ORDER OF THE GENERAL COURT (Third Chamber)
8 April 2014 (*)
(Procedure — Taxation of costs)
In Case T‑12/12 DEP,
Laboratoires CTRS, established in Boulogne-Billancourt (France), represented by M. Utges Manley and M. Vickers, Solicitors,
applicant,
supported by
Czech Republic,
by
French Republic,
and by
United Kingdom of Great Britain and Northern Ireland,
interveners,
v
European Commission, represented by E. White and L. Banciella, acting as Agents,
defendant,
APPLICATION for taxation of costs following the judgment of 4 July 2012 in Case T‑12/12 Laboratoires CTRS v Commission, not published in the ECR,
THE GENERAL COURT (Third Chamber),
composed of S. Papasavvas, President, N.J. Forwood and E. Bieliūnas (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By application lodged at the Registry of the General Court on 12 January 2012, the applicant, Laboratoires CTRS, brought an action for a declaration that the European Commission had failed to act, in that it unlawfully failed to adopt a final decision in relation to the applicant’s application for a marketing authorisation (‘the MA’) for the medicinal product ‘Orphacol — Cholic acid’. In the alternative, that action sought annulment of the Commission decision, contained in a letter of 5 December 2011, not to grant the applicant that authorisation.
2 By a separate document lodged on the same day as the application, the applicant applied for an expedited procedure pursuant to Article 76a of the Court’s Rules of Procedure. That application was allowed by decision of the Court of 8 February 2012.
3 By order of 18 April 2012, the President of the Fifth Chamber of the Court granted the Czech Republic, the French Republic and the United Kingdom of Great Britain and Northern Ireland leave to intervene in support of the form of order sought by the applicant.
4 On 23 April 2012, the Commission informed the Court that the Standing Committee on Medicinal Products for Human Use would meet on 8 May 2012 to discuss a new draft Commission decision refusing the MA for the medicinal product Orphacol.
5 The parties presented oral argument and answered the questions put by the Court at the hearing on 24 April 2012. The closure of the oral procedure was ordered at the end of that hearing.
6 By letter from the Court Registry of 22 May 2012, the parties were informed that the judgment was to be delivered on 7 June 2012.
7 By letter of 25 May 2012, the Commission informed the Court that it had adopted a decision refusing to grant the MA for the medicinal product Orphacol on that same day.
8 By order of 4 June 2012, the Court decided, in accordance with Article 62 of the Rules of Procedure, to order that the oral procedure be reopened in order to allow the parties to define their position in regard to that new element.
9 With the exception of the French Republic, all of the parties submitted their observations on the conclusions to be drawn from the Commission’s adoption of the decision of 25 May 2012. By decision of 19 June 2012, the Court again closed the oral procedure.
10 By judgment of 4 July 2012 in Case T‑12/12, Laboratoires CTRS v Commission, not published in the ECR, the Court dismissed the application for a declaration of failure to act as inadmissible. Furthermore, it ruled that there was no longer any need to adjudicate on the application for annulment submitted in the alternative insofar as, by the decision of 25 May 2012 refusing the MA, the Commission had replaced the refusal decision contained in the letter of 5 December 2011. Finally, in the light of the exceptional circumstances of the case, the Court ordered the Commission to pay the costs incurred by the applicant.
11 By letter of 20 September 2012, the applicant requested the Commission to pay it the amount of its costs, which it calculated to be EUR 210 676.26. By letter of 18 October 2012, the Commission contested that amount and offered to pay the sum of EUR 33 021 in settlement of the costs. By letter of 21 December 2012, the applicant rejected the Commission’s offer and made a new claim proposing a revised figure of EUR 119 926.20. By letter of 22 January 2013, the Commission declined to pay the amount requested by the applicant and offered to pay the sum of EUR 40 896.
12 By document lodged at the Court Registry on 4 June 2013, the applicant made an application for taxation of costs, under Article 92(1) of the Rules of Procedure, by which it requested the Court to fix the amount of recoverable costs to be reimbursed by the Commission at EUR 209 345, increased by the amount of the costs incurred for the purposes of the present proceedings.
13 By document lodged at the Court Registry on 19 July 2013, the Commission contended, using the exchange rates proposed by the applicant, that the Court should fix the amount of recoverable costs at EUR 33 021.
Law
14 Under Article 92(1) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Court is, on application by the party concerned and after hearing the opposite party, to make an order, from which no appeal may lie.
15 Under Article 91(b) of the Rules of Procedure, ‘expenses necessarily incurred by the parties for the purpose of the proceedings, in particular, the travel and subsistence expenses and the remuneration of agents, advisers or lawyers’ are regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, secondly, to those which were necessary for that purpose (see order of 28 June 2004 in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13 and the case-law cited).
16 It is settled case-law that the European Union judicature is not empowered to tax the fees payable by the parties to their own lawyers but it may determine the amount of those fees which may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the Court is not obliged to take account of any national scale of lawyers’ fees or any agreement in that regard between the party concerned and his agents or advisers (see order in Airtours v Commission, paragraph 17 and the case-law cited).
17 It is also settled case-law that, in the absence of provisions of EU law laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest which the parties had in the proceedings (see order in Airtours v Commission, paragraph 18 and the case-law cited).
18 It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.
19 In the first place, with regard to the purpose and the nature of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case, it should be recalled that, in its action, the applicant relied on two pleas in law.
20 By its first plea in law, the applicant sought a declaration from the Court that the Commission had unlawfully failed to act. The applicant claimed that the Commission was required to take a final decision in accordance with the examination procedure provided for by Regulation (EU) No 182/2011 of the European Parliament and of the Council of 16 February 2011 laying down rules and general principles concerning mechanisms for control by Member States of the Commission’s exercise of implementing powers (OJ 2011 L 55, p. 13).
21 By its second plea in law, put forward in the alternative, the applicant sought the annulment of the Commission’s decision refusing an MA. First, it claimed that that decision was contrary to Regulation No 182/2011. Secondly, the applicant claimed that, in any event, the reasoning of that decision was erroneous or insufficient having regard to the EU rules applicable to the marketing of medicinal products. In that regard, the application requested the Court, first, to assess whether the Commission could, without being in error, consider that the applicant had not demonstrated that cholic acid was in well-established medicinal use within the meaning of Article 10a of Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the Community code relating to medicinal products for human use (OJ 2001 L 311, p. 67). Secondly, according to the applicant, the Commission had erred in considering that, where an authorisation was sought on the basis of Article 10a of Directive 2001/83, the applicant could not simultaneously rely upon the ‘exceptional circumstances’ provided for by Article 14(8) of Regulation (EC) no 726/2004 of the European Parliament and of the Council of 31 March 2004 laying down Community procedures for the authorisation and supervision of medicinal products for human and veterinary use and establishing a European Medicines Agency (OJ 2004 L 136, p. 1). Thirdly, the applicant challenged the Commission’s conclusion that granting an MA would have undermined the objectives of Regulation (EC) No 1901/2006 of the European Parliament and of the Council of 12 December 2006 on medicinal products for paediatric use and amending Regulation (EEC) No 1768/92, Directive 2001/20/EC, Directive 2001/83 and Regulation No 726/2004 (OJ 2006 L 378, p. 1) and the protection of innovation.
22 In its observations on the request for an expedited procedure lodged by the applicant, the Commission stated that the questions of law that were the object of this procedure were ‘fundamental’ to the application of the EU rules on the marketing authorisation of medicinal products. That analysis was, moreover, confirmed by the applications for leave to intervene lodged by three Member States.
23 Consequently, the Court considers that the proceedings were of high importance from the point of view of EU law.
24 With regard to the difficulties presented by the case, the factual complexity invoked by the applicant cannot be accepted in so far as the action did not involve medical or technical issues.
25 However, as the Commission acknowledges in its observations on the application for taxation of costs, the case raised novel legal issues relating to the interpretation of Regulation No 182/2011 and, more generally, the rules of EU law concerning the marketing authorisation of medicinal products.
26 The lack of case-law relating to the provisions of EU law that are relevant in the present case or relating to similar circumstances has resulted in greater uncertainty for the applicant regarding the outcome of the action and has thus required a more thorough analysis than usual.
27 Accordingly, the case involved a certain complexity, but one that was insufficient to justify reassignment to a Chamber sitting in extended composition.
28 In view of the above, the complexity and difficulty of the case must be regarded as average.
29 In the second place, as regards the financial interest which the applicant had in the proceedings, the applicant submits that it is a small pharmaceutical company focused on the development and manufacture of pharmaceuticals. Although it does not submit figures, the applicant refers to the financial consequences arising from its being unable to market Orphacol, as a result of the decision to refuse an MA, having regard, in particular, to the impact of such inability on the applicant’s capacity to develop medicinal products which require substantial investment.
30 In so far as the applicant’s submissions are not disputed by the Commission in its observations on the application for taxation of costs, the Court considers that it cannot be denied that the case had a significant financial interest for the applicant.
31 In the third place, in assessing the amount of work generated by the proceedings before the Court for the applicant’s lawyers, and the amount of fees charged by those lawyers, it must first be recalled that the Courts of the European Union must take into account the amount of work objectively required for the whole of those proceedings. It is necessary also to point out that the ability of the Courts of the European Union to assess the value of work carried out is dependent on the accuracy of the information provided (see order in Airtours v Commission, paragraph 30 and the case-law cited).
32 While, in principle, the remuneration of only one agent, adviser or lawyer is recoverable, it is possible that, depending on the individual circumstances and, most importantly, the complexity of each case, the fees of a number of lawyers may be considered ‘necessary expenses’ under Article 91(b) of the Rules of Procedure (see order in Case C‑104/89 DEP Mulder and Others v Council and Commission [2004] ECR I‑1, paragraph 62 and the case-law cited).
33 The primary consideration is none the less the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (see order of 19 September 2010 in Case T‑221/05 DEP Huvis v Council, not published in the ECR, paragraph 30 and the case-law cited).
34 Accordingly, where a party decides to be represented by both a solicitor and a barrister, it does not follow that the fees due to each of them are not to be regarded as costs necessarily incurred for the purpose of the proceedings, as provided for in Article 91(b) of the Rules of Procedure. In taxing costs in those circumstances, the Court must examine the extent to which the services supplied by all the lawyers concerned were necessary for the conduct of the legal proceedings and satisfy itself that the fact that both categories of lawyers were instructed did not entail any unnecessary duplication of costs (see, to that effect, order in Airtours v Commission, paragraphs 43 and 44).
35 In the present case, it is true that the outcome of the proceedings before the Court was determined in part by the adoption by the Commission of the decision of 25 May 2012 and not by the questions raised by the applicant. That circumstance, however, is not such as to call into question the workload which was borne by the applicant during those proceedings. The Commission decision of 25 May 2012 was adopted three days after a letter was sent from the Court fixing the date of delivery of the judgment, that is to say, after the first closure of the oral procedure in this case.
36 The applicant states that its lawyers spent a total of 499.85 hours of work in the proceedings before the Court in this case. It states that this case involved a barrister, three solicitors, namely a partner, a senior associate and a junior associate and, finally, a trainee solicitor.
37 The applicant has produced in that regard the fee notes drawn up by the barrister for a total amount of GBP 37 815. While those fee notes do not specify the number of hours that that barrister spent on the case, the applicant states that the fee charged corresponds to approximately 126.05 hours of work at an hourly rate of GBP 300.
38 Moreover, the fee notes drawn up by the barrister provide a brief description of the services supplied in connection with the proceedings. Those services are, first, the preparation and drafting of the application for annulment and a request for an expedited procedure and analysis of the Commission’s written pleadings and, secondly, preparation for and attendance at the hearing of 24 April 2012, and participation in the drafting of a reply from the applicant to a question from the Court. The work of the barrister therefore related to all the stages of the proceedings before the Court.
39 As regards the work of the three solicitors and the trainee solicitor, the applicant states that their fees amount to GBP 125 016. However, the applicant has produced neither fee notes nor, a fortiori, the daily sheets on the basis of which the fee notes were drawn up. The evidence submitted by the applicant takes the form of two separate tables.
40 The first table shows, on a monthly basis, the time spent on that case by each of the three solicitors and by the trainee solicitor. It appears that the partner, senior associate, junior associate and trainee solicitor worked 58.6 hours, 255 hours, 44.1 hours and 16.1 hours, respectively, between December 2011 and June 2012.
41 The second table describes the tasks performed during the various stages of the proceedings before the Court. That work covers the preparation of an application for annulment and of a request for an expedited procedure; the analysis of two documents lodged by the Commission, namely, the defence and a reply to a written question; the preparation of oral arguments for the hearing; the presentation of the oral argument itself; the analysis of the proposed new decision of the Commission refusing the MA for Orphacol; and preparation of a reply to a question sent by the Court.
42 In the present case, it is clear that the representation of the applicant by more than one lawyer can be considered necessary for the procedure taking into account, in particular, the average complexity of the proceedings and their financial significance to the applicant.
43 However, the documents submitted by the applicant in support of its application for taxation of costs show that the application, the request for an expedited procedure and the reply to a written question from the Court lodged by the applicant were all prepared by at least three lawyers. Furthermore, all the written pleadings submitted by the Commission were analysed by three lawyers. In addition, two solicitors participated in each of the conference calls with the barrister. Finally, the documents annexed to the pleadings filed by the applicant before the Court were prepared by two people supervised by a third.
44 Accordingly, the combined use of a barrister, three solicitors and a trainee solicitor had, in the present case, the consequence that there was an overlap and a duplication of the efforts undertaken and a multiplication of costs at all stages of the proceedings before the Court. Accordingly, the Court cannot accept the totality of the hours of work claimed as being objectively necessary for the purpose of those proceedings.
45 The hours of work, for which payment is claimed, appear even less necessary for the proceedings before the Court in so far as the applicant admits having used, first, the services of a leading solicitor specialising in EU pharmaceutical law and, secondly, the services of a barrister with special expertise in the area of EU law. Given the specialisation of those representatives, it has to be considered that they had a good knowledge of the legal framework at issue in the present case.
46 It should also be noted that the firm of solicitors, to which the three solicitors who worked for the applicant during the proceedings before the Court belong, produced two legal opinions during the procedure leading to the adoption of the Commission decision refusing the MA. The drafting of those two opinions therefore allowed the members of that firm of solicitors to acquire a thorough knowledge of the case that could be used during the proceedings before the Court. It is also apparent from those legal opinions that the applicant had already put forward to the Commission some of the arguments which it then submitted to the Court. That circumstance, therefore, facilitated, to a degree, the work of the applicant’s lawyers and reduced the time devoted to the preparation of the application (see, to that effect, order of 13 February 2008 in Case T‑310/00 DEP Verizon Business Global v Commission, not published in the ECR, paragraph 42 and the case-law cited).
47 The urgency of initiating the proceedings, and the fact that the case progressed swiftly following the decision of the Court to grant the request for an expedited procedure, did not have an impact on the volume of work that was necessary for the proceedings and cannot justify the use of a larger team of lawyers. As the Court has noted in paragraphs 45 and 46 above, the applicant used the services of two specialised lawyers and the firm of solicitors in which one of those specialists works drafted two legal opinions which were sent to the Commission before the proceedings were commenced.
48 Finally, the time spent by the applicant’s lawyers in coordination with the interveners cannot be regarded as necessary for the procedure insofar as that coordination was not requested by the Court (see, to that effect, order of 12 December 2008 in Case T‑417/05 DEP Endesa v Commission, not published in the ECR, paragraph 47 and the case-law cited).
49 In those circumstances, it must be held that the hours spent in the preparation of the action go far beyond what could be considered necessary within the meaning of Article 91(b) of the Rules of Procedure.
50 As regards the hourly rate of remuneration of the applicant’s lawyers, that rate, according to the figures (excluding VAT) provided by the latter in its application for taxation of costs, amounts to GBP 300 for the barrister, GBP 460 for the partner, GBP 335 for the senior associate, GBP 210 for the junior associate and GBP 160 for the trainee solicitor.
51 The Court takes the view, however, that in the present case those hourly rates appear excessive and that, as regards the highest of those rates, they are above the appropriate rate to pay for the services of a particularly experienced professional, capable of working very quickly and efficiently. Furthermore, it should be noted that only those costs that are necessary for the procedure are considered to be recoverable. Acquiring the services of lawyers who charge such high hourly rates, even if those rates are justified by exceptional experience in this type of litigation, cannot be regarded as necessary.
52 In view of all of the foregoing, the fees necessarily incurred by the applicant in relation to the main proceedings and the present proceedings must be assessed at EUR 46 000.
Disbursements
53 As regards lawyers’ disbursements and other expenses incurred by the applicant, the amount claimed from the Commission amounts to GBP 4 671.51. Furthermore, the amount of EUR 850.84 should be added for the travel and subsistence expenses of two management representatives of the applicant.
54 The amount of travel and subsistence expenses incurred by the applicant for the purposes of the hearing cannot, however, cover all the costs represented by the travel of a barrister, two solicitors and two management representatives of the applicant.
55 First, as regards the expenses of the applicant’s lawyers relating to travel and subsistence in Luxembourg, the presence of three of the applicant’s lawyers at the hearing cannot be considered necessary. Conversely, as the Commission acknowledges, the presence of two lawyers at the hearing could be justified in the circumstances of the case.
56 Secondly, as regards expenses connected with the travel and subsistence of the management representatives of the applicant, it is apparent from the case-law that the expenses incurred by an applicant in order to be present in person at a hearing before the Court in Luxembourg, without his presence being requested by the Court or necessary by reason of the circumstances, cannot, as a rule, be considered necessary for the purposes of the proceedings (see, to that effect, order in Case T‑47/03 DEP Sison v Council [2009] ECR II‑1483, paragraph 52 and the case-law cited).
57 It must be considered, however, in the circumstances of the case, that the claim for payment of the expenses associated with the travel and subsistence of one of the two management representatives of the applicant is justified.
58 The Court also observes that it is unable to verify the necessary nature of certain travel and subsistence expenses incurred by the applicant, given the poor quality of the supporting documents submitted or the absence of an essential detail, such as the date, on one of those supporting documents. The Court also notes that the applicant submits expense sheets for which the supporting documents relate to expenditure incurred prior to the procedure before the Court.
59 Finally, the applicant has not provided any documentary evidence to establish the fact and, a fortiori, the necessity of the expense in the amount of GBP 2 336.46 allegedly incurred in the production of documents (printing and photocopies).
60 On the basis of those factors, therefore, the sum of EUR 3 000 is appropriate to cover all the disbursements and other necessary expenses that were incurred by the applicant.
61 In the light of all the foregoing considerations, the Court considers that the costs recoverable by the applicant in respect of the procedure before it will be fairly assessed by fixing their amount at EUR 49 000, which takes account of all the circumstances of the case up to the date of this order.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
The total costs to be reimbursed by the European Commission to Laboratoires CTRS are fixed at EUR 49 000.
Luxembourg, 8 April 2014.