ORDER OF THE GENERAL COURT (Seventh Chamber)
3 May 2011 (*)
(Taxation of costs)
In Case T‑239/08 DEP,
Comtec Translations Ltd, established in Leamington Spa (United Kingdom),
applicant,
v
European Commission, represented by N. Bambara and E. Manhaeve, acting as Agents,
defendant,
APPLICATION for taxation of the costs to be recovered from Comtec Translations by the Commission following the order of the General Court (Eighth Chamber) of 3 February 2009 in Case T‑239/08 Comtec Translations v Commission, not published in the ECR,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President (Rapporteur), I. Wiszniewska-Białecka 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 Court on 13 June 2008 and registered as Case T‑239/08, the applicant, Comtec Translations Ltd (‘Comtec’), sought annulment of the Commission’s decision of 16 April 2008 rejecting the tender which it had submitted in connection with the tendering procedure for the conclusion of multiple framework contracts for the translation of documents relating to the policies and administration of the European Union from all the official languages of the European Union into English (FL-GEN07-EN) (OJ 2007/S 180‑219517). The Commission lodged its defence on 3 October 2008.
2 By letter lodged at the Court Registry on 12 December 2008, Comtec withdrew its action, stating that it did not have sufficient resources to continue with the proceedings. It opposed any order that it should pay the costs.
3 By order of 3 February 2009, the General Court removed Case T‑239/08 from the register and ordered Comtec to pay the costs, on the basis of the first subparagraph of Article 87(5) of its Rules of Procedure.
4 By letter of 25 March 2009, the Commission informed Comtec that its costs in Case T‑239/08 amounted to EUR 11 266.44, representing EUR 260 in respect of the Commission’s administrative expenses and EUR 11 006.44 in respect of the fees charged by its external counsel.
5 By letter of 23 April 2009, Comtec contested the amount claimed by the Commission and requested it to provide a break‑down.
6 By letter of 18 May 2009, the Commission sent to Comtec a copy of the invoices submitted by its external counsel, details of the hours charged and proof of payment of the sum invoiced (namely, EUR 11 006.44).
7 In the subsequent correspondence, Comtec alluded to its financial difficulties, asked for further explanations and disputed, inter alia, its obligation to pay the costs of three lawyers who had worked on the case according to the schedule of hours worked.
8 Comtec has not paid the sum claimed to the Commission.
9 By document lodged at the Court Registry on 30 July 2010, the Commission brought the present application for taxation of costs pursuant to Article 92(1) of the Rules of Procedure.
10 Comtec did not lodge any observations on that application within the prescribed period. By letter of 20 September 2010, the solicitor who represented Comtec in the main proceedings informed the Court that he was no longer acting for Comtec.
11 As the composition of the Chambers of the Court was altered, the Judge-Rapporteur was assigned to the Seventh Chamber, to which the case was therefore assigned.
12 The Commission claims that the Court should:
– order Comtec to pay to it the sum of EUR 11 006.44, corresponding to the costs incurred by it in Case T‑239/08, together with interest for late payment at the rate applied by the European Central Bank (ECB) to its main refinancing operations, as published in the C Series of the Official Journal of the European Union, in force on the date of the order of the Court in the present case, plus three and a half percentage points from the calendar day following that on which the order is made until payment in full of the costs claimed;
– order Comtec to pay the costs relating to the present taxation proceedings.
Law
Arguments of the Commission
13 The Commission states that the sum of EUR 11 006.44 claimed by it corresponds to the fees charged by its external counsel for services rendered in the main proceedings in connection with the preparation and lodging of its defence.
14 It submits that the case was particularly sensitive for the Commission as it concerned the regularity of a tendering procedure accessible to and known of by all interested companies in the 27 Member States of the European Union. The case was particularly significant since the tendering procedure in question related to the conclusion of framework contracts for the translation of documents relating to the policies and administration of the European Union from all the official languages of the Union into English.
15 The Commission considers that the main proceedings were particularly complex from a factual, technical and economic point of view. It states that a whole range of procedural issues had to be dealt with appropriately, ranging from questions of admissibility to issues relating to the merits of the case and the production of documents.
16 The Commission’s lawyer and his associates worked on the case for a total of 105 hours and 6 minutes, chargeable at hourly rates ranging from EUR 50 to EUR 140, only part of which was charged to the Commission because the lawyer himself deducted EUR 2 000 from the final bill in accordance with a special rate which he applied to the Commission.
17 The Commission considers that, in view of the complexity of the case, the background work entailed and the content and volume of the written submission, the average hourly rate of remuneration and the total number of hours devoted to the case by its lawyer for which the Commission paid were objectively justified for the purpose of the proceedings before the Court.
Findings of the Court
18 Under Article 92(1) of the Rules of Procedure, ‘[i]f there is a dispute concerning the costs to be recovered, the General Court hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie’.
19 According to 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 to be regarded as recoverable costs.
20 It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, second, to those which are necessary for that purpose (order in Case T-342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13).
21 Where an institution decides, as it is permitted to do under the first paragraph of Article 19 of the Statute of the Court of Justice, that the agent appointed by it is to be assisted by a lawyer, the remuneration of that lawyer necessarily constitutes expenses necessarily incurred for the purpose of the proceedings within the meaning of Article 91(b) of the Rules of Procedure (order of 11 December 2009 in Case T‑132/98 DEP Groupe Perry and Isibiris v Commission, not published in the ECR, paragraph 23).
22 It is settled case-law that the Community 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 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 order in Airtours v Commission, cited in paragraph 20 above, paragraph 17 and the case‑law cited).
23 It has also been consistently 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 Community 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 20 above, paragraph 18 and the case-law cited).
24 Moreover, it is for the Court to take account primarily of 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 24 June 2010 in Case T‑66/04 DEP Gogos v Commission, not published in the ECR, paragraph 19 and the case‑law cited).
25 It is on the basis of those factors that the amount of recoverable costs is to be assessed in this case.
26 First, with regard to the purpose and nature of the present case, its significance from the point of view of Community law and the difficulties presented by the case, the Court observes as follows.
27 Contrary to what is claimed by the Commission, it cannot be accepted that the action in the main proceedings was particularly sensitive for the Commission. In its application, Comtec argued, essentially, that the evaluation committee was incorrect in rejecting its tender at the selection phase on the ground that it had not provided sufficient evidence of the professional experience of the members of the team which it proposed. Essentially, the main proceedings raised three issues: first, whether, in the light of the requirements set out in the tendering specifications, the supporting documents provided by Comtec to demonstrate the professional experience of those members were sufficient; second, whether, as Comtec claimed, the evaluation committee failed to take proper account of its successful performance over a period of 12 years in carrying out translations for the Commission; and, third, whether sufficient reasons were given for the decision to reject its tender. It cannot be accepted, as the Commission contends, that a successful outcome for Comtec would have had repercussions for the credibility and image of the Commission, because the issues raised by the main proceedings cannot be regarded as particularly sensitive.
28 As regards the significance of the case from the point of view of Community law, it raised no new point of Community law.
29 Lastly, the case also did not involve any particular difficulty and was not complex from either a factual or technical point of view.
30 Second, the Commission had a certain degree of financial interest in the case as the tendering procedure concerned the conclusion of framework contracts for the translation of documents relating to the policies and administration of the European Union from all its official languages into English.
31 Third, as regards the amount of work required in the course of the proceedings, it should be noted that, in the main action, there was a single exchange of written pleadings, since Comtec withdrew its action before lodging a reply. The only recoverable costs are therefore those pertaining to studying the case‑file and drafting the defence.
32 It should also be noted that the application in the main proceedings consisted of only 5 pages and 5 annexes totalling 24 pages. It is undoubtedly the case that the lawyer representing the Commission and his associates had to put in a certain amount of work in order to analyse the main application and identify the arguments raised and that they identified an issue relating to admissibility. It is also the case that the preparation of the defence, which consisted of 19 pages and nine annexes totalling 71 pages, called for the analysis of a number of documents. Nevertheless, the volume of documentation which the lawyer representing the Commission and his associates were required to study in order to prepare the defence must be regarded as fairly small.
33 In the present case, in the light of the concise nature of the legal argument set out in the application, the total of 105 hours and 6 minutes work charged appears excessive.
34 The Court considers that, in the circumstances of the case, the total number of hours of work objectively necessary for studying the case‑file and drafting the defence was 50 hours.
35 With regard to professional fees, the average rate charged by the lawyer representing the Commission and his associates, disregarding the EUR 2 000 deduction from the final bill, was EUR 123.75 per hour.
36 In view of the financial interest which the Commission had in the case, that hourly rate was justified.
37 In view of the foregoing, the Court considers that the costs recoverable by the Commission from Comtec can be assessed on an equitable basis at EUR 6 187.50, corresponding to 50 hours’ work at a rate of EUR 123.75.
38 With regard to the costs of the present proceedings, it should be recalled that the Court, when determining the recoverable costs, takes account of all the circumstances of the case up to the date on which the order for taxation of costs is signed. Therefore, there is no need to rule separately on the expenses incurred for the purpose of the present proceedings (see, to that effect, order in Case C‑104/89 DEP Mulder and Others v Council and Commission [2004] ECR I‑1, paragraph 87). Accordingly, the amount of recoverable costs should not be increased by adding an amount relating to the present proceedings for taxation of costs.
39 As regards the Commission’s claim for interest for late payment, it should be noted that a claim for interest for late payment is valid from the day on which the order for taxation of costs is served on the parties (see, to that effect, order of 10 November 2009 in Case F‑14/08 DEP X v Parliament, not yet published in the ECR, paragraph 38).
40 The rate of interest applicable is calculated on the basis of the rates set by the ECB for its main refinancing operations that are applicable during the period concerned, plus three and a half percentage points, in accordance with the rate specified in Article 86(2)(b) of Commission Regulation (EC, Euratom) No 2342/2002 of 23 December 2002 laying down detailed rules for the implementation of Council Regulation (EC, Euratom) No 1605/2002 on the Financial Regulation applicable to the general budget of the European Communities (OJ 2002 L 357, p. 1).
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
The total amount of the costs to be reimbursed by Comtec Translations Ltd is fixed at EUR 6 187.50, such sum to bear interest for late payment from the date on which the present order is served until the date of actual payment. The rate of interest to be applied shall be calculated on the basis of the rates set by the European Central Bank (ECB) for its main refinancing operations that are applicable during the period in question, plus three and a half percentage points.
Luxembourg, 3 May 2011.