Opinion of the Advocate General — ECLI:EU:C:2022:776
Date: 2022-10-13
Language of the case: Italian
Subject matter: Economic, social and territorial cohesion;Cohesion Fund
Procedure: Reference for a preliminary ruling
Origin: Italy

summary of the relevant legislative 
background. 
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3.1. The case concerns assistance granted for the construction and furnishing of a 
hotel and its leisure facilities in the municipality of Rossano. 
The appellant in cassation had been granted a capital contribution for the hotel’s 
construction, had carried out the work and had purchased the furnishings. It had 
provided the administrative authority of the Region of Calabria with the 
documents required by the notice and the decree granting assistance (that is, 
receipted invoices for movable property and the bill of quantities and 
measurement booklet for the works carried out). It passed the inspection by the 
competent technical committee, but never received payment of the assistance for 
the works and equipment, since the Region had insisted on other accounting 
records having equivalent effect to the invoices. 
3.2. The funding was granted by the Region under the Regional Operational 
Programme […], local tourism networks and systems […] [reference to the aid 
programme]. 
The relevant regulatory framework was that of the Structural Funds 2000-2006 
laid down in Council Regulation (EC) No 1260/1999 of 21 June 1999. 
Regulation (EC) No 1685/2000 of 28 July 2000 lays down the implementing 
provisions on [Or.7] the eligibility of expenditure relating to operations co-
financed by the Structural Funds. 
By Decision C(2000) 2050 of 1 August 2000 and Decision C(2000) 2345 of 
8 August 2000, the European Commission approved the Community Support 
Framework and Operational Programme for Calabria. 
3.3. Article 4(4)(c) of Legge 15 marzo 1997, n. 59 (Law No 59 of 15 March 
1997) devolved the administrative functions and tasks relating to regional, 
structural and EU cohesion policies to the regions; this was subsequently 
implemented by Decreto Legislativo 31 marzo 1998, n. 123 (Legislative Decree 
No 123 of 31 March 1998). 
3.4. The Region, having taken note of the Regional Operational Programme and 
completed its programming, by Regional Law No 7 of 2 May 2001 (Article 31 
quater) proposed to support and develop small and medium-sized enterprises 
through aid granted in accordance with Regulation (EC) No 70/2001. It stipulated 
that the Regional Executive should enact measures to establish the implementing 
procedures for the granting of aid in compliance with all the conditions laid down 
by Regulation (EC) No 68/2001. 
3.5. By Regional Executive Decision No 398 of 14 May 2002, the Region 
approved the contract notice, which, in Article 8 thereof, listed the following as 
eligible expenses: (1) land; (2) buildings and equipment; (3) fixtures and fittings; 
(4) planning and surveys. 
[…] [detailed list of eligible expenditure] 
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Article 9 of the contract notice required the quantification of works for buildings 
and equipment with reference to the 1994 price list of the Office of Public Works 
for the Region of Calabria, plus 15% [Or.8], and, for any items not mentioned, the 
current market prices estimated by the architect. 
Article 11 of the same notice provided that […] payment of assistance was 
governed by the measure granting assistance and laying down the requirements 
with which the beneficiary had to comply. 
3.6. Decree No […] granting assistance listed the documents to be produced by 
the beneficiary, making no specific provision for works other than the production 
of accounting records for those works (measurement booklet and accounting 
ledger, duly signed on each page by the director of works and the beneficiary 
undertaking). 
Article 4 specified that assistance for the works, within the limits allowed by the 
decree, would be calculated on the basis of the measurement booklet and the 
accounting ledger, with the unit prices referred to in Article 9(b) of the notice, 
subject to audit by the inspection committee. 
4. The judgment of the Corte di appello di Reggio Calabria (Court of Appeal, 
Reggio Calabria), on appeal before the Supreme Court of Cassation, while 
acknowledging that, in the present case, the works financed had actually been 
carried out in accordance with the approved project and corresponded to that 
project in terms of quantity and quality, […] ruled that assistance could not be 
paid to Eurocostruzioni for the construction works directly carried out by that 
undertaking, notably because of the requirements laid down in Regulation (EC) 
No 1685/2000, expressly referred to in the contract notice and the decree granting 
assistance, which, for the payment of assistance, required the expenditure 
documents to be in the form of receipted invoices, and where this could not be 
done, to be in the form of accounting documents of equivalent probative value. 
[…] [OR.9] […] 
Therefore, the provision of that EU regulation should be taken into account for the 
purpose of deciding the case, both because it is directly applicable to the matter at 
hand and because of the reference per relationem in the contract notice and the 
decree granting assistance. 
The Court of Appeal regarded the content of the provisions [of EU law] as a 
decisive factor, and in particular Commission Regulation (EC) No 1685/2000 of 
28 July 2000 laying down detailed rules for the implementation of Council 
Regulation (EC) No 1260/1999 as regards eligibility of expenditure of operations 
co-financed by the Structural Funds (subsequently repealed by Article 54 of 
Commission Regulation (EC) No 1828/2006 of 8 December 2006), intended to 
regulate the payments in question and referred to in the decree granting assistance. 
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5. The appellant in cassation submits that, for expenditure eligible for 
assistance relating to buildings and equipment which it constructed itself, and 
which is therefore different from the purchase of land, buildings, furnishings and 
equipment, proof of expenditure could be provided by means other than that 
documented by receipted invoices and equivalent documents. 
In support of that assertion, the appellant in cassation argues that the provisions of 
the regulation in question are not exhaustive (see point 2.1 of Rule No 1 of the 
Annex referred to in Article 1, ‘Proof of expenditure’), quoting it thus: ‘In linea 
generale, i pagamenti effettuati dai beneficiari finali, a titolo di pagamenti 
intermedi e pagamenti del saldo, devono essere comprovati da fatture quietanzate. 
Ove ciò non risulti possibile, tali pagamenti devono essere comprovati da 
documenti contabili aventi forza probatoria equivalente.’ (‘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.’) 
The official Italian wording is almost identical: ‘Di norma, i pagamenti effettuati 
dai beneficiari finali devono essere [Or.10] comprovati da fatture quietanzate. 
Ove ciò non sia possibile, tali pagamenti devono essere comprovati da documenti 
contabili aventi forza probatoria equivalente.’ (‘As a rule, payments by final 
beneficiaries shall be [Or.10] supported by receipted invoices. Where this cannot 
be done, payments shall be supported by accounting documents of equal probative 
value.’) 
Similarly, the French and English versions read as follows: 
‘En règle générale, les paiements effectués par les bénéficiaires finals sont 
accompagnés des factures acquittées. Si cela s’avère impossible, ces paiements 
sont accompagnés de pièces comptables de valeur probante équivalente’, 
and 
‘As a rule, payments by final beneficiaries shall be supported by receipted 
invoices. Where this cannot be done, payments shall be supported by accounting 
documents of equivalent probative value.’ 
According to the appellant in cassation, the phrases ‘as a general rule’ and ‘as a 
rule’ express only a general principle, which is not necessarily exhaustive and is 
liable to differ in individual cases. 
This interpretation cannot be taken for granted, since the phrase, like that used in 
other EU languages, means ‘without further elucidation and without going into the 
details of individual cases’. It is certainly not clear that it permits any derogation 
from what has been established for cases generally. 
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Moreover, EU law does not seem to include – at least not explicitly – among the 
measures financed the direct construction of a building by the final beneficiary 
using its own materials, tools and labour, whereas the purchase of second-hand 
equipment (Rule No 4), the purchase of land (Rule No 5), the purchase of real 
estate (Rule No 6), and subcontracting (point 3 of Rule No 1) are provided for; 
moreover, under Rule No 1 of the Annex (points 1.5 to 1.8), various specific 
examples of non-billable costs are mentioned (depreciation, contributions in kind, 
overheads). 
[Or.11] 
6. In those circumstances, the [Supreme] Court of Cassation finds it necessary 
to refer questions of interpretation for a preliminary ruling under Article 267 
TFEU, requesting the Court of Justice of the European Union to answer the 
following questions: 
1. Does Commission Regulation (EC) No 1685/2000 of 28 July 2000 laying 
down detailed rules for the implementation of Council Regulation (EC) 
No 1260/1999 as regards eligibility of expenditure of operations co-financed by 
the Structural Funds, and in particular the provisions of point 2.1 of Rule No 1 of 
the Annex thereto (‘proof of expenditure’), require that proof of payment by final 
beneficiaries must necessarily be furnished by means of receipted invoices, even if 
the funding was granted to the beneficiary to construct a building using its own 
materials, tools and labour, or may there be a derogation, other than the one 
specifically provided for where this is not possible, which requires the 
presentation of ‘accounting documents of equivalent probative value’? 
2. What is the correct interpretation of the phrase ‘accounting documents of 
equivalent probative value’? 
3. Specifically, do the abovementioned provisions of [Regulation (EC) 
No 1685/2000] preclude national and regional law and consequent implementing 
measures which, in the event that funding has been granted to the beneficiary in 
order to construct a building using its own materials, tools and labour, provide for 
a system of auditing the publicly funded expenditure consisting of: 
(a) prior quantification of the works on the basis of a regional price list for 
public works and, for items not provided for therein, the current market prices 
estimated by the architect; 
(b) a subsequent report, with presentation of the accounts for the works, 
consisting of the measurement booklet and the accounting [Or.12] ledger, duly 
signed on each page by the director of works and the beneficiary undertaking, and 
the audit and confirmation of the works carried out, on the basis of the unit prices 
referred to in point (a), by an inspection committee appointed by the competent 
regional administrative authority? 
[…] [standard wording] 
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Decided in Rome […] on 12 November 2020 
[…]