16On 14 November 2002, the applicant brought an action for annulment of the contested decision. By the contested order, the Court of First Instance dismissed that action as inadmissible. The main grounds for that order are as follows:55 [T]he contested decision ... had the effect, on the one hand, of disengaging the ERDF to the extent of the amounts of assistance not yet granted in respect of expenditure which had become ineligible and, on the other, of allowing the Commission to recover the amounts already paid by the ERDF in respect of that expenditure. The contested decision thus had the effect of “cutting off” the ERDF financial assistance (order in Case T-105/01 SLIM Sicilia v Commission [2002] ECR II-2697, paragraph 47).56 With regard to the determination of the effect of that decision on the applicant, it must be pointed out that, under the original decision granting the disputed assistance, dated 22 December 1993, the applicant was the authority responsible for carrying out the project ...57 In that situation, the contested decision could be regarded as having directly affected the applicant's legal situation only if, by virtue of that decision, and without the Italian Republic's having had any discretion in that regard, that applicant had, on the one hand, been deprived of payment of the withdrawn amounts corresponding to sums not yet received from the ERDF by way of the disputed assistance and relating to expenditure which had become ineligible and was, on the other hand, obliged to refund the amounts unduly paid corresponding to sums already received by way of that assistance and intended for the implementation of expenditure which had become ineligible.58 However, the Court has already held that no such consequences derive either from a Commission decision terminating ERDF financial assistance or from any other provision of Community law intended to govern the effect of such a decision (order [of the Court of First Instance] in SLIM Sicilia v Commission ... paragraph 51).59 In that regard, it must, as a preliminary point, be recalled that, according to the institutional system of the Community and the rules which govern the relations between the Community and the Member States, it is for the Member States, in the absence of any contrary provision of Community law, to ensure that Community regulations are implemented within their territory (judgments in Joined Cases 205/82 to 215/82 Deutsche Milchkontor and Others v Germany [1983] ECR 2633, Joined Cases 89/86 and 91/86 Étoile commerciale and CNTA v Commission [1987] ECR 3005, paragraph 11 ... ). As regards more particularly financing measures adopted within the framework of the ERDF, it is incumbent upon the Member States ... to take the measures necessary to recover sums lost as a result of abuse or negligence....61 Within that system, it is therefore for the Member States, according to the case-law of the Court of Justice, to implement the Community regulations and to take the necessary individual decisions regarding the traders concerned ......65 It is clear that in this case there is nothing to prevent the Italian Republic from deciding to defray out of its own funds the withdrawn portion of the Community financing so as to finance the completion of the works relating to the project in question. In that regard, it must, in particular, be pointed out that, under Article 4(1) of Regulation No 2052/88, ERDF assistance is to be such as to complement or contribute to corresponding national operations and that Article 9 of Regulation No 4253/88 further provides that, in accordance with the principle of additionality, Community assistance may not replace public expenditure undertaken by the Member State.66 With regard ... to restitution of sums unduly paid, it must be pointed out that, in the contested decision, the Commission did no more than inform the Italian Republic that sums covered by a Community payment and corresponding to expenditure which had become ineligible had to be recovered by the ERDF. In contrast to the practice usually followed by the Commission in connection with unlawful aid declared incompatible with the common market, the contested decision does not include any provision requiring the Italian Republic to recover the sums unduly paid from their beneficiaries ......68 The proper implementation of the contested decision therefore requires only, as the Commission rightly maintains in its written submissions, that the Italian Republic refund to the ERDF the sums unduly paid which are indicated therein ......71 As regards ERDF financial assistance, the Court has already held that there [is] no evidence to indicate that the Member State has no discretion or indeed no decision-making powers as regards such reimbursement (order [of the Court of First Instance] in SLIM Sicilia v Commission ... paragraph 52)....73 It cannot ... be excluded that particular circumstances may lead the Italian Republic to decide not to claim reimbursement of the disputed assistance and itself to bear the burden of reimbursing to the ERDF the amounts which it wrongly considered itself authorised to pay ......80 It follows that the contested decision did not directly affect the applicant's legal situation.’
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