenditure referred to in point 1.5) [that is to say, depreciation, contributions in kind and overheads] by the bodies or
public or private firms concerned in implementing the operation.’

*Provisions concerning payment of the contribution from the Funds*

10      Article 32 of the general regulation governs ‘payments’ of the contribution from the Funds. The third and fourth subparagraphs
of Article 32(1) provide as follows:

‘Payments may take the form of payments on account, interim payments or payments of the final balance. Interim payments and
payments of the balance shall relate to expenditure actually paid out, which must correspond to payments effected by the final
beneficiaries, supported by receipted invoices or accounting documents of equivalent probative value.

Subject to available funding, the Commission shall make interim payments within no more than two months of receipt of an acceptable
payment application ...’

11      Under Article 32(2) of the general regulation:

‘When the first commitment is made, the Commission shall make a payment on account to the paying authority. This payment on
account shall be 7% of the contribution from the Funds to the assistance in question. ...’

12      Article 32(3) of the general regulation provides, inter alia, that:

‘Interim payments shall be made by the Commission to reimburse expenditure actually paid under the Funds as certified by the
paying authority. ... They shall be subject to the following conditions:

...

The Member State and the paying authority shall be informed immediately by the Commission if one of these conditions is not
fulfilled and the payment application is therefore not acceptable and they shall take the necessary steps to remedy the situation.’

13      Article 32(4) of the general regulation provides as follows:

‘The final balance of the assistance shall be paid if:

(a)      the paying authority submits to the Commission, within six months of the deadline for payment laid down in the decision granting
a contribution from the Funds, a certified statement of expenditure actually paid;

...’

*Provisions concerning the certification of expenditure*

14      Pursuant to Article 53(2) of the general regulation, and in order to harmonise standards for the certification of expenditure
for which interim payments or the final balance are claimed from the Funds, the Commission adopted – as part of Commission
Regulation (EC) No 438/2001 of 2 March 2001 laying down detailed rules for the implementation of the general regulation as
regards the management and control systems for assistance granted under the Structural Funds (OJ 2001 L 63, p. 21) – rules
which specify the content of certificates concerning statements of interim and final expenditure, as well as the nature and
quality of the information on which those certificates are to be based.

*Provisions concerning financial control*

15      Financial control is governed by Articles 38 and 39 of the general regulation and by the detailed rules for their application
contained in Regulation No 438/2001.

16      Article 38(1) of the general regulation provides that, in the context of the financial control for which they are to take
responsibility in the first instance, the Member States are to ‘[cooperate] with the Commission to ensure that Community funds
are used in accordance with the principles of sound financial management’.

17      One of the provisions dealing with ‘management and control systems’, Article 7 of Regulation No 438/2001, provides as follows:

‘1.      Member States’ management and control systems shall provide a sufficient audit trail.

2.      An audit trail shall be considered sufficient where it permits:

(a)      reconciliation of the summary amounts certified to the Commission with the individual expenditure records and supporting documents
held at the various administrative levels and by final beneficiaries including, where the latter are not the final recipients
of funding, the bodies or firms carrying out operations ...’

18      In the part dealing with ‘Certification of expenditure’, Article 9(1) of Regulation No 438/2001 provides that:

‘The certificates of statements of interim and final expenditure referred to in Article 32(3) and (4) of [the general regulation]
shall be drawn up in the form prescribed in Annex II by a person or department within the paying authority that is functionally
independent of any services that approve claims.’

19      Article 9(2)(b)(i) of Regulation No 438/2001 provides that, before certifying a given statement of expenditure, the paying
authority is to satisfy itself that the statement of expenditure includes only expenditure ‘in the form of expenditure by
final beneficiaries, within the meaning of points 1.2, 1.3 and 2 of Rule No 1 of the Annex to Regulation ... No 1685/2000, which
can be supported by receipted invoices or accounting documents of equivalent probative value’.

**Facts**

20      By letter of 7 September 2001, the Commission sent the Italian Republic a memorandum setting out an interpretation of the
third subparagraph of Article 32(1) of the general regulation (‘the interpretative memorandum’). The covering letter indicates
that ‘the purpose of [the] memorandum is to clarify certain questions referred to the Commission on the meaning of “expenditure
actually paid out” and “payments effected by the final beneficiaries”’. In that connection, point 8 of the interpretative
memorandum set out, in regard to the abovementioned provision, the eligibility conditions for co-financing by the Structural
Funds of advance payments made by national bodies (‘the final beneficiaries’) within the framework of State aid schemes for
the purposes of Article 87 EC or in relation to the grant of aid (‘advance payments’): ‘Where the final beneficiary is not
the same as the individual recipient of the Community funds – for aid schemes, for example – advances on subsidies are paid
to the individual recipients by the final beneficiaries. However, expenditure declared by the final beneficiary to the management
or payment authority, or to the intermediary body, must match the expenditure actually paid out by the final recipients, as
attested to by receipted invoices or by documents of equivalent probative value. That is why advance payments made by the
final beneficiary cannot be included in the expenditure declared to the Commission unless that beneficiary was able to establish
that the final recipient used the advance to reimburse expenditure actually paid out.’ Thus, according to the interpretative
memorandum, advance payments not supported by proof of their use by the final recipients (‘unsupported advance payments’)
are not eligible for a contribution from the Funds (‘the general rule at issue’).

21      By letter of 20 January 2003, the Commission informed the Italian Republic, in the context of processing a payment application
made by the latter, that it would deduct the amounts corresponding to unsupported advance payments. It called upon the Italian
Republic to inform it of the amount of such advances, processing of the payment application being suspended in the meantime.

22      By letter of 3 March 2003, the Commission informed the Italian Republic that it had ordered payment of a sum lower than that
requested, having deducted the amount corresponding to the unsupported advance payments.

23      On 27 March 2003, the Italian Republic brought an action for annulment of the two abovementioned letters (Case C‐138/03).

24      At the same time as those events, a consultation procedure was under way within the Committee on the Development and Conversion
of Regions (‘the Committee’) with the aim of defining ways of simplifying the management of the Structural Funds. In that
context, the Commission had asked the Committee to examine the possibility that advance payments might be eligible for a contribution
from the Funds and the conditions of eligibility in such a case. Since no agreement was reached at the Committee’s 73rd meeting
held on 19 February 2003, the Commission decided to take no further steps in that regard.

25      By letter of 14 May 2003, the Commission informed the Italian Republic of the outcome of the discussions which had taken place
within the Committee. It indicated that its position as regards the eligibility of advance payments remained the same as that
stated in the interpretative memorandum. However, referring to the doubts which could have arisen as to the interpretation
of the provisions in force and in order not to disappoint expectations which might legitimately have been created by the discussions
within the Committee, the Commission decided to treat unsupported advance payments as eligible where they related to aid in
respect of which the final decision to grant the aid had been adopted by 19 February 2003 at the latest, or to aid granted
in the context of a tendering procedure which had been concluded by that date at the latest. In addition, the Commission informed
the Italian Republic that the amount of advance payments had to be specified, in accordance with the rules thus laid down,
in the statements of expenditure accompanying the payment applications submitted to it. On 24 July 2003, the Italian Republic
brought an action for annulment of the letter of 14 May 2003 (Case C‐324/03).

26      In application of the rules set out in the letter of 14 May 2003, the Italian authorities received payment, on 5 June 2003,
of the amounts referred to in the letters of 20 January and 3 March 2003, which had been claimed in Case C‐138/03.

27      By letter of 29 July 2003, the Commission sent the Italian authorities a new version of the letter of 14 May 2003, which corrected
a number of translation errors in the latter. On 9 October 2003, the Italian Republic brought an action for annulment of the
letter of 29 July 2003 (Case C‐431/03). As in Case C‐324/03, the Italian Republic contested the letter in so far as it refused
to accept as eligible for a contribution from the Structural Funds advance payments unsupported by documentary evidence of
their use by the final recipients where the final decision to grant the aid had been adopted after 19 February 2003 or the
tendering procedure had been concluded after that date (‘the advance payments at issue’).

28      On 25 September 2003, the Italian Republic also brought an action against Regulation No 1145/2003, which had entered into
force on 5 July 2003 (Case C‐401/03, which became Case T‐223/04 when it was transferred to the Court of First Instance).

29      By letter of 25 March 2004, the Commission informed the Italian Republic that the amounts of advance payments made in the
context of aid schemes for any Objective 1 or Objective 2 programme must be clearly specified in respect of each measure in
future statements of expenditure, as was stated in the letters of 14 May and 29 July 2003. The Italian Republic brought an
action against the letter of 25 March 2004 and, in the alternative, against Regulation No 448/2004, which had entered into
force on 11 March 2004 (Case T‐207/04).

30      By letter No 6311 of 1 March 2005, the Italian Republic applied to the Commission for an interim payment in the context of
the implementation of the regional operational programme (‘ROP’) on the basis of Objective 1 for 2000-06 in respect of the
Campania region.

31      By letter No 2772 of 21 March 2005, the Commission asked the Italian Republic to complete the statement of expenditure accompanying
that payment application by indicating clearly the amounts of the advance payments at issue.

32      By letter No 12827 of 29 April 2005, the Italian Republic made a further payment application for an amount of EUR 17 341 776.84,
again in the context of the implementation of the abovementioned ROP.

33      By application lodged at the Registry of the Court of First Instance on 30 May 2005, the Italian Republic brought an action
against, inter alia, letter No 2772 of 21 March 2005 (Case T‐212/05).

34      By letter No 5272 of 7 June 2005 (‘the first contested letter’), the Commission asked the Italian Republic to complete the
statements of expenditure accompanying the payment applications made to it by letter No 6311 of 1 March 2005 and letter No
12827 of 29 April 2005 (‘the statements of expenditure at issue’ and ‘the payment applications at issue’) by specifying, in
respect of each measure, the amount of the advance payments at issue which had been paid or were to be paid. It also pointed
out that the payment procedures for the payment applications at issue would be suspended or would remain suspended until that
information was received. That letter was received by the Italian authorities concerned on 8 June 2005.

35      By letter No 5453 of 8 June 2005 (‘the second contested letter’), letters Nos 5726 and 5728 of 17 June 2005 (‘the third contested
letter’ and ‘the fourth contested letter’, respectively) and letter No 5952 of 23 June 2005 (‘the fifth contested letter’),
the Commission informed the Italian Republic that the payments made would not match the amount applied for in the context
of the implementation, on the one hand, of the Single Programming Document under Objective 2 for 2000-06 in respect of the
Lazio region and, on the other, the ROP under Objective 1 for the same period in respect of the Puglia region, as a result
of the deduction of the amounts corresponding to the advance payments at issue.

36      By judgment of 24 November 2005 in Joined Cases C‐138/03, C‐324/03 and C‐431/03 *Italy*v *Commission* [2005] ECR I-10043 (the ‘judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03’), the Court of Justice held that it was
unnecessary to give judgment on the action in Case C-138/03 and that the actions in Case C-324/03 and Case C-431/03 fell to
be dismissed as unfounded and inadmissible, respectively.

**Procedure and forms of order sought**

37      By application lodged at the Registry of the Court of First Instance on 10 August 2005, the Italian Republic brought the present
action.

38      By letter of 10 January 2006, the Registry asked the parties to submit their observations on the possible implications for
the present case of the judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above. The parties
submitted their observations within the time allowed and the Commission submitted to the Registry on 2 March 2006 a corrigendum
intended to correct a clerical error in its observations.

39      Upon hearing the report of the Judge-Rapporteur, the Court of First Instance (Second Chamber) decided to open the oral procedure
and, by way of measures of organisation of procedure, asked the Commission to answer a number of written questions and asked
the Italian Republic to produce a document. The parties complied with those requests.

40      By decision of 2 February 2007, Judge A.W.H. Meij and Judge N.J. Forwood were designated as Acting President of Chamber and
Judge, respectively, replacing Judge J. Pirrung, who was unable to take part.

41      The parties presented oral argument and replied to the questions put by the Court at the hearing on 25 April 2007. Following
the hearing, an informal meeting with the representatives of the parties was organised before the Court.

42      The Italian Republic claims that the Court should:

–        annul the first contested letter in so far as it asks it to complete the statements of expenditure accompanying the payment
applications at issue by indicating, in respect of each measure, the amount of the advance payments at issue which had been
paid or which were to be paid and in so far as payment procedures for the contested applications for payment would be suspended
or would remain suspended until that information was received;

–        annul the second, third, fourth and fifth contested letters in so far as they inform it that the payments made would not match
the amount applied for as a result of the deduction of the amounts corresponding to the advance payments at issue;

–        order the Commission to pay the costs.

43      The Commission contends that the Court should:

–        dismiss the action as inadmissible or as unfounded;

–        order the Italian Republic to pay the costs.

**Admissibility**

*Arguments of the parties*

44      The Commission raised an objection of inadmissibility in respect of the first contested letter on the ground that it does
not constitute an actionable measure for the purposes of Article 230 EC by reason of its interpretative nature or, in the
alternative, because it merely confirms the view expressed in the interpretative memorandum.

45      Primarily, the Commission contends that the first contested letter does not, of itself, produce any legal effects but is purely
interpretative.

46      With regard, first, to the general rule at issue, the first contested letter merely repeats the Commission’s interpretation
of the third subparagraph of Article 32(1) of the general regulation and, of itself, does not produce any legal effect vis-à-vis
the Italian Republic.

47      With regard, secondly, to the request for information concerning advance payments, that request was merely an implementing
step and the practical expression of the rules concerning the eligibility of expenditure and, in particular, of the rules
on proof of expenditure laid down in Regulation No 448/2004.

48      Thirdly and finally, the statement that, pending receipt of the information concerning advance payments, the payment procedures
at issue would be suspended or would remain suspended reflects the Commission’s obligation, pursuant to the principles of
sound financial management, not to follow up payment applications which are irregular or incomplete or which do not comply
with the rules on proof of expenditure. That statement reflects the fact that, in the absence of the required information,
the Commission cannot make the requested payments without expressing its view as to whether or not the payment applications
at issue are justified.

49      In reply to the Italian Republic’s argument, the Commission contends that, in accordance with settled case-law, the question
whether the first contested letter is an actionable measure cannot be determined by reference to the fact that the general
rule at issue, to which it refers, may be unlawful or even to the possibility that, in adopting that rule, the Commission
exceeded its powers.

50      In the alternative, the Commission alleges that the first contested letter merely confirms the view expressed by it in the
interpretative memorandum. That letter confirmed the general rule at issue set out in the letters of 14 May and 29 July 2003
and, before those letters were adopted, in the interpretative memorandum. Those letters definitively ended the institutional
debate on the question of the eligibility of advance payments. In paragraphs 36 and 37 of the judgment in Joined Cases C‐138/03,
C‐324/03 and C‐431/03, cited in paragraph 36 above, the Court of Justice confirmed that the letter of 14 May 2003 reflected
the definitive outcome of a reconsideration of that question.

51      Finally, the Commission argues that the Italian Republic can obtain no real advantage from the annulment of the first contested
letter inasmuch as the Commission will continue in any event to apply the criteria laid down in the interpretative memorandum
when considering the payment applications at issue.

52      The Italian Republic claims that the action against the first contested letter is admissible. That letter, of itself, produces
legal effects and could directly modify its legal position, which means that, in accordance with settled case-law, it constitutes
an actionable measure for the purposes of Article 230 EC.

53      In the first place, the first contested letter contains, in accordance with the contents of the letters of 29 July 2003 and
25 March 2004, an injunction to include information relating to advance payments in the statements of expenditure at issue.
The obligation to make such statements does not flow from the provisions of Regulation No 438/2001, laying down the detailed
rules for the certification of expenditure, but from the general rule at issue, which is based on an erroneous interpretation
of the provisions of the general regulation and Regulation No 448/2004 concerning the eligibility of expenditure.

54      In the second place, the first contested letter added a new element to the rules governing the eligibility of expenditure
and certification thereof, and to the Commission’s earlier letters, inasmuch as it attached a penalty to the injunction to
transmit information concerning advance payments. The letter stated that the payment applications at issue would not be dealt
with so long as the information concerning advance payments had not been sent. Thus, contrary to the applicable rules, the
first contested letter introduced a new, purely procedural, ground for rejecting payment applications.

55      Finally, the Italian Republic challenges the Commission’s argument that the first contested letter merely confirms the view
expressed by it in the interpretative memorandum. On being challenged, the general rule at issue referred to in the interpretative
memorandum had been reconsidered in depth in the context of the institutional debate concerning the amendment of Regulation
No 1685/2000, and the first contested letter, adopted shortly after Regulation No 448/2004, reflects the outcome of that debate.

*Findings of the Court*

56      According to settled case-law, an action for annulment under Article 230 EC is available in the case of all measures adopted
by the institutions, whatever their nature or form, which are intended to produce legal effects (see the judgment in Joined
Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, paragraph 32 and the case-law cited therein).

57      In order to assess whether the first contested letter produces legal effects for the purposes of the case-law cited above
in that it asks the Italian Republic to complete the statements of expenditure at issue by indicating, in respect of each
measure, the amount of the advance payments at issue which had been paid or which were to be paid and in that it states that
the payment procedures under way in respect of the payment applications at issue would be suspended or would remain suspended
until that information was received, regard must be had both to the substance of the letter and to the context in which it
was adopted (see the order in Case C‐50/90 *Sunzest* v *Commission* [1991] ECR I‐2917, paragraph 13).

58      It should be noted, first, that the Italian Republic’s allegation that the first contested letter imposed a penalty on it
by stating that the payment applications at issue would not be dealt with until the information concerning advance payments
had been received is essentially a criticism of the state of inaction prolonged by the Commission. As it admitted at the hearing,
the Italian Republic considers that the Commission should have been required in those circumstances to make the payments corresponding
to the payment applications at issue within the two-month time-limit laid down in the fourth subparagraph of Article 32(1)
of the general regulation.

59      It should be pointed out in that regard that when the Commission receives a payment application which is acceptable within
the meaning of Article 32(3) of the general regulation, it is not entitled to prolong a state of inaction. Subject to available
funding, the Commission is to make the related interim payments within no more than two months of receipt of that application,
in accordance with the fourth subparagraph of Article 32(1) of the general regulation. Thus, if the Commission had failed
to fulfil that obligation to act, as the Italian Republic claims, the latter should have contested that situation by bringing
an action for failure to act (see, to that effect, Case 44/81 *Germany* v *Commission* [1982] ECR 1855, paragraph 6, and the judgment of 14 December 2006 in Joined Cases T‐314/04 and T‐414/04 *Germany* v *Commission* (not published in the ECR), paragraph 48). If that action for failure to act had been declared well founded, the Commission
would have been required, pursuant to Article 233 EC, to take the necessary measures to comply with the judgment (see Joined
Cases T‐314/04 and T‐414/04 *Germany* v *Commission*, paragraph 48).

60      That conclusion is not called into question by the fact that the Italian Republic was expressly informed, by the first contested
letter, of the Commission’s refusal to act. A refusal to act, however explicit it may be, can be brought before the Court
under Article 232 EC since it does not put an end to the failure to act (Case 302/87 *Parliament* v *Council* [1988] ECR 5615, paragraph 17).

61      In any event, as the Commission confirmed at the hearing – without being contradicted by the Italian Republic – the state
of inaction disclosed by the first contested letter was only temporary and did not continue after the reasons justifying it
had disappeared, inasmuch as the Commission finally adopted a decision on the payment applications at issue. That final decision
was communicated to the Italian Republic by letter No 8799 of 24 August 2005, against which the Italian Republic brought an
action (Case T‐402/05).

62      Consequently, it must be held that the first contested letter, in so far as it disclosed to the Italian Republic the Commission’s
refusal to act in regard to the payment applications at issue, produced no legal effects which can be contested in the context
of an action for annulment under Article 230 EC.

63      With regard, secondly, to the statement that the Italian Republic had to send the Commission information concerning the advance
payments, it should be pointed out that the first contested letter is thereby referring back to an obligation to provide statements
which arises, in the case of that Member State, from the combined application of the general rule at issue and the decision
contained in the letter of 14 May 2003 (see paragraph 25 above), the effect of which is that the only unsupported advance
payments eligible for co-financing by the Funds are those which relate either to aid in respect of which a final decision
granting that aid was adopted no later than 19 February 2003 or to aid granted in the context of a tendering procedure which
was concluded by that date at the latest. The first contested letter expressly refers to letter No 2772 of 21 March 2005 (see
paragraph 31 above), which in turn refers to the letter of 29 July 2003, rectifying the letter of 14 May 2003 (see paragraph
27 above).

64      It is thus clear from the very content of the first contested letter that it was intended to remind the Italian Republic,
when the payment applications at issue were being considered, that it had an obligation to provide statements under the rules
governing the eligibility of expenditure and, in particular, the general rule at issue.

65      In order to ascertain whether that letter actually does no more than remind the Italian Republic of obligations that flow
from Community rules, without changing the scope of those rules, or whether, on the other hand, that letter is capable of
producing legal effects, certain questions going to the substance of the present case must be decided (see, to that effect,
Case C‐57/95 *France* v *Commission* [1997] ECR I‐1627, paragraphs 9 and 10, and the judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph
36 above, paragraphs 33 to 35).

**Substance**

66      The Italian Republic relies on nine pleas in law in support of its application for annulment of the first, second, third,
fourth and fifth contested letters (collectively, ‘the contested letters’). The first plea alleges lack of a legal basis and
infringement of the provisions governing financial control. The second plea alleges a complete failure to state reasons. The
third plea alleges failure to follow the procedures for the adoption of Commission decisions and infringement of the Commission’s
Rules of Procedure. The fourth plea alleges infringement of Article 32 of the general regulation and of points 1 and 2 of
Rule No 1 of the Annex to Regulation No 448/2004. The fifth plea alleges infringement of the provisions concerning the eligibility
of expenditure. The sixth plea alleges infringement of the principle of proportionality and misuse of powers. The seventh
plea alleges infringement of Regulation No 448/2004, the principles of equal treatment and legal certainty, and the contradictory
nature of the contested letters. The eighth plea alleges infringement of Article 9 of Regulation No 438/2001. Finally, the
ninth plea alleges infringement of the principle of simplified procedures.

67      Since the Commission has contested the admissibility of the third plea in law, it should be considered first.

68      It should also be borne in mind that the solution to the admissibility issue raised in paragraph 65 above depends on the answers
given to questions of substance concerning (i) the interpretation of the Community rules concerning the eligibility of expenditure
and (ii) the inevitable consequences flowing from those rules at the stage of the declaration and certification of expenditure.
Since those questions of substance have been raised by the fourth and fifth pleas in law, on the one hand, and by the eighth
and ninth pleas in law, on the other, those pleas should be considered immediately after the third plea.

*The third plea in law, alleging failure to follow the procedures for the adoption of Commission decisions and infringement
of the Commission’s Rules of Procedure*

Arguments of the parties

69      The Italian Republic claims essentially that, by sending it the contested letters, the Commission was notifying it of decisions
which had clearly not been adopted in accordance with the procedure laid down in its Rules of Procedure.

70      The Commission contends that the third plea should be rejected as inadmissible, pursuant to Article 44(1)(c) of the Rules
of Procedure of the Court of First Instance. The arguments advanced in support of that plea are lacking in clarity and precision
as regards identification of the rules allegedly infringed.

Findings of the Court

71      Article 44(1)(c) of the Rules of Procedure of the Court of First Instance provides that an application is to state a summary
of the pleas in law on which the application is based. That means that the application must specify the grounds on which the
action is based, and that a mere abstract statement of the grounds is not sufficient (Case T‐16/91 *Rendo and Others* v *Commission* [1992] ECR II‐2417, paragraph 130, and Case T‐251/97 *T. Port* v *Commission* [2000] ECR II‐1775, paragraph 90).

72      Moreover, the summary of the pleas in law – albeit concise – on which the application is based must be sufficiently clear
and precise to enable the defendant to prepare its defence and the Court to rule on the application, if necessary, without
any further information. In order to ensure legal certainty and the sound administration of justice, it is necessary – if
an action or, more specifically, a plea in law is to be admissible – that the basic legal and factual particulars relied on
be indicated coherently and intelligibly in the application itself (see, with regard to the admissibility of an action, Case
T-348/94 *Enso Española* v *Commission* [1998] ECR II-1875, paragraph 143, and *T. Port* v *Commission*, cited in paragraph 71 above, paragraph 91).

73      In the present case, the arguments put forward in support of the third plea in law lack clarity and precision as regards identification
of the provisions of the Commission’s Rules of Procedure which are alleged to have been infringed when the contested letters
were adopted, notwithstanding the fact that the Commission’s Rules of Procedure are published, in all the languages of the
European Union, in the *Official Journal of the European Communities* (OJ 2000 L 308, p. 26).

74      The Commission is thus justified in arguing that the way in which the present plea is set out in the application is not sufficiently
clear and precise to enable it to prepare its defence. Nor does it enable the Court to determine whether the plea is well
founded.

75      Consequently, the third plea in law must be rejected as inadmissible.

*The fourth plea in law, alleging infringement of Article 32 of the general regulation and of points 1 and 2 of Rule No 1 of
the Annex to Regulation No 448/2004, and the fifth plea in law, alleging infringement of the provisions concerning the eligibility
of expenditure*

Arguments of the parties

76      The Italian Republic claims that the contested letters infringe Article 32 of the general regulation and Rule No 1 of the
Annex to Regulation No 448/2004 inasmuch as they are based on the general rule at issue. In the event that Regulation No 448/2004
could provide a basis for the general rule at issue, the Italian Republic raises a plea of illegality in respect of that regulation,
on the ground that it infringes Article 32 of the general regulation.

77      The Italian Republic argues that the approach adopted by the Court of Justice in the judgment in Joined Cases C‐138/03, C‐324/03
and C‐431/03, cited in paragraph 36 above, cannot be transposed to the present case. First, point 2 of Rule No 1 of the Annex
to Regulation No 1685/2000, on which that approach is based, was substantially amended by Regulation No 448/2004. Secondly,
the present dispute is concerned solely with Article 30 of the general regulation and the provisions of the Annex to Regulation
No 448/2004, which govern the eligibility of expenditure incurred by final beneficiaries, whereas the judgment of the Court
of Justice interpreted a different provision – Article 32 of the general regulation – which governs the payment by the Commission
of contributions from the Structural Funds.

78      The Italian Republic also denies that Article 32 of the general regulation and Rule No 1 of the Annex to Regulation No 448/2004
can be interpreted along the lines of the general rule at issue.

79      First of all, neither the provisions of the general regulation nor those of Regulation No 448/2004 permit account to be taken
of the activities of final recipients for the purposes of assessing the eligibility of advance payments. On the contrary,
the new provisions laid down in Council Regulation (EC) No 1083/2006 of 11 July 2006 laying down general provisions on the
European Regional Development Fund, the European Social Fund and the Cohesion Fund and repealing the general regulation (OJ
2006 L 210, p. 25) confirm that the provisions of the general regulation did not permit account to be taken of the activities
of final recipients. That only became possible when the concept of ‘beneficiary’ was amended by Regulation No 1083/2006.

80      Secondly, point 2.1 of Rule No 1 of the Annex to Regulation No 448/2004 confirms by implication the eligibility for a contribution
from the Structural Funds of unsupported advance payments, in that it requires final beneficiaries to produce documentary
evidence only of payments made by way of ‘interim payments and payments of the final balance’.

81      Thirdly, the principle of the necessity of State aid – according to which aid may be declared compatible with Community law
only if it benefits undertakings which do not have sufficient financial resources of their own to carry out the proposed investment
– precludes making the eligibility of advance payments conditional upon submission of documents proving that the aid has been
used by the final recipients. By virtue of that principle, advance payments must always precede the investment to be carried
out by the undertakings. Just as it justifies the treatment of payments into venture capital, loan and guarantee funds as
eligible expenditure, as provided for in point 1.3 of Rule No 1 of the Annex to Regulation No 448/2004, the principle of the
necessity of State aid implies recognition of the eligibility of unsupported advance payments.

82      Finally, the provisions of the Annex to Regulation No 448/2004 concerning depreciation, contributions in kind and overheads
show that the special nature of certain expenditure may justify its eligibility not being made conditional upon the submission
of documents proving its use.

83      The Commission contests all the arguments put forward by the Italian Republic. It contends that in so far as the contested
letters refer to the general rule at issue or are an application of that rule, they are consistent with the letter and the
spirit of Article 32 of the general regulation and of Rule No 1 of the Annex to Regulation No 448/2004. Consequently, it asks
that the fourth and fifth pleas in law be rejected. As regards the plea of illegality raised in respect of Regulation No 448/2004,
alleging it to be unlawful in the light of Article 32 of the general regulation, the Commission contends that that plea is
inadmissible since it was raised out of time and because, in any event, Regulation No 448/2004 complies with the general regulation.

Findings of the Court

84      By its fourth and fifth pleas in law, the Italian Republic argues essentially that the Commission misinterpreted Article 32
of the general regulation and Rule No 1 of the Annex to Regulation No 448/2004 by extrapolating the general rule at issue
from those provisions.

85      It should be pointed out at the outset that, in the judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph
36 above, the Court of Justice answered, on the basis of Article 32 of the general regulation and Rule No 1 of the Annex to
Regulation No 1685/2000, the question whether – and, if so, under what conditions – advance payments are eligible for a contribution
from the Funds.

86      In that context, the Court of Justice pointed out, first, that one of the objectives of the general regulation, set out in
recital 43 in the preamble thereto, is to assure sound financial management by providing that expenditure is to be duly justified
and certified (judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, paragraph 44). That
objective explains why the system introduced by Article 32 of the general regulation and by Rule No 1 of the Annex to Regulation
No 1685/2000 is based on the principle of reimbursement of expenses (judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03,
cited in paragraph 36 above, paragraph 45). That implies that, as a rule, eligibility of expenditure paid out by national
bodies is conditional upon proof being submitted to the Commission of its use for the project financed by the European Union.
Such proof can be provided by means of receipted invoices or, where that is not possible, by accounting documents of equivalent
probative value (judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, paragraph 46). Although
it is true that where the Commission pays the national authorities – by way of a payment on account as provided for in Article 32(2)
of the general regulation – an amount equal to 7% of the contribution from the Structural Funds to the assistance in question,
those authorities are not required to submit, at that early stage, documents attesting to expenditure paid out (judgment in
Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, paragraph 47), they must nevertheless submit such
documents when an interim payment or payment of the final balance is made (judgment in Joined Cases C‐138/03, C‐324/03 and
C‐431/03, cited in paragraph 36 above, paragraph 49).

87      In conclusion, the Court decided that the rule that advance payments made by Member States in relation to an aid scheme, and
declared by them as interim payments and payments of the final balance, are not eligible for a contribution from the Structural
Funds unless documents are submitted proving their use by the final recipients is consistent with Article 32 of the general
regulation and points 1 and 2 of Rule No 1 of the Annex to Regulation No 1685/2000 (judgment in Joined Cases C‐138/03, C‐324/03
and C‐431/03, cited in paragraph 36 above, paragraph 50).

88      None of the circumstances invoked by the Italian Republic precludes the approach adopted by the Court of Justice in Joined
Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, from being transposed to the present case, so that the
general rule at issue can be regarded as complying with Article 32 of the general regulation and points 1 and 2 of Rule No
1 of the Annex to Regulation No 448/2004.

89      The arguments based on the entry into force of Regulation No 448/2004 must be rejected. In the first place, Regulation No
448/2004 did not change either the meaning or the scope of Article 32 of the general regulation, in regard to which it merely
laid down detailed implementing rules, as provided for in Article 53(2) of the general regulation. In the second place, the
reference added by Regulation No 448/2004 to point 2 of Rule No 1 of the Annex to Regulation No 1685/2000, concerning the
need to provide documentary evidence of the payments effected by final beneficiaries ‘as interim payments and payments of
the final balance’, appears, having regard to the legislative context in which that rule is placed, to be a mere explanation
of the rule previously applicable, not an amendment of that rule. The Court held, on the basis of points 1 and 2 of Rule No
1 of the Annex to Regulation No 1685/2000, that the principle of reimbursement of expenses applied only to payments made by
the Commission in the form of an interim payment or payment of the final balance, within the meaning of the third subparagraph
of Article 32(1) of the general regulation (judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36
above, paragraphs 48 and 49).

90      The Italian Republic is therefore wrong to argue that Regulation No 448/2004 changed the meaning of points 1 and 2 of Rule
No 1 of the Annex to Regulation No 1685/2000. Moreover, it contradicted itself on several occasions in its own pleadings by
arguing that the relevant provisions of Regulation No 1685/2000 were materially identical before and after the entry into
force of Regulation No 448/2004. The fact that they are identical justifies, in the present case, the application by analogy
of the judgment of the Court of Justice in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above.

91      It is also necessary to reject the argument that the difference between the rules considered by the Court of Justice in its
judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, and those at issue in the present case
makes it impossible to apply that judgment by analogy. It is clear from the Italian Republic’s own pleadings, and in particular
from the fourth and fifth pleas in law put forward in the application, that the present dispute raises the question whether
advance payments are eligible under Article 32 of the general regulation and the detailed rules for its implementation laid
down in Regulation No 448/2004, that is to say, a question similar to the one considered by the Court of Justice in its judgment
in Joined Cases C‐138/03, C‐324/03 and C‐431/03 (see paragraphs 85 and 87 above).

92      Thus, for the same reasons as those set out by the Court of Justice in its judgment, and which are referred to in paragraphs
86 and 87 above, it must be held that the general rule at issue complies both with Article 32 of the general regulation and
with points 1 and 2 of Rule No 1 of the Annex to Regulation No 448/2004. Consequently, without there being any need to rule
on the objection of inadmissibility raised by the Commission, the plea of illegality raised by the Italian Republic in respect
of Regulation No 448/2004 must be rejected.

93      Moreover, none of the arguments put forward by the Italian Republic gives ground for doubt as to whether the general rule
at issue complies with the rules governing the eligibility of expenditure.

94      First of all, the argument that the applicable rules do not permit the activities of final recipients to be taken into account
for the purposes of assessing the eligibility of advance payments must be rejected. That argument was rejected by the Court
of Justice, having already been argued before it on the basis of Article 32 of the general regulation and Rule No 1 of the
Annex to Regulation No 1685/2000 (judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, paragraphs
39, 40 and 44 to 50). Nor can that argument be accepted after the entry into force of Regulation No 448/2004, which did not
change either the meaning or the scope of the relevant applicable rules (see paragraph 90 above).

95      It follows from point 2.1 of Rule No 1 of the Annex to Regulation No 448/2004, concerning proof of expenditure, that payments
effected by final beneficiaries, declared as interim payments and payments of the final balance, must be accompanied by supporting
documents. Having regard to its broad logic, that rule applies generally to payments made by final beneficiaries, both in
the context of operations which they carry out themselves and in the context of the aid which they grant, in particular, in
the context of aid schemes. However, with regard to the latter type of payment, point 2.3 of Rule No 1 of the Annex to Regulation
No 448/2004 states that the supporting documents must correspond to expenditure actually paid out by the final recipients
for implementing the operation.

96      As the Commission rightly pointed out, the production of documents proving that the advance payments have been used by the
final recipients for implementing operations is also provided for in Article 7 of Regulation No 438/2001, which provides that
the audit trail which the Member States are to provide in the context of their management and control systems must enable
the summary amounts certified to the Commission to be reconciled with the individual expenditure records and supporting documents,
including, in the case of State aid schemes or grants of aid, those held by final recipients.

97      In addition, it follows from the earlier findings in the present judgment that the argument *a contrario* that the Italian Republic claims to infer from the provisions of Regulation No 1083/2006, applicable to programmes for the
2007-13 period, must be rejected. Moreover, as the Commission rightly pointed out at the hearing, far from contradicting the
general rule at issue, Article 78(2) of Regulation No 1083/2006 confirms that recognition of the eligibility of advance payments
required the intervention of the Community legislature. In particular, that was necessary in order to define, consistently
with the principles of sound management, the conditions for such recognition, bearing in mind that no agreement was reached
on that point in regard to the programmes for the 2000-06 period (see paragraph 24 above).

98      The textual argument based on point 2.1 of Rule No 1 of the Annex to Regulation No 448/2004 is also without foundation. It
should be pointed out that that provision governs proof of expenditure declared to the Commission in order to obtain from
it ‘interim payments and payments of the final balance’ within the meaning of the third subparagraph of Article 32(1) of the
general regulation. In that context, the reference to ‘interim payments and payments of the final balance’ is explained by
the fact that where, by way of payment on account, the Commission pays an amount equal to 7% of the contribution from the
Funds to the assistance in question, as provided for in the first subparagraph of Article 32(2) of the general regulation,
the national authorities are not required to submit, at that early stage, documents attesting to expenditure paid out (judgment
in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, paragraph 47). Consequently, the terms ‘interim
payments and payments of the final balance’ in point 2.1 of Rule No 1 of the Annex to Regulation No 448/2004 cannot be interpreted
as meaning that advance payments are not covered by the principle of reimbursement of expenses.

99      The arguments based on the ‘principle of necessity’ of State aid must also be rejected as irrelevant. The Italian Republic
has not explained how the alleged ‘principle of necessity’ – even if it exists – requires the principle of reimbursement of
expenses, applicable to applications for interim payments and payments of the final balance by virtue of Article 32 of the
general regulation, to be set aside. The fact that, in the context of aid schemes, the Member States make advance payments
to undertakings which do not have sufficient resources of their own does not mean that the Commission must reimburse those
advance payments, made by way of interim payments and payments of the final balance, even where they do not correspond to
expenditure actually paid out within the meaning of Article 32 of the general regulation.

100    No argument to that effect may be inferred from point 1.3 of Rule No 1 of the Annex to Regulation No 448/2004, because that
provision expressly states that payments into venture capital, loan and guarantee funds (including venture capital holding
funds) which meet the requirements of that regulation are to be treated as expenditure actually paid out within the meaning
of the third subparagraph of Article 32(1) of the general regulation. The eligibility of advance payments for a contribution
from the Funds cannot be inferred from specific implementing legislation which governs only payments by the Member States
into venture capital, loan and guarantee funds.

101    Finally, the arguments based on the provisions of the Annex to Regulation No 448/2004 concerning depreciation, contributions
in kind and overheads cannot be accepted. Even supposing that the eligibility of that expenditure was not conditional upon
submission of supporting documents, such a circumstance is irrelevant for the purposes of assessing the eligibility of advance
payments. In any event, it is clear from points 2.1 and 2.3 of Rule No 1 of the Annex to Regulation No 448/2004 that depreciation,
contributions in kind and overheads must be supported by accounting documents of probative value.

102    It follows from the foregoing that the first contested letter, in so far as it refers to the general rule at issue, did not
change the scope of the Community rules and, to that extent, cannot constitute an actionable measure for the purposes of Article
230 EC.

103    It also follows that the second, third, fourth and fifth contested letters, in so far as they rely on the general rule at
issue as a basis for refusing to charge to the Funds the amounts corresponding to the advance payments at issue, are in conformity
with Article 32 of the general regulation and with points 1 and 2 of Rule No 1 of the Annex to Regulation No 448/2004.

104    The fourth and fifth pleas in law must therefore be rejected as unfounded with regard to the second, third, fourth and fifth
contested letters.

*The eighth plea in law, alleging infringement of Article 9 of Regulation No 438/2001, and the ninth plea in law, alleging
infringement of the principle of simplified procedures*

Arguments of the parties

105    The Italian Republic claims that the contested letters infringe the rules concerning the certification of expenditure, laid
down in Article 9 of Regulation No 438/2001, inasmuch as they require or presuppose that the competent national authorities
specify in respect of each measure in their statements of expenditure the amount of the advance payments at issue which have
been paid or which are to be paid. The detailed rules for certification of expenditure are entirely governed by that article,
which provides that the certificates of statements of interim and final expenditure referred to in Article 32(3) and (4) of
the general regulation are to be drawn up in accordance with the model certificate in Annex II to Regulation No 438/2001.
Above a certain amount, expenditure merely needs to be declared in that certificate by identifying, in respect of each measure,
the source of financing involved (‘Public, Community’, ‘Public, Other public’ and ‘Private’) and the year in which the expenditure
was paid out. Thus, by requiring the competent national authorities to complete their declarations by providing information
concerning the amount of the advance payments made, the Commission imposed on them declaration obligations not provided for
under the rules in force.

106    In addition, the Italian Republic argues that by imposing rules for the certification of expenditure which are more stringent
and more restrictive than those laid down in Article 9 of Regulation No 438/2001, the Commission infringed the principle of
simplification of the management of the Structural Funds. It is possible to deduce the existence of such a principle from
recital 42 in the preamble to the general regulation, the Commission’s oral statements and the proposals that it submitted
to the Committee.

107    The Commission contends that the plea alleging infringement of Article 9 of Regulation No 438/2001 should be rejected as unfounded.
The information concerning the advance payments at issue was essential for the purposes of determining the amount to be charged
to the Community budget. Consequently, for the national authorities, communication of that information marked the fulfilment
of their obligation under Article 9 of Regulation No 438/2001 to certify expenditure.

108    The Commission also disputes the plea alleging infringement of the principle of simplification. The objective of simplifying
the management of the Funds cannot justify compromising in the present case the rules concerning the declaration and certification
of expenditure flowing from the principles of sound financial management.

Findings of the Court

109    The Commission is responsible for the implementation of the general budget of the European Union by virtue of Article 274
EC. Since Article 274 EC draws no distinction according to the form of management employed, the Commission continues to exercise
that general responsibility in the context of the shared management of the Structural Funds. In addition, it follows from
Articles 10 EC and 274 EC that, in the context of the shared management of the Structural Funds, the Member States must cooperate
with the Commission in order to ensure that Community funds are used in accordance with the principles of sound financial
management. Reference is made to those rules in Article 38(1)(g) of the general regulation, dealing with financial control
of assistance.

110    In the context of that financial control, the Member State is to take responsibility in the first instance by certifying to
the Commission, in particular, that expenditure declared as interim payments and payments of the final balance corresponds
to expenditure actually paid out within the meaning of the third subparagraph of Article 32(1) of the general regulation and
points 1 and 2 of Rule No 1 of the Annex to Regulation No 448/2004. The Commission is to adopt a decision on such payment
applications by determining, in the context of its general responsibility for the implementation of the budget, the amount
of the expenditure declared and certified by the Member State which is to be charged to the Community budget.

111    Where the Member States’ management and control systems are reliable and provide a ‘sufficient audit trail’ within the meaning
of Article 7(2) of Regulation No 438/2001, the certification of expenditure provides, in principle, sufficient assurance to
the Commission that the applications for a contribution from the Community are correct, regular and eligible, as provided
in Article 2(1) of Regulation No 438/2001.

112    However, where – as in the present case – the Commission and a Member State adopt different interpretations of a measure determining
the conditions of eligibility of certain expenditure, the reliability of the national management and control system no longer
assures the Commission that all the expenditure declared by the Member State is eligible expenditure within the meaning of
the applicable rules. It is therefore for the Member State concerned, in the exercise of its responsibilities regarding the
certification of expenditure and in sincere cooperation with the Community institutions, to place the Commission in a position
to implement the budget on its own responsibility by providing it with all the information which the Commission considers
necessary to effect payments which are in conformity with the third subparagraph of Article 32(1) of the general regulation.
Any other approach would frustrate the useful effect of Article 38(1) of the general regulation and, more generally, of Articles
10 EC and 274 EC.

113    Both the general rule at issue – which, it has been decided, is in conformity with the third subparagraph of Article 32(1)
of the general regulation and with points 1 and 2 of Rule No 1 of the Annex to Regulation No 448/2004 – and the special rule
concerning the eligibility of unsupported advance payments made before 19 February 2003, which results from a decision of
the Commission which was not contested in Cases C‐324/03 and C‐431/03, may be relied upon against the Italian Republic in
so far as it had been previously informed of them (see paragraphs 25 and 27 above). However, as can be seen from paragraph
112 above, the combined application of those two rules inevitably requires the Italian Republic to communicate with its payment
applications and statements of expenditure the information in its possession which has been requested by the Commission so
as to permit the latter to determine the amount of the advance payments at issue which have been paid or which are to be paid.
The Commission thus rightly contends that the declaration obligation at issue in this case is merely an implementing rule
and the inevitable practical consequence of the Italian Republic’s obligation under Article 9 of Regulation No 438/2001 to
certify expenditure.

114    Accordingly, by asking the Italian authorities to complete the statements of expenditure at issue by indicating, in respect
of each measure, the amount of the advance payments at issue which had been paid or which were to be paid, the first contested
letter was merely drawing their attention to a declaration obligation which was inevitably incumbent upon them under the Community
rules, without changing the scope of those rules. In the light of the foregoing considerations, and those set out in paragraph
102 above, it must be concluded that the first contested letter did not produce the legal effects contested by the Italian
Republic and cannot in that regard constitute an actionable measure within the meaning of the case-law referred to in paragraph
56 above. In so far as the present action has been brought against the first contested letter, therefore, it must be dismissed
as inadmissible. Consequently, it is necessary to consider the action further only in so far as it has been brought against
the second, third, fourth and fifth contested letters.

115    There is no basis for the Italian Republic’s argument that the second, third, fourth and fifth contested letters infringe
Article 9 of Regulation No 438/2001 or a general principle of simplification, as they presupposed that the competent national
authorities would comply with the declaration formality at issue.

116    It has already been found in paragraph 113 above that that formality was an implementing rule and the inevitable practical
consequence of the Italian Republic’s obligation under Article 9 of Regulation No 438/2001 to certify expenditure.

117    In addition, the legality of the declaration formality at issue cannot be called into question on the basis of the principle
of simplification, as alleged by the Italian Republic. Although it is true that the general regulation addresses concerns
relating to the simplification of procedures for making commitments and payments and although the Commission has tried to
eliminate useless administrative complications, the fact remains that the Structural Funds scheme does not contain a principle
according to which procedures for making commitments and payments must be simplified regardless of the consequences for the
proper operation and the sound financial management of the Funds. As has already been pointed out in paragraphs 112 and 113
above, the intention of simplifying procedures expressed in the general regulation cannot call into question a declaration
formality which flows from the implementation of the Structural Funds system, in accordance with the principles of sound financial
management referred to in Article 274 EC.

118    The eighth and ninth pleas in law relied on in support of the application for annulment of the second, third, fourth and fifth
contested letters cannot therefore be upheld.

*The first plea in law, alleging lack of a legal basis and infringement of the provisions governing financial control*

Arguments of the parties

119    The Italian Republic complains that the contested letters do not specify the provision of law which made their adoption possible,
as is required by the principle of legal certainty (Case C‐325/91 *France* v *Commission* [1993] ECR I‐3283, paragraph 26). A mere implied reference to the letter of 29 July 2003 cannot constitute a lawful and adequate
legal basis inasmuch as the general rule at issue, contained in that letter, is contrary to the provisions of the general
regulation and Regulation No 448/2004.

120    The Italian Republic also complains that, by adopting the contested letters, the Commission usurped powers accruing exclusively
to the Member States by virtue of Articles 38 and 39 of the general regulation and the detailed rules for the implementation
thereof contained in Regulation No 438/2001. It follows from those provisions and from the communication from the Commission
to the European Parliament and the Council of 6 September 2004 concerning the respective responsibilities of the Member States
and the Commission in the shared management of the Structural Funds and the Cohesion Fund (COM(2004) 580 final) that the Member
States are primarily responsible for the financial control of assistance paid out of the Funds and that they must ascertain
and certify to the Commission that the expenditure which they declare as interim payments and payments of the final balance
is eligible. The Commission is empowered only to verify the ‘management and control systems’ put in place by the Member States.

121    The Commission contends that the first claim, alleging lack of a legal basis, should be rejected. The contested letters are
part of a regulatory framework which is clearly defined and with which the Italian Republic has long been familiar. They refer
to the letter of 29 July 2003, which itself refers to the interpretative memorandum, and, by virtue of that reference, could
legitimately take as their legal basis the general rule at issue mentioned in those letters.

122    With regard to the second claim, alleging infringement of the provisions governing financial control, the Commission maintains
that the Italian Republic’s argument should be rejected as unfounded. Responsibility for financial control of assistance paid
out of the Funds, which is primarily a matter for the Member States, is irrelevant as regards the eligibility of advance payments.
The Commission reaffirms that the general rule at issue complies with the principle of reimbursement of expenses, which underlies
the rules applicable in this matter.

Findings of the Court

123    With regard to the first claim, alleging lack of a legal basis, it should be borne in mind that, in accordance with established
case-law, Community legislation must be clear and its application foreseeable for all interested parties. The principle of
legal certainty forms part of the general principles of Community law, the observance of which it is the Court’s task to ensure.
It requires that the binding nature of any act intended to produce legal effects must be derived from a provision of Community
law which prescribes the legal form to be taken by that act and which must be expressly indicated therein as its legal basis
(*France* v *Commission*, cited in paragraph 119 above, paragraphs 26 and 30).

124    However, it is also clear from the case-law that failure to specify the precise legal basis for a legislative act need not
necessarily constitute a material defect where it is possible to determine the legal basis for that act on the basis of other
elements thereof. None the less, explicit reference is indispensable where, in its absence, the parties concerned and the
competent Community Court would remain uncertain as to the precise legal basis (Case 45/86 *Commission* v *Council* [1987] ECR 1493, paragraph 9, and Case T‐70/99 *Alpharma* v *Council* [2002] ECR II‐3495, paragraph 112).

125    The second, third, fourth and fifth contested letters contain decisions of the Commission to pay an amount different from
that applied for by the Italian Republic. Those decisions are expressly based on a refusal by the Commission to charge to
the budget the expenditure declared by the Italian Republic in relation to the advance payments at issue. They do not make
express reference to the provision of Community law from which they derive their binding authority and which prescribes the
legal form which they must take.

126    It must therefore be determined whether other elements of the second, third, fourth and fifth contested letters resolve the
uncertainty engendered by the absence from those documents of the legal basis for the decisions adopted by the Commission.

127    It is clear from the statement of facts (see paragraphs 20 to 35 above) that the contested letters are part of a lengthy exchange
of correspondence between the Commission and the Italian Republic on the question of the eligibility of advance payments.
In the interpretative memorandum, the Commission informed the Italian Republic of the general rule at issue, according to
which advance payments not accompanied by documents proving their use by the final recipients would not be eligible for a
contribution from the Funds under the third subparagraph of Article 32(1) of the general regulation. In its letters of 14
May and 29 July 2003, the Commission referred once again to the general rule at issue. It also informed the Italian Republic
of its decision, in accordance with the principle of the protection of legitimate expectations, to treat as eligible the advance
payments made up until 19 February 2003.

128    Read in that context, the contents of the second, third, fourth and fifth contested letters enable the Italian Republic and
the Court to understand that they are applying, in each case, the general rule at issue and that the decisions which they
contain are therefore based on the interpretation of the third subparagraph of Article 32(1) of the general regulation set
out by the Commission in the interpretative memorandum and the letters of 14 May 2003, 29 July 2003 and 25 March 2004.

129    Moreover, the lawfulness of that legal basis cannot be called into question by the Italian Republic in the light of the general
rule and Regulation No 448/2004 because, as has been pointed out in paragraph 92 above, the general rule at issue is in conformity
both with Article 32 of the general regulation and with the detailed rules for the implementation thereof contained in points
1 and 2 of Rule No 1 of the Annex to Regulation No 448/2004.

130    The first claim, alleging lack of a legal basis, cannot therefore be upheld.

131    With regard to the second claim, alleging infringement of the provisions governing financial control, it should be pointed
out that under that heading, the Italian Republic is arguing, essentially, that the Commission did not have the power to refuse
reimbursement, by way of a contribution from the Funds, of the advance payments at issue declared by the Italian authorities.

132    However, inasmuch as it is established that the refusal to reimburse is based on the Commission’s obligation under the third
subparagraph of Article 32(1) of the general regulation and the detailed rules for the implementation thereof to make only
interim or final payments which correspond to expenditure actually paid within the meaning of that article, the Italian Republic’s
argument must be rejected. The certification of expenditure by the Italian Republic does not preclude the possibility that
the Commission, in the context of its general responsibility for the implementation of the budget, might refuse Community
co-financing for expenditure declared and certified which, according to its interpretation of the applicable rules, does not
constitute eligible expenditure.

133    In the present case, the Commission therefore acted in the exercise of its powers of allocation in relation to the implementation
of the Community budget, without encroaching on the powers reserved to the Member States as regards the financial control
of assistance, such as those flowing from Articles 38 and 39 of the general regulation and the detailed rules for the implementation
thereof in Regulation No 438/2001.

134    The second claim must therefore also be rejected. Consequently, the first plea in law must be dismissed in its entirety.

*The second plea in law, alleging a complete failure to state reasons*

Arguments of the parties

135    The Italian Republic argues that the contested letters infringe the obligation laid down in Article 253 EC to state the reasons
on which a Community measure is based, as interpreted by Community case-law, in so far as there is nothing in those letters
to justify the decisions contained therein. In the present case, it was for the Commission to provide explicit reasoning in
the contested letters since the change in the regulatory framework had occurred shortly before their adoption as a result
of the entry into force of Regulation No 448/2004 and since the scope of the decisions contained in those letters goes appreciably
further than earlier decisions (Case 73/74 *Fabricants de papiers peints* v *Commission* [1975] ECR 1491, paragraph 31).

136    The Commission contends that the second plea in law should be rejected on the ground that the contested letters contain a
sufficient statement of the reasons on which they are based, having regard to the context of the case and to the rules governing
the eligibility of expenditure for a contribution from the Structural Funds, which were known to the Italian Republic by virtue
of its having been informed of them in the interpretative memorandum and the letter of 29 July 2003.

Findings of the Court

137    It is settled case-law that the statement of reasons required under Article 253 EC must be appropriate to the act at issue
and must disclose in a clear and unequivocal fashion the reasoning followed by the institution which adopted the measure in
question, in such a way as to enable the persons concerned to ascertain the reasons for the measure and to enable the competent
Community Court to exercise its power of review (Case C-445/00 *Austria* v *Council* [2003] ECR I-8549, paragraph 49; Case C‐304/01 *Spain* v *Commission* [2004] ECR I-7655, paragraph 50; and the judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36
above, paragraph 54).

138    That obligation to state reasons must be appraised by reference to specific circumstances, in particular the content of the
measure in question, the nature of the reasons given and the interest which the addressee of the measure may have in obtaining
explanations. It is not necessary for the reasoning to go into all the relevant facts and points of law, since the question
whether the statement of reasons meets the requirements of Article 253 EC must be assessed with regard not only to its wording
but also to its context and to all the legal rules governing the matter in question (Case C-17/99 *France* v *Commission* [2001] ECR I-2481, paragraph 36; Case C-310/99 *Italy* v *Commission* [2002] ECR I-2289, paragraph 48; and the judgment in Joined Cases C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36
above, paragraph 55).

139    As can be seen from paragraphs 127 and 128, above, the second, third, fourth and fifth contested letters implicitly applied
the general rule at issue, set out in the interpretative memorandum and in the letters of 14 May 2003, 29 July 2003 and 25
March 2004. The exchange of letters between the Commission and the Italian Republic thus enabled the latter to understand
that the refusal of reimbursement was based impliedly, but in a clear and unequivocal fashion, on the fact that the advance
payments at issue declared by the Italian Republic could not be regarded as expenditure actually paid out within the meaning
of the third subparagraph of Article 32(1) of the general regulation and were not therefore eligible for a contribution from
the Funds.

140    Moreover, it can be seen from the Italian Republic’s arguments in the present case that it understood the reasoning underlying
the decisions to refuse reimbursement contained in the second, third, fourth and fifth contested letters. Its application
for the annulment of those decisions is based principally on its challenge of the general rule at issue, which forms the basis
for the decisions in question.

141    Under those circumstances, the second plea in law, alleging a complete failure to state reasons, must be rejected.

*The sixth plea in law, alleging infringement of the principle of proportionality and a misuse of powers, and the seventh plea
in law, alleging infringement of Regulation No 448/2004, the principles of equal treatment and legal certainty, and the contradictory
nature of the contested letters*

Arguments of the parties

142    By its sixth plea in law, the Italian Republic claims that the contested letters infringe the principle of proportionality
inasmuch as they apply a general and abstract principle of the ineligibility of advance payments which is disproportionate
to the objective to be attained. That principle is based, first of all, on the unsubstantiated premiss that, in the case of
advance payments, there is no sufficient guarantee that the amounts made available to the final recipients will actually be
used for the purposes for which the aid was granted. Secondly, it was applied without consideration being given to whether
other appropriate, less restrictive, measures existed and, in particular, without account being taken of the guarantees flowing
from national rules. Italian law provides guarantees for the implementation by the final recipients of advance payments of
assistance co-financed by the Funds. Finally, the principle applied by the Commission precludes the possibility of any analysis
by its officials at the stage when the payment applications submitted by the national authorities are being considered.

143    The Italian Republic adds that the general and abstract principle of the ineligibility of advance payments is evidence of
a misuse of powers inasmuch as it amounts merely to a means of putting pressure directly on the competent national authorities.

144    By its seventh plea in law, the Italian Republic claims that the contested letters infringe the general principle of equal
treatment, as defined in Community case-law, and the provisions of Regulation No 448/2004, and are vitiated by a flagrant
contradiction in that they introduce, without legal justification, a double set of rules in regard to State aid schemes co-financed
by the Structural Funds. Although aid which is generally granted in the form of advance payments is, in principle, not eligible,
the situation is different as regards investment aid for small and medium-sized enterprises (SMEs), granted in the form of
payments into venture capital, loan and guarantee funds (including venture capital holding funds) under point 1.3 of Rule
No 1 of the Annex to Regulation No 448/2004 and point 2.9 of Rule No 8 thereof. The alleged specificity of that sort of financing
cannot justify such a difference in treatment, regard being had to the principle of the necessity of State aid, already referred
to in paragraph 81 above.

145    The Italian Republic also claims that the contested letters infringe the principle of legal certainty. They introduce uncertainty
as to the applicable rules, by allowing it to be supposed that, even in the special case of aid granted in the form of payments
into venture capital, loan and guarantee funds, the production of documents other than those indicated in Regulation No 448/2004
could be required for the purposes of assessing their eligibility.

146    The Commission denies that the contested letters infringe the principle of proportionality. The general regulation and the
detailed rules for its implementation do not prevent final beneficiaries from making advance payments to final recipients.
Such advance payments may even be co-financed by the Funds without any requirement as to proof of their use, up to an amount
of 7% of the contribution from the Structural Funds to the assistance in question, the amount being paid by the Commission
under Article 32(2) of the general regulation when the first commitment is made.

147    Moreover, the Commission points out that the claims put forward in the context of the seventh plea in law are without foundation
and should therefore be dismissed. The rules on eligibility as regards payments into venture capital, loan and guarantee funds
were laid down because of the specific characteristics of that type of financing.

Findings of the Court

–       Infringement of Regulation No 448/2004

148    As has already been noted in paragraph 103 above, the second, third, fourth and fifth contested letters are in conformity
with points 1 and 2 of Rule No 1 of the Annex to Regulation No 448/2004 in so far as they refuse to charge to the Community
budget the amounts corresponding to the advance payments at issue. The claim alleging infringement of Regulation No 448/2004
must therefore be rejected at the outset.

–       Infringement of the principles of proportionality, equal treatment and legal certainty

149    The claims alleging infringement of the principles of proportionality, equal treatment and legal certainty refer essentially
to the application made of the general rule at issue in the second, third, fourth and fifth contested letters. It was on the
basis of that rule that the Commission refused to charge to the Community budget the amounts corresponding to the advance
payments at issue declared by the Italian authorities.

150    It should be pointed out that the third subparagraph of Article 32(1) of the general regulation and the detailed rules for
its implementation confer no discretion on the Commission in regard to determining the conditions of eligibility of advance
payments. By deciding, in the second, third, fourth and fifth contested letters, that the advance payments at issue, declared
as interim payments by the Italian Republic, were not eligible, the Commission could not therefore be in breach of the principle
of proportionality, the principle of equal treatment or the principle of legal certainty.

151    Even if it were to be considered that, in support of its action against individual decisions adopted on the basis of the third
subparagraph of Article 32(1) and the detailed rules for its implementation, the Italian Republic is arguing that those measures
are unlawful and even if the admissibility of those objections of illegality under Article 241 EC was accepted, such objections
could not be upheld on the merits.

152    The general rule at issue is merely a specific application – in the case of aid schemes or aid granted by national bodies
– of the principle of reimbursement of expenses incurred by way of interim payments and payments of the final balance, on
which Article 32 of the general regulation and the detailed rules for its implementation are based, in order to ensure that
Community funds are used in accordance with the principles of sound financial management referred to in Article 274 EC (see
paragraph 86 above). The alleged infringement of the principles of proportionality, equal treatment and legal certainty entailed
thereby must now be considered.

153    With regard to the alleged infringement of the principle of proportionality, it should be noted that that principle, which
is one of the general principles of Community law, requires that measures adopted by Community institutions do not exceed
the limits of what is appropriate and necessary in order to attain the objectives legitimately pursued by the legislation
in question; where there is a choice between several appropriate measures, recourse must be had to the least onerous, and
the disadvantages caused must not be disproportionate to the aims pursued (Case C‐157/96 *National Farmers’ Union and Others* [1998] ECR I-2211, paragraph 60; Joined Cases C‐27/00 and C‐122/00 *Omega Air and Others* [2002] ECR I‐2569, paragraph 62; Case T‐211/02 *Tideland Signal* v *Commission* [2002] ECR II‐3781, paragraph 39; and Case T‐2/03 *Verein für Konsumenteninformation* v *Commission* [2005] ECR II‐1121, paragraph 99).

154    For the purposes of judicial review of compliance with the abovementioned conditions, it should be borne in mind that, for
the purposes of defining the general rules applicable to the Structural Funds, the Community legislature has a wide discretionary
power, consonant with its political responsibilities under Article 161 EC. Consequently, the legality of a measure adopted
in that sphere can be affected only if the measure is manifestly inappropriate having regard to the objective which the competent
institution is seeking to pursue (see, to that effect, in relation to the common agricultural policy, *National Farmers’ Union and Others*, cited in paragraph 153 above, paragraph 61 and the case-law cited therein).

155    In the system put in place by Article 32 of the general regulation, the principle of reimbursement of expenses incurred by
way of interim payments and payments of the final balance helps to ensure that Community funds are used in accordance with
the principles of sound financial management referred to in Article 274 EC. It makes it possible to avoid the Community granting
substantial financial contributions from the Funds of which it cannot obtain repayment, or has difficulty in obtaining it,
where those contributions are not put to their intended use, by limiting the risk to the Community budget to an amount equal
to 7% of the contribution from the Funds to the assistance in question (Opinion of Advocate General Kokott in Joined Cases
C‐138/03, C‐324/03 and C‐431/03, cited in paragraph 36 above, points 77 and 80).

156    That limitation of the risk to the Community budget posed by an irregular use of payments on account cannot be challenged
in the present case on the basis of guarantees that might be available under the Italian rules. Since the guarantees required
at national level are provided by the final recipient in favour of the national bodies which make the advance payments, it
cannot be considered manifestly inappropriate that the latter, rather than the Community, should bear the risks associated
with default on the part of the final recipients and assume responsibility as regards the difficulties relating to a possible
claim for recovery of amounts unduly paid.

157    Accordingly, neither the principle of reimbursement of expenses incurred by way of interim payments and payments of the final
balance, nor the general rule at issue which implements that principle, can therefore be considered a manifestly inappropriate
measure. The principle of proportionality has thus not been infringed.

158    With regard to the alleged infringement of the principles of equal treatment and legal certainty, it should be pointed out
that the general principle of equal treatment requires that comparable situations must not be treated differently unless such
treatment is objectively justified (see, with regard to the civil service, Case T‐184/00 *Drouvis* v *Commission* [2003] ECR‐SC I‐A‐51 and II‐297, paragraph 39; see also, with regard to competition, Joined Cases T‐45/98 and T‐47/98 *Krupp Thyssen Stainless and Acciai speciali Terni* v *Commission* [2001] ECR II‐3757, paragraph 237, and Case T‐48/02 *Brouwerij Haacht* v *Commission* [2005] ECR II‐5259, paragraph 108), whereas the principle of legal certainty requires that legal rules be clear and precise,
and aims to ensure that situations and legal relationships governed by Community law remain foreseeable (Case C‐63/93 *Duff and Others* [1996] ECR I-569, paragraph 20, and Joined Cases T‐141/99, T‐142/99, T‐150/99 and T‐151/99 *Vela and* *Tecnagrind* v *Commission* [2002] ECR II‐4547, paragraph 391). The principle of legal certainty implies that provisions of Community law must not be
drafted in contradictory terms.

159    Point 1.3 of Rule No 1 of the Annex to Regulation No 448/2004 provides that State aid granted in the form of payments into
venture capital, loan and guarantee funds is to be treated as expenditure actually paid out within the meaning of the third
subparagraph of Article 32(1) of the general regulation, provided that the funds concerned meet the requirements of Rules
Nos 8 and 9 of that annex. As the Commission rightly argued, that rule is a particular application of the principle of reimbursement
of expenses incurred by way of interim payments and payments of the final balance, designed to take account of the specific
nature of the financing of undertakings’ capital investments. Such financing is granted to SMEs by independent legal entities
acting as intermediaries. Contrary to the situation in regard to advance payments – which are paid directly to the final recipients
by the national bodies – financing for capital investments is paid into funds whose purpose is to facilitate the access of
the final recipients to the sources of the finance. It is because of that specific situation, which is not comparable to that
of advance payments, that payments into venture capital, loan and guarantee funds can be treated as expenditure actually paid
out within the meaning of the third subparagraph of Article 32(1) of the general regulation.

160    It follows from the foregoing that the provisions of the Annex to Regulation No 448/2004, by virtue of which only payments
into venture capital, loan and guarantee funds can be treated as expenditure actually paid out within the meaning of the third
subparagraph of Article 32(1) of the general regulation, do not infringe the principle of equal treatment.

161    Moreover, the principle of legal certainty cannot be regarded as infringed in the present case inasmuch as the principle of
reimbursement of expenses incurred by way of interim payments and payments of the final balance constitutes a correct implementation
of the applicable rules, as does the general rule at issue. It should be pointed out that the Italian Republic’s attention
was drawn to the existence of the general rule at issue, as well as to the eligibility conditions for advance payments laid
down in the third subparagraph of Article 32(1) of the general regulation, by the interpretative memorandum and the letters
of 14 May 2003, 29 July 2003 and 25 March 2004. In addition, it follows from the considerations set out in paragraph 159 above
that the Italian Republic is not entitled to claim that it was left in a state of uncertainty as to the rules in force by
reason of the difference between the rules on eligibility contained in points 1.2 and 1.3 of Rule No 1 of the Annex to Regulation
No 448/2004, and Rule No 8 thereof.

162    In view of all of the foregoing, it does not appear that the principle of reimbursement of expenses incurred by way of interim
payments and payments of the final balance and the general rule at issue infringe – whether in themselves or in the specific
application thereof which was made in the second, third, fourth and fifth contested letters – the principles of proportionality,
equal treatment or legal certainty.

163    The claims alleging infringement of those principles must therefore be rejected.

–       Misuse of powers

164    According to the case-law, a decision is vitiated by misuse of powers only if it appears, on the basis of objective, relevant
and consistent factors, to have been taken with the sole, or at least the decisive, aim of achieving purposes other than those
stated (Case T‐46/89 *Pitrone* v *Commission* [1990] ECR II-577, paragraph 71, and Joined Cases T‐92/00 and T‐103/00 *Diputación Foral de Álava and Others* v *Commission* [2002] ECR II-1385, paragraph 84).

165    In the present case, the Italian Republic adduces no objective evidence supporting the conclusion that the Commission misused
its powers. It follows that misuse of powers has not been established.

166    It follows that the sixth and seventh pleas in law must be rejected and the action must be dismissed in its entirety, partly
as inadmissible and partly as unfounded.

**Costs**

167    Under Article 87(2) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been
applied for in the successful party’s pleadings. Since the Commission has applied for costs against the Italian Republic and
the latter has been unsuccessful, the Italian Republic must be ordered to pay the costs.

On those grounds,

THE COURT OF FIRST INSTANCE (Second Chamber)

hereby:

1.      **Dismisses the action;**

2.      **Orders the Italian Republic to pay the costs.**

| Meij | Forwood | Pelikánová |
| ---- | ------- | ---------- |

Delivered in open court in Luxembourg on 12 December 2007.

| E. Coulon | | A.W.H. Meij |
| --------- | | ----------- |

| Registrar | | Acting President |
| --------- | | ---------------- |

Table of contents

Legal context

Provisions relating to the eligibility of expenditure for a contribution from the Funds

Provisions concerning payment of the contribution from the Funds

Provisions concerning the certification of expenditure

Provisions concerning financial control

Facts

Procedure and forms of order sought

Admissibility

Arguments of the parties

Findings of the Court

Substance

The third plea in law, alleging failure to follow the procedures for the adoption of Commission decisions and infringement
of the Commission’s Rules of Procedure

Arguments of the parties

Findings of the Court

The fourth plea in law, alleging infringement of Article 32 of the general regulation and of points 1 and 2 of Rule No 1 of
the Annex to Regulation No 448/2004, and the fifth plea in law, alleging infringement of the provisions concerning the eligibility
of expenditure

Arguments of the parties

Findings of the Court

The eighth plea in law, alleging infringement of Article 9 of Regulation No 438/2001, and the ninth plea in law, alleging
infringement of the principle of simplified procedures

Arguments of the parties

Findings of the Court

The first plea in law, alleging lack of a legal basis and infringement of the provisions governing financial control

Arguments of the parties

Findings of the Court

The second plea in law, alleging a complete failure to state reasons

Arguments of the parties

Findings of the Court

The sixth plea in law, alleging infringement of the principle of proportionality and a misuse of powers, and the seventh plea
in law, alleging infringement of Regulation No 448/2004, the principles of equal treatment and legal certainty, and the contradictory
nature of the contested letters

Arguments of the parties

Findings of the Court

– Infringement of Regulation No 448/2004

– Infringement of the principles of proportionality, equal treatment and legal certainty

– Misuse of powers

Costs

---

- Language of the case: Italian.