1.

Under Article 343 TFEU the European Union is to enjoy in the territories of the Member States such privileges and immunities as are necessary for the performance of its tasks, under the conditions laid down in the Protocol on the privileges and immunities of the European Union (‘Protocol’). ( 2 ) The last sentence of Article 1 of the Protocol provides that the property and assets of the European Union are not to be the subject of any administrative or legal measure of constraint without the authorisation of the Court of Justice.

2.

The Court of Justice is called upon on a regular basis to grant such authorisation. ( 3 ) In this regard there is no doubt that, as a measure of constraint against property of the European Union, an attachment of assets held in the EU institutions requires the authorisation of the Court of Justice.

3.

Thus far no ruling has been given as to whether the requirement to obtain authorisation also applies where budgetary resources have already been transferred to the Member States for the purpose of implementing EU objectives. The assumption that such resources have been so transferred forms the basis of the present request for a preliminary ruling which relates to funding awarded under the European Social Fund.

4.

The general provisions on the Structural Funds of the European Union, including the European Social Fund (‘Structural Funds’ or ‘Funds’), that are relevant to this case were set out in Regulation (EC) No 1083/2006 ( 4 ) for the 2007-2013 programming period. This regulation was replaced by Regulation (EU) No 1303/2013 ( 5 ) for the 2014-2020 programming period.

5.

Under Article 9(1) of Regulation No 1083/2006 the Funds are to provide assistance which complements national actions, integrating into them the priorities of the Union. Under Article 11(1) the objectives of the Funds are to be pursued in the framework of close partnership between the Commission and the Member States.

6.

Article 14 of Regulation No 1083/2006 provides as follows:

‘1.   The budget of the European Union allocated to the Funds shall be implemented within the framework of shared management between the Member States and the Commission, in accordance with [the EU Financial Regulation ( 6 )].

2.   The Commission shall exercise its responsibility for implementing the general budget of the European Union in the following ways:

…’

7.

Article 32 of Regulation No 1083/2006 reads as follows:

‘1.   The activities of the Funds in the Member States shall take the form of operational programmes …

2.   Each operational programme shall be drawn up by the Member State or any authority designated by the Member State …

…

4.   The Commission shall appraise the proposed operational programme to determine whether it contributes to the goals and priorities of the national strategic reference framework and the Community strategic guidelines on cohesion. …’

8.

Article 56(3) of Regulation No 1083/2006 provides:

‘Expenditure shall be eligible for a contribution from the Funds only where incurred for operations decided on by the managing authority of the operational programme concerned or under its responsibility, in accordance with [fixed] criteria …’

9.

Under Article 60(b) of Regulation No 1083/2006 the function of the Member State’s managing authority is to verify ‘that the co-financed products and services are delivered and that the expenditure declared by the beneficiaries for operations has actually been incurred and complies with [the relevant] rules …’

10.

Article 70 of Regulation No 1083/2006 reads:

‘1.   Member States shall be responsible for the management and control of operational programmes, in particular through the following measures:

…

2.   When amounts unduly paid to a beneficiary cannot be recovered, the Member State shall be responsible for reimbursing the amounts lost to the general budget of the European Union, when it is established that the loss has been incurred as a result of fault or negligence on its part.’

11.

In relation to payments by the Commission Article 76(2) of Regulation No 1083/2006 provides as follows:

‘Payments shall take the form of prefinancing, interim payments and payment of the final balance. They shall be made to the body designated by the Member State.’

12.

Article 77(1) of Regulation No 1083/2006 reads as follows:

‘Interim payments and payments of the final balance shall be calculated by applying the co-financing rate laid down in the decision on the operational programme concerned for each priority axis to the eligible expenditure mentioned under that priority axis in each statement of expenditure certified by the certifying authority.’

13.

Article 80 of Regulation No 1083/2006 provides:

‘Member States shall satisfy themselves that the bodies responsible for making the payments ensure that the beneficiaries receive the total amount of the public contribution as quickly as possible and in full. No amount shall be deducted or withheld and no specific charge or other charge with equivalent effect shall be levied that would reduce these amounts for the beneficiaries.’

14.

Article 98 of Regulation No 1083/2006 lays down the following provisions:

‘1.   The Member States shall in the first instance bear the responsibility for investigating irregularities, acting upon evidence of any major change affecting the nature or the conditions for the implementation or control of operations or operational programmes and making the financial corrections required.

2.   The Member State shall make the financial corrections required in connection with the individual or systemic irregularities detected in operations or operational programmes. …

The resources from the Funds released in this way may be reused by the Member State until 31 December 2015 for the operational programme concerned in accordance with the provisions referred to in paragraph 3. …’

15.

Lastly, Article 99(1) to (3) of Regulation No 1083/2006 reads:

‘1.   The Commission may make financial corrections by cancelling all or part of the Community contribution to an operational programme …

2.   The Commission shall base its financial corrections on individual cases of irregularity identified, taking account of the systemic nature of the irregularity to determine whether a flat-rate or extrapolated correction should be applied.

3.   The Commission shall, when deciding the amount of a correction, take account of the nature and gravity of the irregularity and the extent and financial implications of the deficiencies found in the operational programme concerned.’

16.

Mr Dell’Acqua has a claim against Eurocom Srl (‘Eurocom’), which, in turn, has a claim against the Regione Lombardia (Region of Lombardy, Italy). With a view to recovering his claim Mr Dell’Acqua therefore initiated third-party attachment proceedings before the Tribunale di Novara (District Court, Novara, Italy) seeking attachment of the corresponding amount owed by the Regione Lombardia. Additional creditors of Eurocom subsequently intervened in the attachment proceedings.

17.

In the course of the attachment proceedings the Regione Lombardia acknowledged that it owed a debt to Eurocom but asserted that the debt related to sums belonging to the European Social Fund. It stated that these were therefore resources hypothecated specifically for employment development and support which it was permitted to disburse to the beneficiary only. The claim asserted by Mr Dell’Acqua, it contends, was not, therefore, according to Article 80 of Regulation No 1083/2006, subject to attachment.

18.

In view of these assertions the Tribunale di Novara (District Court, Novara) proceeds on the premiss — which appears, thus far, to remain unchallenged in the national proceedings — that the amounts involved in Mr Dell’Acqua’s claim are sums belonging to the European Social Fund. At the time the case was brought before the national court, the sums at issue had allegedly already been transferred from the European Union to the Member State’s paying agency for forwarding to the beneficiary.

19.

Against that background the Tribunale di Novara (District Court, Novara) wonders whether, in accordance with Article 132 of Regulation No 1303/2013, which corresponds to Article 80 of Regulation No 1083/2006, and Article 1 of the Protocol, the amounts concerned are, to a relative degree, excluded from attachment, which implies prior authorisation for the attachment from the Court of Justice. It has therefore referred the following question to the Court for a preliminary ruling:

‘Is prior authorisation in accordance with the [last] sentence of Article 1 of the Protocol on the privileges and immunities of the European Union … necessary or not, when in attachment proceedings against a third party the sums to be attached are no longer held by [the relevant EU authority], but have already been transferred to the national paying agencies?’

20.

Italy and the European Commission submitted written observations in the proceedings before the Court.

21.

In view of the observations made by the referring court, Italy and the Commission, the period of eligibility (whether 2007-2013 or 2014-2020) to which Eurocom’s claim against the Regione Lombardia was to be ascribed was unclear. It was accordingly unclear whether Regulation No 1083/2006 or Regulation No 1303/2013 was applicable.

22.

In response to a question in that regard from the Court, Italy stated that the claim concerned was to be ascribed to the 2007-2013 operational regional programme, File No 643, ‘Phase 2 Continuing Education’. For its part, the Commission replied, having regard to information supplied by the Regione Lombardia on 11 May 2017, ( 7 ) that the projects implemented by Eurocom came under the operational programme bearing reference CCI 2007 IT 052 PO 006 which had been adopted by Commission Decision C(2007) 5465 of 6 November 2007 ( 8 ) pursuant to Article 32(5) of Regulation No 1083/2006.

23.

However, the Commission observed further, on the basis of the information from the Regione Lombardia, that, as regards the amounts at issue in the main proceedings, Italy had not applied for financing from the European Union up to the expiry on 31 March 2017 of the period allowed for payment requests in relation to the 2007-2013 eligibility period. In the information attached by the Commission an employee of the Regione Lombardia discloses that all sums that Eurocom received from the European Social Fund as part of operational regional programme CCI 2007 IT 052 PO 006 for the 2007-2013 eligibility period had already been disbursed and therefore could no longer be affected by any application for third-party attachment. The sums claimed from the Regione Lombardia in the main proceedings were, therefore, merely national expenditure, as opposed to expenditure that would be claimed from the European Social Fund for the 2007-2013 eligibility period and could therefore receive co-financing from the European Union.

24.

By its question the referring court seeks to ascertain whether, in circumstances such as those arising in the main proceedings, prior authorisation from the Court, as provided for in the last sentence of Article 1 of the Protocol, is necessary where an application is made for the attachment of assets which originally belonged to the European Union but had already been transferred to a Member State’s paying agency when the attachment proceedings were brought.

25.

However, the information from the Regione Lombardia set out above ( 9 ) raises doubts regarding the factual assumptions underlying the question referred by the national court. The information concerned casts doubt in particular on the assumption that the assets which are the subject of the application for attachment in the main proceedings are sums which the Regione Lombardia owes to Eurocom in connection with a programme funded by the European Social Fund and, thus, by means of Union resources. At least all the amounts associated with projects implemented by Eurocom in connection with operational programme CCI 2007 IT 052 PO 006 funded by the European Social Fund were evidently already disbursed to the beneficiary by the Regione Lombardia. On that basis, they can no longer be the subject of third-party claims made against that region.

26.

If the precise definition of the nature of the sums that are the subject of the application for attachment in the main proceedings is, on the basis of national law, relevant to the decision by the referring court, that court is responsible for establishing the type of sums that are, ultimately, under consideration, in the light of the newly acquired information in the present proceedings and any further investigations that may be necessary.

27.

However, as regards EU law and, by extension, the question referred to the Court, it is immaterial whether the sums for which Mr Dell’Acqua is seeking an attachment order against the Regione Lombardia are assets which that region owes to Eurocom for operations funded under the European Social Fund and, thus, using EU resources, or whether they entail other Eurocom claims against the Regione Lombardia.

28.

Indeed, as the Commission already correctly pointed out in its original observations, even in the first case, the sums at issue would not be ‘assets of the Union’ within the meaning of the last sentence of Article 1 of the Protocol. This is apparent from both the wording (A) and a teleological interpretation (B) of that provision.

29.

In the first instance it appears to be relatively obvious that the view adopted by Italy in these proceedings, to the effect that the amounts concerned in the main proceedings, which, as the referring court and Italy assume, come from European Social Fund resources, are ‘assets of the Union’, cannot be supported by the wording of the last sentence of Article 1 of the Protocol: as soon as assets of the European Union have been transferred to third parties, they are no longer ‘assets of the Union’ for the purposes of attachment. If, for example, the European Union paid an EU official his salary or paid a supplier’s invoice, it seems inconceivable that those persons could rely on the protection against attachment guaranteed under EU law of ‘assets of the Union’ in order to safeguard against requests for attachment made by their creditors or, in turn, by their creditors’ creditors.

30.

As Italy explains, the view that resources, which the European Union has transferred to a Member State’s paying agency as funding awarded under the Structural Funds, retain their status as ‘assets of the Union’ is based on the teleological interpretation, rather than the wording, of the last sentence of Article 1 of the Protocol.

31.

It explains further that the purpose of that provision is to prevent any interference with the functioning and independence of the European Union. ( 10 ) Such interference may arise in particular as a result of measures of constraint which affect the financing of common policies or the implementation of action programmes established by the European Union. ( 11 )

32.

Still according to Italy, resources within the European Structural Funds are, in this regard, ‘hypothecated’ in so far as they have to be used to implement the policies of the European Union. This ‘hypothecation’ expires only upon the full realisation of the objective pursued by the European Union and therefore only once the sums concerned have passed into the ownership of the beneficiary. Thus, an attachment of sums earmarked for beneficiaries may hamper the financing of the common structural policy. Such sums must therefore come under the protection afforded by EU law against attachment irrespective of whether they are still held by the EU institutions or have already reached the Member States’ paying agencies.

33.

This allegedly applies a fortiori as, when distributing funds from the European Social Fund, the national paying agencies in any event act merely as managers of the European funds and thus contribute to the exercising of a competence of the EU institutions. In this context, they therefore exercise a ‘European’ rather than an ‘independent’ function, acting as an extension of the Commission.

34.

This line of reasoning — which appears plausible on a first view — is, on closer scrutiny, based on a misconception of the functioning of the European Structural Funds, at least in such circumstances as those arising in the main proceedings. It is, in particular, incorrect to proceed on the premiss that the Member States and their authorities are in this context afforded a purely ‘intermediary function’ consisting in no more than simply ‘passing on’ to the beneficiaries funds granted by the European Union. On the contrary, the Member States enjoy considerable discretion in implementing the European Union’s Structural Funds policy. Accordingly, main responsibility for the successful execution of the projects funded as part of the Structural Funds programmes lies with the competent authorities of the Member States.

35.

The following division of responsibilities as between the Commission and the Member States is apparent from the EU legislation governing the implementation of Structural Funds policy: in that regard the Commission is responsible for ensuring that the operational programmes proposed by the Member States and their implementation meet the objectives of Structural Funds policy and that the management and control systems to be established by the Member States function properly. ( 12 )

36.

However, responsibility for the actual implementation of operational programmes funded by the EU’s Structural Funds lies with the authorities designated for that purpose by the Member States. ( 13 ) These authorities are responsible not only for selecting the specific projects to be implemented as part of the operational programmes, ( 14 ) but also for monitoring their implementation and the expenditure incurred by the beneficiaries. ( 15 )

37.

Although such expenditure, even in respect of the Commission, is supported by the relevant documentary evidence, ( 16 ) the Commission carries out audits on individual projects only on a random basis and only in the context of and for the purpose of checking the proper functioning of the Member States’ management and control systems. Where there is no indication of any shortcomings in those systems, the Commission may otherwise have recourse to the reports of the Member States. Moreover, its audits are proportionate to the financial contribution of the Union and differentiated according to the level of that contribution. ( 17 ) The Commission accordingly makes its payments not in the light of an audit as to the accuracy of the expenditure documentation held by the payment recipients, but in the light of the reports and statements of expenditure held by the Member States. ( 18 )

38.

On that basis, any financial corrections that may be imposed on beneficiaries entrusted with implementing the specific projects are made by the Member States, not by the Commission. ( 19 ) The Member States may reuse cancelled resources under the same operational programme ( 20 ) but are also responsible for any losses incurred on their part. ( 21 )

39.

In contrast, financial corrections by the Commission consist of flat-rate or extrapolated reductions to the global resources that the European Union mobilises for a specific operational programme. ( 22 ) The aim of these corrections is not to correct defective implementation at beneficiary level but to penalise shortcomings in the functioning of the national management and control systems and the Member States’ failure to rectify them.

40.

In its evaluation of Member States’ operational programmes, the Commission also examines the extent to which resources were used, the effectiveness and efficiency of Fund programming and the socio-economic impact. The intended aim of that evaluation is to draw conclusions for the policy of economic and social cohesion. ( 23 )

41.

Within this system, conceiving the Commission’s payments to the Member States to be a direct reimbursement of expenditure for the implementation of individual projects funded by the Structural Funds which the Member States would pass on without change to the beneficiaries responsible for those projects does not, therefore, reflect the reality of the situation. On the contrary, the payments from the EU budget make a flat-rate contribution to the Member States’ global budget for the respective operational programmes; it falls to the Member States to allocate those funds to specific projects. ( 24 )

42.

From the foregoing considerations it is clear that, in third-party attachment proceedings initiated, as in the main proceedings, by the creditor of a beneficiary against a national paying agency, even on a teleological interpretation of the last sentence of Article 1 of the Protocol, it is incorrect to refer to the amounts concerned as ‘assets of the Union’.

43.

After all, the purpose of that provision is, as already mentioned above, to prevent interference with the functioning of the Union which may also arise as a result of measures of constraint affecting the financing of common policies or the implementation of action programmes established by the European Union. ( 25 ) The individual projects selected by the Member States to receive funding from the Structural Funds also, by definition, play a part in the implementation of structural policy and the implementation of the European Union’s action programmes created to this end. This is demonstrated by the fact that Member States are required to publicise the funding received from the Structural Funds. ( 26 )

44.

However, the relationship between the co-financing provided by the European Union and the implementation of the individual projects is too indirect to be able to conclude that the sums that the Member States’ authorities owe to the beneficiaries for implementing those projects would need to be covered by the protection against attachment afforded to assets of the European Union within the meaning of the Protocol, so as to prevent interference with the functioning and independence of the European Union.

45.

Within the Structural Funds system and consonant with the principle of subsidiarity underlying this system, protection against attachment as provided for in the Protocol in relation to sums granted to a beneficiary for implementing a project ( 27 ) would not, even on a broad interpretation of the spirit and purpose of that provision, be the appropriate instrument for guaranteeing the implementation of EU policies. Within this system, it falls, on the contrary, primarily to the Member States to assess the extent to which the individual projects contribute to the implementation of the policies and action programmes of the European Union and whether, as regards beneficiaries’ expenditure in those projects, EU co-financing is to be sought or, if already applied for, is to be corrected.

46.

In this context it accordingly falls to the Member States to examine whether an attachment of sums granted to the beneficiaries for implementing their projects would hamper the implementation of EU policies and programmes. The Commission, however, could review such assessments by the Member States only within the scope of its verification of their reports on the implementation of operational programmes and, as the case may be, within the scope of its audits of the Member States’ management and control systems.

47.

It should be recalled in this regard that, in general, public assets cannot automatically be the subject of measures of constraint in the Member States either. ( 28 ) This would therefore suggest that an application by a third party against a national authority for attachment of sums owed to a beneficiary in the context of a project funded out of Structural Funds resources will, in principle, have to be approved by a court in the Member State concerned; the court must assess the extent to which an attachment would hamper the implementation of public functions. In so doing, it must — having regard to the principles of equivalence and effectiveness — also weigh the interest of the Member States and the European Union in implementing the project against the need to protect the beneficiary’s creditor.

48.

As the Commission rightly observes, this position is also apparent in the case-law of the Court in relation to the requirement, cited by the Regione Lombardia, the referring court and Italy alike, that Member States are to satisfy themselves that the beneficiaries receive the total amount of the public contribution as quickly as possible and in full, and that no amount is to be deducted or withheld and no specific charge with equivalent effect is to be levied that would reduce those amounts. ( 29 )

49.

As the Court has already had occasion to observe in relation to similar provisions concerning shared management, those provisions are intended to prevent the Member States from making any deductions from the amounts concerned which are directly and inseparably linked to the amounts disbursed, for instance, fees charged for the services provided by the disbursing authority. ( 30 ) However, those provisions are not intended to limit the varying debt-recovery procedures which exist in national law. Nevertheless, a practice of that nature must not interfere with the proper functioning of the EU policy concerned or undermine the effectiveness of EU law. ( 31 )

50.

In the light of the foregoing considerations I propose that the Court should answer the question referred by the Tribunale di Novara (District Court, Novara, Italy) as follows:

In a situation where third-party proceedings are brought against an authority of a Member State for the attachment of sums which that authority owes to a beneficiary for implementing a project that was funded as part of an operational programme under the European Social Fund using EU resources, no prior authorisation from the Court of Justice in accordance with the last sentence of Article 1 of the Protocol on the privileges and immunities of the European Union is necessary. It falls to the national court to assess in the context of national attachment proceedings, having regard to the principles of equivalence and effectiveness, whether EU law precludes the attachment sought, or whether that attachment would interfere with the proper functioning of the policy for strengthening the European Union’s economic, social and territorial cohesion.