Opinion of the Advocate General — ECLI:EU:C:2005:550
Date: 2005-09-15
Language of the case: Italian
Based on: Treaty establishing the European Economic Community (1957)
Subject matter: Economic, social and territorial cohesion;European Regional Development Fund (ERDF)
Procedure: Action for annulment - inadmissible
Origin: Italy

Summary of the Judgment Actions for annulment – Actionable measures – Acts intended to produce legal effects – Measures relating to the date of eligibility of new expenditure when programming documents for Community structural assistance are amended – Not included (Art. 230 EC) An action for annulment must be available in the case of all measures adopted by the institutions, whatever their nature or form, which are intended to have legal effects. That is not the case with regard to a document issued by the Commission in connection with assistance provided under the Structural Funds relating to the date of eligibility of new expenditure when programming documents are amended, which uses the words ‘it is proposed to introduce the following rules’, since a proposal is a clear and specific indication that the document is not intended to have legal effects. Moreover, before that document was distributed to the Member States, the Commission gave an express warning that such a document was internal, was not always the final version, and merely reflected the Commission’s opinion. The same applies to the three Commission notes on this matter sent to the national authorities. First, those notes merely refer to that document, which is not itself intended to have legal effects. Second, those notes were sent by the Commission in the course of the written consultation procedure for the amendment of the programme complements, initiated by the Monitoring Committees concerned. It is clear from Articles 15(6), 34(3) and 35 of Regulation No 1260/1999 laying down general provisions on the Structural Funds, read together, that, in such a procedure, the Commission has a mere consultative role and is not empowered to adopt any legally binding act, except where any amendments relate to the elements contained in the decision on the contribution of the Structural Funds within the meaning of Article 34(3) of that regulation, which is not, however, alleged in the present case. (see paras 19, 21-28)