Language of document : ECLI:EU:T:2013:541

ORDER OF THE GENERAL COURT (Seventh Chamber)

24 September 2013 (*)

(Procedure – Taxation of costs)

In Case T‑384/08 DEP,

Elliniki Nafpigokataskevastiki AE Chartofylakeiou, established in Chaidari (Greece),

Howaldtswerke-Deutsche Werft GmbH, established in Kiel (Germany),

ThyssenKrupp Marine Systems AG, established in Hamburg (Germany),

represented by U. Soltész, lawyer,

applicants,

v

European Commission, represented by L. Flynn, M. Konstantinidis and C. Urraca Caviedes, acting as Agents,

defendant,

supported by

Trapeza Peiraios AE, established in Athens (Greece), represented by S. Pappas, lawyer,

intervener,

APPLICATION for taxation of costs lodged by Trapeza Peraios AE following the judgment of the General Court of 10 November 2011 in Case T‑384/08 Elliniki Nafpigokataskevastiki and Others v Commission, not published in the ECR,

THE GENERAL COURT (Seventh Chamber),

composed, at the time of the deliberation, of A. Dittrich, President, I. Wiszniewska-Białecka (Rapporteur) and M. Prek, 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 11 September 2008, the applicants, Elliniki Nafpigokataskevastiki AE Chartofylakeiou, Howaldtswerke-Deutsche Werft GmbH and ThyssenKrupp Marine Systems AG, brought an action, registered at the Registry of the General Court under the number T-384/08, seeking annulment of Article 16 of Commission Decision 2009/610/EC of 2 July 2008 on the measures C 16/04 (ex NN 29/04, CP 71/02 and CP 133/05) implemented by Greece in favour of Hellenic Shipyards (OJ 2009 L 225, p. 104) (‘the contested decision’).

2        By order of 3 September 2009, the President of the First Chamber of the General Court granted Trapeza Peiraios AE (‘the intervener’) leave to intervene in support of the form of order sought by the European Commission.

3        By judgment of 10 November 2011 in Case T‑384/08 Elliniki Nafpigokataskevastiki and Others v Commission, not published in the ECR, the General Court (Seventh Chamber) dismissed the action and ordered the applicants to pay the costs incurred by the Commission and by the intervener, on the basis of Article 87(2) of the Rules of Procedure of the General Court.

4        By e‐mail of 12 February 2012, the intervener informed the applicants that their costs in relation to case T‐384/08 amounted to EUR 36 708, representing EUR 1 748 in respect of administrative expenses and EUR 34 960 in respect of lawyers’ fees and requested the reimbursement of that amount. By e-mail of 4 March 2012, the intervener reiterated its claim for reimbursement.

5        By e-mails of 13 February and 13 March 2012, the applicants disputed the amount of costs claimed by the intervener. Moreover, in the first e-mail, they offered to pay the intervener EUR 10 000 as a compromise. In the second e-mail, they increased that amount to EUR 13 000.

6        By application lodged at the Registry of the General Court on 23 July 2012, the intervener lodged an application for taxation of costs pursuant to Article 92 of the Rules of Procedure.

7        By document lodged at the Registry of the General Court on 3 September 2012, the applicants submitted their observations on that application.

8        The intervener claims that the Court should:

–        instruct the applicants to pay it the amount of EUR 78 645 in respect of the main proceedings;

–        instruct the applicants to pay the costs connected with the proceedings for taxation of costs.

9        The applicants contend that the Court should fix the amount of recoverable costs at a figure which it considers reasonable and objectively justifiable, not exceeding EUR 13 500.

 Law

 Arguments of the parties

10      The intervener claims that the total costs incurred in connection with the proceedings before the General Court amount to EUR 78 645. That amount includes lawyers’ fees for a total of EUR 74 900, corresponding to 214 billable hours of work, at an average hourly rate of EUR 350, plus 5%, that is to say, EUR 3 745, in respect of all the disbursements. It points out the particularly complex nature of the main proceedings and, in particular, the fact that they gave rise, for the first time, to an assessment of the applicability of Article 87(1) EC to the concept of a ‘back-to-back’ guarantee or the ‘two step-mechanism’.

11      The applicants argue, first of all, that the application for taxation of costs submitted by the intervener before the General Court is for an amount which is more than twice the amount that the intervener claimed from them in its first e-mail of 12 February 2012. Next, they consider that the main proceedings did not have a decisive influence on the development of European Union law and that the intervener’s economic interest in the outcome of the proceedings does not justify the amount of costs claimed. Finally, the applicants consider that it was not necessary for the intervener’s counsel to dedicate 214 hours to work on the file and that the intervener has not supplied sufficiently precise information about the fees it incurred.

 Findings of the Court

12      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 other party’s comments, to make an order, from which no appeal may lie.

13      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, second, 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).

14      According to settled case-law, the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees to be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the General 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 the order in Airtours v Commission, cited in paragraph 13 above, paragraph 17 and the case‑law cited).

15      It has also consistently been held that, in the absence of Community provisions 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 European Union law as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (see order in Airtours v Commission, cited in paragraph 13 above, paragraph 18 and the case-law cited).

16      It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.

17      In the first place, concerning the purpose and nature of the main proceedings and their significance from the point of view of European Union law, it should be recalled that the main proceedings related to an application for annulment of the contested decision to the extent that the Commission therein held that the indemnification guarantee granted by Elliniki Trapeza Viomichanikis Anaptixeas AE (ETVA), a Greek bank belonging to the State, to the purchasers of the shipyard Hellenic Shipyards SA (HSY), prior to the privatisation of that bank and the acquisition thereof by the intervener, and requiring that bank to indemnify the purchasers of HSY for any State aid which was to be recovered from the latter, constituted State aid which was unlawful and incompatible with the common market.

18      In that case, the applicants raised, in essence, four pleas in law. The first plea alleged misapplication of Article 87(1) EC, in that the Commission wrongly found the existence of State aid. The second plea alleged misapplication of Article 88(2) EC and Article 14(1) of Council Regulation (EC) No 659/1999 of 22 March 1999 laying down detailed rules for the application of Article [88 EC] (OJ 1999 L 83, p. 1) on the ground that aid must be recovered from its beneficiary. The third plea alleged misapplication of Articles 87(1) EC, 88(2) EC, 10 EC and 5(1) EC on the ground that the Commission decided, wrongly, that the guarantee was incompatible per se with the common market. The fourth plea alleged misapplication of Article 296 EC.

19      The intervener has presented arguments solely concerning the first plea by which the applicants disputed, in essence, the classification of the contested indemnification guarantee as State aid within the meaning of Article 87(1) EC, and asked when that guarantee was granted, whether it was attributable to the Greek State, whether it involved State resources and an advantage in favour of HSY.

20      It must be held that, even if the main proceedings involved a certain factual complexity, it was possible to resolve the contentious issues between the parties on the basis of the settled case-law concerning the concept of State aid and State aids in the form of guarantees. It follows that the main proceedings cannot be considered to be particularly significant from the point of view of European Union law.

21      In the second place, as regards the economic importance of the proceedings for the intervener, it should be noted that the annulment of the disputed provision of the contested decision would have given rise to the intervener’s financial liability relating to the indemnification guarantee granted in favour of HSY. Therefore, the significant economic interest of the main proceedings for the intervener cannot be denied.

22      In the third place, in assessing the extent of the work generated by the main proceedings for the intervener’s lawyer, it should be recalled that it is for the Courts of the European Union to take into account the amount of work objectively required for the whole of the judicial 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, cited in paragraph 13 above, paragraph 30 and the case-law cited).

23      In the present case, the intervener claims that in the main proceedings it was assisted by three counsels who, together, carried out 214 hours of work. Those 214 hours of work involved the consultation of 1 070 pages of the file (the application and other written pleadings of the main parties – 121 pages, the annexes to the application and the defence – 879 pages, the applicants’ observations of 19 February 2009 on the application for leave to intervene – 5 pages, the order of 3 September 2009 granting leave to intervene – 7 pages, the applicants’ observations of 14 December 2009 on the statement in intervention – 7 pages, and the Report for the Hearing – 41 pages), the drafting of 28 pages of procedural documents (application for leave to intervene of 19 December 2008 – 6 pages, observations of 5 October 2009 on the objections as to confidential treatment – 4 pages, and the statement in intervention of 28 October 2009 – 18 pages), the production of 9 press clippings and a document as annexes to the statement in intervention and the representation of the intervener at the hearing. The intervener has included a schedule of costs and fees with the application for taxation of the costs, presenting a summary of the number of hours of work spent by its counsel on those various tasks.

24      First, it should be pointed out that, according to the case-law, when assessing the amount of work generated by contentious proceedings for an intervener’s lawyer, it is necessary to take account of the fact that, in general, the intervener’s part in the proceedings is made substantially easier by the work done by the party in support of which it has intervened (see order of the General Court of 6 October 2011 in Case T‑388/02 DEP Kronoply and Kronotex v Commission [2011], not published in the ECR, paragraph 17 and the case-law cited).

25      In the present case, it is necessary to take account not only of the fact that the intervener’s part in the proceedings was made easier by the Commission’s work, but also of the fact that the intervention related solely to the first plea by which the applicants disputed the classification of the contested indemnification guarantee as State aid within the meaning of Article 87(1) EC.

26      Second, concerning the number of counsel, it is clear from the case-law that although, in principle, only payment of the fees of a single lawyer is recoverable, it may be that, depending on the specific circumstances of each case, most notably its complexity, payment of the fees of more than one lawyer may be found to be necessarily incurred. 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 the General Court 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).

27      In the present case, although the representation of the intervener by more than one lawyer was justified by a degree of complexity of the proceedings, the distribution of the work between three counsel necessarily entailed a duplication of efforts, so that the Court cannot accept the totality of the hours of work claimed as being objectively indispensable to the contentious proceedings.

28      Third, as regards the number of hours of work dedicated to the file by the intervener’s counsel, in the light of the size of documents they produced (28 pages), and even taking account of the amount of the main parties’ pleadings and the annexes thereto, and the legal complexity of the case, it must be held that that number is excessive. In particular, in the light of the nature of certain documents, the number of hours that the intervener’s counsel dedicated to the consultation thereof is clearly overstated. That is in particular the case of the 15 hours of work dedicated to the study of the Report for the Hearing, the 3 hours dedicated to the study of the order granting leave to intervene, the 7.5 hours dedicated to the study of the applicants’ observations on the application for leave to intervene or the 9 hours dedicated to the study of the applicants’ observations on the statement in intervention. Likewise, the 30 hours dedicated to client consultations seem excessive, all the more so because the purpose of those consultations is not specified.

29      Fourth, the applicants are correct to point out the difference between the amount claimed by the intervener in the application for taxation of costs submitted to the Court and in the letters that it sent them immediately before that application was submitted. According to the schedule of costs and fees attached to the application for taxation of costs, the intervener’s counsel did 214 billable hours of work on the file at a rate of EUR 350, although, according to the schedule of costs and fees sent directly to the applicants, that counsel did 92 billable hours of work on the file at a rate of EUR 380. Therefore, the total claimed by the intervener before the Court, namely EUR 78 645, amounts to more than twice the amount that the intervener claimed from the applicants (namely EUR 36 708, see paragraph 4 above). The intervener does not give any precise explanation for that increase of more than 130% of the number of hours of work spent on the file, which gives the impression that the number of hours of work submitted to the Court does not reflect to real amount of work that the contentious proceedings entailed for the intervener’s counsel.

30      In the light of the foregoing, it must be held that the amount of EUR 74 900 in respect of lawyers’ fees is excessive and that the lawyers’ fees recoverable by the intervener can be assessed on an equitable basis at EUR 17 000.

31      Concerning the disbursements, in the absence of supporting documents confirming the amount thereof, they should be assessed, at a flat-rate of EUR 1 000.

32      In the light of all the foregoing considerations, all the costs recoverable by the intervener will be fairly assessed by taxing their amount at EUR 18 000, which takes account of all the circumstances of the case up to the date of this order.

On those grounds,

THE GENERAL COURT (Seventh Chamber)

hereby orders:

The amount of costs to be paid by Elliniki Nafpigokataskevastiki AE Chartofylakeiou, Howaldtswerke-Deutsche Werft GmbH and ThyssenKrupp Marine Systems AG to Trapeza Peiraios AE is fixed at EUR 18 000.

Luxembourg, 24 September 2013

E. Coulon

 

      A. Dittrich

Registrar

 

      President


* Language of the case: English.