Language of document : ECLI:EU:T:2019:774

ORDER OF THE GENERAL COURT (Fourth Chamber)

18 October 2019 (*)

(Civil service — Procedure — Taxation of costs — Representation of an institution by external lawyers — Recoverable costs — Reasonable period)

In Case T‑613/18 DEP,

FT, former temporary agent of the European Securities and Markets Authority, represented by S. Pappas, lawyer,

applicant,

v

European Securities and Markets Authority (ESMA), represented by G. Filippa and F. Barzanti, acting as Agents, assisted by D. Waelbroeck and A. Duron, lawyers,

defendant,

APPLICATION for taxation of costs following the judgment of the Civil Service Tribunal of 8 October 2015, FT v ESMA (F‑39/14, EU:F:2015:117)

THE GENERAL COURT (Fourth Chamber),

composed, at the time of deliberation, of H. Kanninen, President, J. Schwarcz and C. Iliopoulos (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Facts and proceedings

1        By application lodged at the Registry of the Civil Service Tribunal on 24 April 2014, the applicant, FT, brought an action seeking, in essence, annulment of the decision of 28 June 2013 of the Executive Director of the European Securities and Markets Authority (ESMA) not to renew the FT’s fixed-term contract as a member of the temporary staff, which was due to expire on 31 December 2013.

2        By judgment of 8 October 2015, FT v ESMA (F‑39/14, EU:F:2015:117), the Civil Service Tribunal dismissed the action in its entirety and ordered the applicant to bear the costs that the applicant had incurred and to pay those incurred by ESMA. As no appeal was brought against that judgment, it acquired the force of res judicata on 19 December 2015, including the extension of the time limit on account of distance.

3        By letter of 16 May 2017, ESMA requested the applicant to reimburse the amount of EUR 15 398.50 in respect of costs in Case F‑39/14, inviting the applicant to submit written observations on that request by 19 June 2017 and declaring itself open to any proposal on the applicant’s part concerning the modalities and timing of payment.

4        By letter of 19 June 2017, the applicant’s lawyer informed ESMA that as the applicant was on sick leave, the applicant would be unable to comply with the 19 June 2017 deadline. Furthermore, he stated that the letter of 16 May 2016 should have been sent not only to the applicant but also to him as the applicant’s lawyer who had represented FT in Case F‑39/14. Lastly, he stated that he would consider the request that week and would present his detailed comments, although he was already in a position to take the view that the ‘claim [was] unfounded and, in any event, exorbitant’.

5        By letter of 22 June 2017, the applicant’s lawyer informed ESMA that FT considered, in essence, that, in accordance with the applicable case-law on the subject, the costs claimed for the fees and disbursements of ESMA’s external lawyers should be regarded as ‘non-recoverable’ and that, in any event, FT should pay only an amount equal to that which would have been due if ESMA had been represented in the case in question by its own staff. Finally, without prejudice to the above, the applicant also argued that the amount requested by ESMA was significantly overpriced and exorbitant, taking into account the criteria established by the case-law.

6        Following that letter, the lawyers for ESMA and the applicant entered into negotiations with a view to reaching an amicable agreement on costs.

7        By letter of 9 August 2018, ESMA stated, first, that, on the basis of settled case-law, it was fully entitled to claim reimbursement of the costs incurred by it in Case F‑39/14. Next, while expressing its regret that its efforts to reach an amicable resolution with the applicant had not been successful, ESMA informed the applicant that it was requesting the recovery of EUR 12 000.00, rather than the initial amount of EUR 15 398.50. More specifically, ‘as a gesture of good faith’ and in order to avoid additional procedural costs, ESMA stated, first, that it was prepared to withdraw the claim for reimbursement of fees in the amount of EUR 388 relating to its agent’s attendance at the hearing in Case F‑39/14 and, secondly, having regard, inter alia, to the matters raised by the applicant in the applicant’s letter of 22 June 2017, it also agreed to reduce its initial request by EUR 3 010.50 in respect of the costs of the services provided by the external lawyers instructed by ESMA. Following those reductions, ESMA issued a debit note in FT’s name in the amount of EUR 12 000, with a time limit for payment of 45 days. In addition, in order to facilitate payment, ESMA reiterated that it was open to any proposal from the applicant regarding payment by instalments. The applicant did not acknowledge receipt of the letter of 9 August 2018.

8        By email of 28 September 2018, 4 days after the expiry of the time limit for payment referred to above, ESMA sent a reminder for the payment of that amount to the applicant’s lawyer. The applicant did not acknowledge receipt of that reminder.

9        By document lodged at the Court Registry on 10 October 2018, the applicant made the present application for taxation of costs pursuant to Article 170(1) of the Rules of Procedure of the General Court.

10      By email of 15 October 2018, as ESMA had not been informed of that application for taxation of costs and had not received a reply to its letter of 9 August 2018 or to its email of 28 September 2018, it sent a second and final reminder to the applicant’s lawyer.

11      By email dated the same day, the applicant’s lawyer replied to ESMA stating that, as noted in his letter of 22 June 2017, he considered the request for reimbursement of costs to be unlawful and that therefore he was obliged to bring the matter before the General Court of the European Union.

 Forms of order sought

12      The applicant claims that the Court should:

–        declare that the costs claimed by ESMA, in the amount of EUR 12 000, in the case giving rise to the judgment of 8 October 2015, FT v ESMA (F‑39/14, EU:F:2015:117), are not recoverable as the reasonable time for claiming them has elapsed without ESMA taking any action;

–        in the alternative, declare that the sum of EUR 12 000 claimed by ESMA is exorbitant and fix the amount of costs recoverable by ESMA at EUR 7 000;

–        order ESMA to bear its own costs and to pay those incurred by the applicant in the present taxation of costs proceedings.

13      In its observations, lodged at the Court Registry on 28 November 2018, ESMA contends that the Court should:

–        fix the amount of costs recoverable in Case F‑39/14 at EUR 12 000;

–        order the applicant to pay the costs of the present taxation of costs proceedings.

 Law

14      Under Article 170(1) to (3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court is, on application by the party concerned, to give its decision by way of an order from which no appeal is to lie, after giving the party concerned an opportunity to submit its observations.

 Admissibility of the application for taxation of costs

15      As a preliminary point, it should be noted that, in accordance with Article 170(1) of the Rules of Procedure, an application for taxation of costs brought by the party concerned is admissible only if, at the time that application is made, there is a dispute concerning the costs to be recovered (see order of 13 May 2015, Goldsteig Käsereien Bayerwald v OHIM, T‑47/13 DEP, not published, EU:T:2015:316, paragraphs 11 to 13 and the case-law cited). Furthermore, the concept of the party concerned, within the meaning of that provision, covers both the creditor and the debtor of the debt inasmuch as both parties have an interest in seeing the amount of the recoverable costs fixed definitively (see, to that effect, order of 19 June 2018, HP v Commission and eu-LISA, T‑596/16 DEP, not published, EU:T:2018:374, paragraph 18 and the case-law cited).

16      In the present case, it is apparent from the file that, despite the numerous exchanges listed in paragraphs 3 to 11 above, the parties did not reach an agreement on costs. Consequently, it must be held that, on the date the present application was made, there was a dispute as to the recoverable costs and that the present application for taxation of costs is admissible.

 The merits of the application for taxation of costs

17      In the present case, it is clear from the letter of 9 August 2018 that the total amount of costs claimed by ESMA corresponds, in essence, to the remuneration of the two external lawyers it was represented by in Case F‑39/14.

18      The applicant submits, first, that the costs claimed by ESMA are not recoverable in so far as, first, ESMA exceeded a reasonable period for making its claim for the reimbursement of costs and, secondly, those costs were not essential. In the alternative, the applicant submits that the claim for reimbursement is exorbitant.

 The recoverability of the costs

–       The allegation that the claim for the recovery of costs was not made within a reasonable period

19      The applicant submits, in essence, that ESMA is deprived of the right to recover the costs which it incurred because it allowed almost 17 months to pass before claiming those costs. First, according to FT, the costs can no longer be recovered because the claim for the recovery of costs was not sent to the party ordered to pay the costs within a reasonable period, as required by settled case-law. More specifically, the applicant submits that the first time the applicant was contacted by ESMA in respect of the reimbursement of its costs was on 16 May 2017, or almost 17 months after the expiry of the time limit for lodging an appeal against the judgment in the main proceedings, which exceeded the reasonable period beyond which any person acting in good faith would reasonably consider that ESMA no longer intended to recover the costs in question. Secondly, the applicant submits that it took ESMA several months after receiving the applicant’s email of 22 June 2017 to contact the applicant again concerning the recovery of costs. That fresh delay further contributed to the applicant’s well-established belief that ESMA would not recover the costs in question, if for no other reason than because it had accepted the arguments put forward by the applicant in the applicant’s letter of 22 June 2017.

20      ESMA disputes the applicant’s arguments.

21      As a preliminary point, it should be noted that Article 170 of the Rules of Procedure does not prescribe a time limit for the submission to the General Court of a claim for the taxation of costs. Likewise, neither the Rules of Procedure nor the relevant case-law prescribe a time limit for the intermediate steps in the taxation of costs proceedings, taken after the time when a claim for recovery of costs has been communicated to the party ordered to pay the costs (see order of 20 May 2010, Tetra Laval v Commission, C‑12/03 P‑DEP and C‑13/03 P‑DEP, not published, EU:C:2010:280, paragraph 22).

22      Nevertheless, it is well-established case-law that a claim for recovery of costs must be submitted to the party ordered to pay the costs within a reasonable period (see, to that effect, orders of 21 June 1979, Dietz v Commission, 126/76 DEP, EU:C:1979:158, paragraph 1; of 20 May 2010, Tetra Laval v Commission, C‑12/03 P‑DEP and C‑13/03 P‑DEP, not published, EU:C:2010:280, paragraph 21; and of 26 February 2016, Gualtieri v Commission, T‑284/06 DEP II, not published, EU:T:2016:125, paragraph 25 and the case-law cited). Beyond such a reasonable period, the party who has been ordered to bear the costs would be entitled to consider that the party to which costs are payable has waived its right (see, to that effect, order of 18 September 2018, Marcuccio v Commission, T‑720/17 RENV DEP II, not published, EU:T:2018:581, paragraph 14 and the case-law cited).

23      In accordance with the case-law concerning the admissibility of an application for taxation of costs, the ‘reasonableness’ of a period of time is to be appraised in the light of all the circumstances specific to each case and, in particular, the importance of the case for the person concerned, the complexity of the case and the conduct of the parties involved (see order of 18 September 2018, Marcuccio v Commission, T‑720/17 RENV DEP II, not published, EU:T:2018:581, paragraph 14 and the case-law cited).

24      In the present case, the issue at stake in the dispute, which concerns the recovery of costs, is of some importance to the parties because of the amount involved. As regards the criterion of the complexity of the case, the present application for taxation of costs cannot be described as complex, in particular in the light of the settled case-law on the matter (see, to that effect, order of 21 April 2015, BI v Cedefop, F‑31/11 DEP, EU:F:2015:55, paragraph 15).

25      As regards the conduct of the parties, it should be noted that the judgment in the main proceedings (F‑39/14, EU:F:2015:117) was adopted and notified to the parties on 8 October 2015, and that the time limit for lodging an appeal expired on 18 December 2015 (see paragraph 2 above). Although the initiation of appeal proceedings does not have suspensory effect, it is entirely understandable that a party entitled to the payment of costs may await the expiry of the time limit for lodging an appeal before submitting its claim for reimbursement of costs (order of 17 April 1996, Air France v Commission, T‑2/93 (92), EU:T:1996:48, paragraph 12). ESMA submitted its claim for the recovery of costs to the applicant by letter dated 16 May 2017, approximately 17 months after the expiry of the time limit for appeal.

26      That period is indeed considerable, particularly since, as can be seen from the case file, ESMA was in possession of a detailed description of the tasks performed by the two external lawyers, the list of their hourly rates and their fee notes as early as 23 November 2015 (date of receipt of the invoice of 6 November 2015, that is to say, a date before the expiry of the time limit for lodging an appeal.

27      However, even allowing for a degree of inactivity on the part of ESMA, which allowed a considerable period to elapse before claiming costs from the applicant, that period of 17 months does not exceed the reasonable period beyond which the applicant was entitled to consider that ESMA had waived its right to recover the costs incurred in the proceedings (see, to that effect, orders of 17 April 1996, British Airways v Air France, T‑3/93 (92), not published, EU:T:1996:49, paragraphs 12 to 15, and of 27 November 2012, Gualtieri v Commission, T‑413/06 P‑DEP, not published, EU:T:2012:624, paragraphs 23 to 31; and, by analogy, order of 28 February 2013, Commission v Marcuccio, C‑528/08 P‑DEP, not published, EU:C:2013:110, paragraph 16).

28      Moreover, the 15-month period which elapsed between the applicant’s letter of 22 June 2017, disputing the costs claimed, and ESMA’s letter of 9 August 2018, contrary to what the applicant submits, is also not unreasonable, since the agency tried to reach an agreement during that period (see, by analogy, order of 21 April 2015, BI v Cedefop, F‑31/11 DEP, EU:F:2015:55, paragraph 16).

29      Consequently, all the arguments raised by the applicant to demonstrate the non-recoverability of the costs claimed by ESMA as a result of the late submission of its claim for recovery must be dismissed as unfounded.

–       Whether the assistance of external lawyers was essential

30      The applicant, in paragraph 14 of the application, merely refers to paragraphs 36 to 40 of the order of 27 September 2011, De Nicola v EIB (F‑55/08 DEP, EU:F:2011:155) concerning whether lawyers’ fees were essential, without however drawing any conclusions from those paragraphs. However, even if, by citing that case-law, the applicant seeks to argue that the use, by ESMA, of external lawyers in Case F‑39/14 was not essential, it must be held that such an argument cannot succeed.

31      According to Article 140(b) of the Rules of Procedure, the expenses necessarily incurred by the parties for the purposes 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 the recoverable costs are limited to those incurred for the purposes of the proceedings before the General Court and to those which were essential for those purposes (order of 28 January 2014, Marcuccio v Commission, T‑366/10 P‑DEP, EU:T:2014:63, paragraph 32).

32      As is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that statute, the institutions of the European Union are free to have recourse to the assistance of a lawyer. In accordance with settled case-law, the remuneration of the latter is covered by the concept of essential costs incurred for the purpose of the proceedings, without the institution being required to show that such assistance was objectively justified (see order of 28 January 2014, Marcuccio v Commission, T‑366/10 P‑DEP, not published, EU:T:2014:63, paragraph 33 and the case-law cited). Therefore, whilst the fact that ESMA instructed two external lawyers in the main proceedings has no impact on the possible recoverability of those costs, since there is nothing to preclude such recovery in principle, it may have an impact on the determination of the amount of costs incurred for the purposes of the proceedings which may ultimately be recovered (order of 11 April 2019, Andres and Others v ECB, T‑129/14 P‑DEP, not published, EU:T:2019:254, paragraph 18 and the case-law cited).

33      In view of the foregoing considerations, the fees of the external lawyers, which ESMA claims as costs incurred in Case F‑39/14, are recoverable costs.

 The amount of the recoverable costs

34      The applicant submits that the amount of the recoverable costs is exorbitant, since the case in the main proceedings was not unusually complex, did not concern a novel legal issue or present an interest that far exceeded the scope of the dispute, and that the number of hours to which the total amount claimed corresponds was excessive.

35      It should be recalled at the outset that the EU judicature does not have jurisdiction 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 of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17 and the case-law cited).

36      It is also settled case-law that, in the absence of any provisions of EU law relating to tariffs or to the necessary working time, the Court must freely assess the details of the case, taking account of the subject matter and nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved and the economic interests which the dispute presented for the parties (orders of 20 May 2010, Tetra Laval v Commission, C‑12/03 P DEP and C‑13/03 P DEP, EU:C:2010:280, paragraph 44, and of 16 October 2014, Since Hardware (Guangzhou) v Council, T‑156/11 DEP, not published, EU:T:2014:930, paragraph 17).

37      In that regard, it must be held that, amongst those different requirements, those based on the extent of the work required and the difficulty of the case serve to determine the number of working hours which may be regarded as being, in any event, strictly necessary for the handling of the case in point, whereas the others are aimed at verifying whether, as the case may be, there were particular circumstances justifying the devotion of additional working hours to it (see order of 4 July 2017, EASA v Heli-Flight, C‑61/15 P‑DEP, not published, EU:C:2017:530, paragraph 19).

38      The amount of the recoverable fees must be assessed by reference to those considerations.

39      First, as regards the subject matter and nature of the dispute, it should be noted that the action in the main proceedings was for the annulment of the decision of the Executive Director of ESMA of 28 June 2013 not to renew the applicant’s contract as a temporary agent for a fixed period.

40      In support of the applicant’s application for annulment, the applicant raised five pleas in law, alleging, respectively, first, lack of competence of the authority which adopted the contested decision, secondly, infringement of procedural requirements and the rights of the defence, thirdly, manifest error in ESMA’s assessment of skills and performance, fourthly, infringement of the duty to have regard to the interests of staff and, fifthly, misuse of power. Although, during the proceedings before the Civil Service Tribunal, the applicant withdrew the first and fourth pleas in law, ESMA had to examine all the pleas in law relied on in its defence. In addition, the Civil Service Tribunal examined of its own motion the question of the possible lack of competence of the authority which adopted the contested decision.

41      As for the question of competence and the three pleas in law adjudicated upon, it is apparent from the judgment in the main proceedings that, despite some factual complexity, the dispute in those proceedings did not, by its nature and subject matter, present a high degree of difficulty.

42      As regards the examination of the Executive Director’s competence to adopt the contested decision, the Civil Service Tribunal, on the basis of a straightforward application of the provisions, first, of the financial regulation of ESMA adopted by the ESMA Management Board by its decision of 11 January 2011 and, secondly, of the ESMA Regulation (Regulation (EU) No 1095/2010 of the European Parliament and of the Council of 24 November 2010 establishing a European Supervisory Authority (European Securities and Markets Authority), amending Decision No 716/2009/EC and repealing Commission Decision 2009/77/EC, OJ L 331, p. 84), concluded that the contested decision was not vitiated by any illegality in so far as it was adopted by the Executive Director (see paragraphs 40 to 43).

43      With regard to the second plea, alleging infringement of procedural requirements and the rights of the defence, which was broken down into two complaints, the Civil Service Tribunal rejected it in its entirety (see paragraphs 52 to 64). As regards the first complaint, having examined the facts, the Civil Service Tribunal noted, first, that the applicant had clearly understood that the Executive Director was considering the possibility of not renewing the applicant’s contract or offering the applicant a contract of less than 3 years and that, therefore, there was no infringement of Article 5 of the guidelines on the contract renewals procedure, and, secondly, that the applicant was given sufficient time to submit comments on the various options concerning the renewal of the applicant’s contract (paragraph 57). As for the second complaint, alleging that the contested decision was based on the 2011 and 2012 appraisal reports, which were vitiated by several procedural defects, the Civil Service Tribunal concluded that ESMA had not acted unlawfully in using those reports since that was in accordance with Article 4(b) of the guidelines on the procedure for the renewal of contracts.

44      With regard to the third plea, alleging an incorrect assessment of the applicant’s skills and performance, the Civil Service Tribunal rejected it in its entirety. In essence, having examined the relevant documents produced by the applicant in support of the applicant’s claims, the Civil Service Tribunal found that FT had not provided sufficient evidence to establish that ESMA had committed a manifest error in assessing FT’s skills and performance (paragraphs 72 to 85).

45      Finally, concerning the fifth plea, alleging misuse of powers, the Civil Service Tribunal rejected it as inadmissible because it had not been raised in the complaint and was not closely linked to any assertion contained therein (paragraphs 86 to 91).

46      Secondly, as regards the importance of the dispute from the point of view of EU law, it is clear from the considerations set out in paragraphs 41 to 45 above that the dispute in the main proceedings was of some interest from the point of view of EU civil service law, concerning the conditions for non-renewal of a fixed-term contract and their connection with appraisal reports.

47      Thirdly, as regards the economic interest of the dispute, it should be noted that the outcome of the dispute had significant consequences both for the applicant, in so far as it concerned the renewal of the applicant’s temporary contract, and, to a lesser extent, for ESMA.

48      Fourthly, as regards the amount of work generated by the proceedings for ESMA’s external lawyers, ESMA claims, in the circumstances, an amount of EUR 12 000, which corresponds, in its entirety, to the fees and disbursements invoiced by its two lawyers.

49      As a preliminary point, although the hourly rates charged by the external lawyers are not disputed by the applicant, it should be recalled that, in the absence, as EU law now stands, of a scale in that respect, it is only where the average hourly rate invoiced appears manifestly excessive that the Court may depart from it and fix ex aequo et bono the amount of recoverable lawyers’ fees (see, to that effect, order of 4 July 2017, EASA v Heli-Flight, C‑61/15 P‑DEP, not published, EU:C:2017:530, paragraph 16). However, the hourly rates of EUR 200 for an associate lawyer and EUR 300 for a partner do not appear manifestly excessive in the circumstances of the present case, so that it is not necessary for the Court to depart from those rates.

50      In the present case, to substantiate the amount of costs claimed, ESMA submitted two copies of its lawyers’ fee notes, the first in the amount of EUR 7 500 and the second in the amount of EUR 7 510.50. However, following the reduction of EUR 3 000 made following the letter of 9 August 2018, ESMA did not provide any indication as to the work to which that reduction corresponds. However, ESMA submitted a time sheet for 67.1 hours, 50 hours of which were spent analysing the application and preparing the defence (including putting it in order) and 17.1 hours preparing for and attending the hearing.

51      The applicant argues that even ‘the reduced claim is not objectively necessary for such a usual case’ and that, normally, such a case would only require about 30 hours of work, not 67.1 hours.

52      As regards, first, the 50 hours of work relating to the analysis of the application and preparation of the defence, for the reasons set out in paragraphs 39 to 47 above, and with regard in particular to the length of the application (29 pages, without the annexes) and the defence (initially, 47 pages, and after rectification, 32 pages, including 21 annexes), it should be noted that only 40 of the 50 hours indicated in that regard in the time sheets appear objectively justified, in particular, since the costs of rectification cannot be borne by the applicant.

53      Secondly, as regards the 17.1 hours devoted to preparation and attendance at the hearing, only 10.5 hours appear to be objectively justified. Therefore, it must be held that only 50.5 of the 67.1 hours spent on the case were objectively necessary in respect of the work to be carried out and therefore may be regarded as recoverable costs.

54      As for the disbursements invoiced, the total amount of EUR 10.50 cannot be regarded as unreasonable.

55      Therefore, the recoverable costs in the main proceedings can be assessed on an equitable basis at EUR 11 390.50.

 The submissions of the parties relating to the costs of the present proceedings

56      Each of the parties claims reimbursement of its costs relating to the present taxation of costs proceedings, while not specifying the amount of those costs.

57      As ESMA rightly observes, the Court, when fixing the costs to be recovered, takes account of all the circumstances of the case up to the date of the taxation of costs order, including the costs necessarily incurred in connection with the taxation of costs proceedings (orders of 23 March 2012, Kerstens v Commission, T‑498/09 P‑DEP, not published, EU:T:2012:147, paragraph 15, and of 12 January 2016, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13 DEP, not published, EU:T:2016:9, paragraph 14).

58      It should be noted, first, that the applicant has, in essence, been unsuccessful in all of the heads of claim in the application for taxation of the costs relating to the case in the main proceedings and, secondly, that ESMA, as is apparent from paragraphs 3 to 11 above, reasonably considered that, in the circumstances of the case, the requirements of sound administration and economy of procedure justified waiting for the applicant’s reply before lodging any application for taxation of costs.

59      In that regard, it should be noted that, contrary to what the applicant claims in paragraph 7 of the application, it is not apparent from the facts on the case file that ESMA ‘[did] not intend to trust the General Court with determining the dispute regarding the amount of the claimed costs in accordance with the taxation of costs procedure’ or that it had chosen ‘to completely disregard it’. Indeed it is the case that ESMA was entitled to file an application for taxation of costs from the moment when the applicant, by the applicant’s letter of 22 June 2017, contested the necessity for, and consequently, the recoverability of, the costs, as claimed in ESMA’s letter of 16 May 2018, of the external lawyers instructed by ESMA. However, the fact that ESMA did not make such an application after receipt of the letter of 22 June 2017 should not necessarily be interpreted as a lack of willingness to use the taxation of costs procedure before the General Court. On the contrary, the many steps taken by ESMA during the period from 22 June 2017 (date of receipt of the applicant’s observations) to 15 October 2018 (date of the last reminder sent to the applicant), are all part of an effort, as shown in ESMA’s letter of 9 August 2018, to reach an amicable agreement with the applicant on the amount of recoverable costs in order to avoid having to incur additional litigation costs before the General Court. That such an effort was made was further substantiated by the fact that, in that letter, ESMA granted a reduction of EUR 3 398.50 in relation to the amount initially requested (see paragraph 7 above).

60      It must therefore be concluded that it is for the applicant to bear the costs incurred by ESMA in these taxation of costs proceedings.

61      In the absence of an assessment by ESMA of the amount of recoverable costs relating to its observations on the application for taxation of costs filed by the applicant, the Court considers that the costs objectively necessary to defend ESMA’s interests may be assessed on an equitable basis at EUR 600, that is, 3 hours of work at an hourly rate of EUR 200. An application for taxation of costs is of a fairly standardised nature and is characterised, generally, by the absence of any difficulty for the lawyer who has already dealt with the substance of the case, particularly when the latter does not involve any particular difficulty, as was the case here in the main proceedings (see, order of 11 April 2019, Stada Arzneimittel v EUIPO — Urgo recherche innovation et développement (Immunostad), T‑403/16 DEP, not published, EU:T:2019:249, paragraph 32 and the case-law cited).

62      In the light of all the foregoing considerations, the costs recoverable by ESMA may be assessed on an equitable basis by fixing the total amount at EUR 11 990.50, which takes account of all the circumstances of the case up to the date of this order.

On those grounds,

THE GENERAL COURT (Fourth Chamber)

hereby orders:



The total amount of the costs to be reimbursed by FT to the European Securities and Markets Authority (ESMA) in Case F39/14 is fixed at EUR 11 990.50.

Luxembourg, 18 October 2019.


E. Coulon

 

H. Kanninen

Registrar

 

President


*      Language of the case: English.