Société à responsabilité limitée Unifrex v Commission and Council of the European Communities (281/82)

1. Admissibility

(a) Unifrex states that according to an established body of case-law, the application for damages is an independent remedy which may be claimed independently of all other remedies based on national or Community law.The Court has affirmed the independence of the action for damages, in relation to both proceedings for failure to act and proceedings for a declaration of nullity, in its judgment of 28 April 1971 (Case 4/69 Lütticke [1971] ECR 325) and of 2 December 1971 (Case 5/71 Schöppenstedt[1971] ECR 975).The independence of the action for damages in relation to the means of redress available in national law has been recognized in the judgment of 24 October 1973 (Case 43/72 Merkur [1973] ECR 1055). The effect of that judgment is that the admissibility of an action for damages cannot be made subject to the exhaustion of national remedies. In the present case, Unifrex has no national remedy likely to give it satisfaction, in view of the fact that the court with jurisdiction regards any ultra vires acts would be empowered solely to declare void the decision of the competent French body (ONIC) awarding the monetary compensatory amounts but not to substitute itself for the administration and order ONIC to pay the amounts at a different rate.Thus, the present action is available without its being necessary to seek first a declaration that the measure is illegal or that the Community institution has failed to act.(b) The Commission, without formally putting forward an objection of inadmissibility, none the less expresses doubts about the admissibility of the action because the national means of redress have not been exhausted.It is clear from an established body of case-law that the parties concerned should contest before the national courts, which may, if necessary, apply to the Court for a preliminary ruling, the decisions taken by the intervention bodies, in application of Community rules (judgments of 5 December 1979 in Joined Cases 116 and 124/77 Amylum [1979] ECR 3497; of 12 December 1979 in Case 12/79 Wagner [1979] ECR 3657; and of 10 June 1982 in Case 217/81 Interagia [1982] ECR 2233).That principle received support in particular in the judgment of 17 December 1981 (Joined Cases 197 to 200, 243, 245 and 247/80 Ludwigshafener Walzmühle [1981] ECR 3211) in which the Court, adjudicating upon an objection of inadmissibility founded on the failure to use national means of redress, did not follow the reasoning of the Merkur case, but rejected the objection because, in those cases, such a means of redress was not available. On the other hand Unifrex, the Commission claims, had the opportunity of applying to the French administrative courts for an order annulling the decision of ONIC by which the latter had applied to it the monetary compensatory amounts in dispute.(c) The Council, without raising a formal objection within the meaning of Article 91 of the Rules of Procedure, raises the inadmissibility of the application. In this respect it relies on Article 38 (1) of the Rules of Procedure, which requires the application to state with a sufficient degree of clarity “the subject-matter of the dispute and the grounds on which the application is based”. The applicant must “set out the precise facts relied on in support of his claim and must present his conclusions in an unequivocal manner” (judgment of 14 September 1962 in Joined Cases 46 and 47/59 Meroni [1962] ECR 411). In the present case, the applicant should have indicated with the necessary precision in particular the infringements allegedly committed by the institution.The Council admits in this context that the Court put a more restrictive interpretation on this requirement in its judgment of 15 May 1975 (Case 74/74 CNTA [1975] ECR 533). It was held in that case that defects in the originating application could not make the application inadmissible unless they were such as to prevent the other party from effectively defending its interests or hinder the Court in the exercise of its judicial review. However, these are precisely the conditions which are not satisfied in this case, since it is impossible for the Council to sec clearly what the applicant alleges against it.