ORDER OF THE GENERAL COURT (Seventh Chamber)
19 February 2024 (*)
(Procedure – Taxation of costs)
In Case T‑761/20 DEP,
European Dynamics Luxembourg SA, established in Luxembourg (Luxembourg), represented by M. Sfyri, lawyer,
applicant,
v
European Central Bank (ECB), represented by I. Koepfer and J. Krumrey, acting as Agents, and by A. Rosenkötter, lawyer,
defendant,
THE GENERAL COURT (Seventh Chamber),
composed of K. Kowalik-Bańczyk, President, E. Buttigieg (Rapporteur) and G. Hesse, Judges,
Registrar: V. Di Bucci,
having regard to the judgment of 5 October 2022, European Dynamics Luxembourg v ECB (T‑761/20, EU:T:2022:606),
makes the following
Order
1 By its application, based on Article 170 of the Rules of Procedure of the General Court, the defendant, the European Central Bank (ECB), requests that the Court fix at EUR 27 820 the amount of recoverable costs to be paid by the applicant, European Dynamics Luxembourg SA, in respect of the expenses incurred by the ECB in connection with the proceedings in Case T‑761/20.
Background to the dispute
2 By application lodged at the General Court Registry on 20 December 2020 and registered under number T‑761/20, the applicant brought an action seeking, first, on the basis of Article 263 TFEU, annulment of (i) the decision of the Procurement Committee of the ECB of 1 October 2020 to exclude its tenders submitted for the three lots in the procurement procedure Provision of services and works for IT application delivery (‘the decision of 1 October 2020’), (ii) the decision of the ECB Procurement Review Body of 9 December 2020 (‘the decision of 9 December 2020’) and (iii) all the subsequent related decisions of the ECB, and, secondly, on the basis of Article 268 TFEU, compensation for the damage the applicant allegedly suffered as a result of that exclusion.
3 By judgment of 5 October 2022, European Dynamics Luxembourg v ECB (T‑761/20, EU:T:2022:606), the Court dismissed the action and ordered the applicant to pay the costs incurred by the ECB.
4 By letter of 23 February 2023, the ECB informed the applicant that the total amount of costs recoverable was EUR 29 300, of which EUR 27 320 related to the main proceedings and EUR 1 980 to the taxation of costs proceedings.
5 By letter of 10 March 2023, the applicant informed the ECB that the amount claimed was disproportionate to the needs of the case and proposed to pay the sum of EUR 10 000 in order to close the dispute amicably.
6 By letter of 3 April 2023, the ECB replied to the applicant that that sum of EUR 10 000 could not be accepted in respect of the main proceedings and reduced the initial amount from EUR 1 980 to EUR 500 in respect of the taxation of costs proceedings because it had carried out a downwards revision of the costs relating to those proceedings on the basis of the case-law, thereby bringing the total amount claimed to EUR 27 820.
7 By letter of 24 April 2023, the applicant proposed a sum of EUR 18 620, explaining that the fees of the ECB’s second external lawyer and the costs associated with the letters relating to the taxation of costs should not be taken into account.
8 On 4 May 2023, the ECB rejected that proposal and claimed the amount set out in its earlier letter. It set the final deadline for payment at 22 May 2023, which expired without any reaction from the applicant. Thus, no agreement was reached between the parties on the amount of the recoverable costs.
Forms of order sought
9 The ECB claims that the Court should:
– fix the amount of recoverable costs to be reimbursed by the applicant at a total of EUR 27 820, of which EUR 27 320 in respect of the main proceedings and EUR 500 in respect of the present taxation of costs proceedings;
– deliver an enforceable copy of the order to the applicant.
10 The applicant claims that the Court should:
– fix the amount of recoverable costs at EUR 10 062.05 in respect of the main proceedings;
– in the alternative, order the ECB to pay the costs of the present proceedings.
Law
11 Under Article 170(3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court is, at the request of the party concerned, to give its decision by way of an order from which no appeal is to lie, after giving the party concerned by the application an opportunity to submit its observations.
12 Under Article 140(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. It follows from that provision that recoverable costs are limited to those incurred for the purpose of the proceedings before the Court, which were necessary for that purpose (see order of 6 March 2003, Nan Ya Plastics and Far Eastern Textiles v Council, T‑226/00 DEP and T‑227/00 DEP, EU:T:2003:61, paragraph 33 and the case-law cited).
13 In fixing recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (see order of 21 January 2015, Hangzhou Duralamp Electronics v Council, T‑459/07 DEP, not published, EU:T:2015:68, paragraph 18 and the case-law cited).
14 In the present case, in the application for taxation of costs, the ECB seeks reimbursement of the lawyers’ fees incurred in the main proceedings and in the present taxation of costs proceedings.
15 In that regard, it is settled case-law that 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 which may be recovered from the party ordered to pay the costs (see order of 20 May 2022, Moi v Parliament, T‑17/19 DEP, not published, EU:T:2022:352, paragraph 11 and the case-law cited).
16 In addition, in the absence of provisions of EU law laying down fee-scales or the length of time necessary for the work to be done, the Court must freely assess the details of the case, taking account of the subject matter and nature of the dispute, its significance 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 represented for the parties (see order of 26 January 2017, Nürburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 11 and the case-law cited).
17 The amount of the costs recoverable in the present case must be determined in accordance with those criteria.
The costs relating to the main proceedings
18 The ECB seeks reimbursement of costs in the amount of EUR 27 320 in respect of the main proceedings, corresponding to the lawyers’ fees incurred.
The subject matter and nature of the dispute, its significance from the point of view of EU law, the difficulties presented by the case and the economic interest of the dispute for the ECB
19 In the first place, the action in the main proceedings concerned public procurement law and sought, first, annulment of (i) the decision of 1 October 2020, (ii) the decision of 9 December 2020 and (iii) all the subsequent related decisions of the ECB and, secondly, compensation for the damage allegedly suffered by the applicant.
20 In the second place, as regards the difficulties presented by the case in the main proceedings, it should be noted that the context of Case T‑761/20 – concerning the ECB’s decision to exclude the applicant’s tenders for the three lots of the procurement procedure at issue – involved complexity from the point of view of EU law. Thus, the drafting of the defence and, for that purpose, the examination of the four grounds for exclusion, and, in particular, the ground relating to ‘[attempts] to unduly influence the decision-making process in the procurement procedure’, within the meaning of Article 30(5)(g) of Decision ECB/2016/2, read in conjunction with Article 26(1) of that decision, as well as the identification of the applicable rules of EU law, had presented a certain difficulty for the ECB’s external lawyers.
21 In the third place, as regards the significance of the case in the main proceedings from the point of view of EU law, it should be recalled that, according to settled case-law:
– a case is of minor significance where, in essence, the point of law which it raises is not new and is not particularly complex (order of 13 December 2013, Marcuccio v Commission, T‑402/09 P‑DEP, not published, EU:T:2013:683, paragraph 36);
– a case has a certain significance for EU law where, in essence, it contains a relatively new point of law, which was not entirely settled at the time the action was brought (see orders of 14 March 2016, Grazyte v Commission, T‑86/13 P‑DEP, not published, EU:T:2016:162, paragraph 21, and of 21 January 2015, Iranian Offshore Engineering & Construction v Council, T‑110/12 DEP, not published, EU:T:2015:61, paragraph 16) and where it is one of the first cases relating to a certain area of EU law (see order of 20 October 2015, Kwang Yang Motor v OHIM, T‑11/08 DEP, not published, EU:T:2015:831, paragraph 16).
22 In the present case, it must be borne in mind that, in support of its claims for annulment in the main proceedings, the applicant relied on three pleas in law, alleging respectively, first, manifest errors of assessment, secondly, the introduction of a new, vague and unknown criterion at the stage of the evaluation of the tenders and, thirdly, misuse of powers.
23 That said, it must be noted that Case T‑761/20 had a certain significance from the point of view of EU law in so far as concerned its analysis of the third part of the first plea concerning the application by the ECB, in the context of Decision ECB/2016/2, of the ground for exclusion relating to attempts to unduly influence decision-making in the procurement procedure under Article 30(5)(g) of Decision ECB/2016/2, read in conjunction with Article 26(1) of that decision. This was a relatively new point of law which had not yet been settled at the time the action was brought.
24 The case in the main proceedings must, therefore, be regarded as involving an average degree of difficulty and as having particular significance from the point of view of EU law as a whole.
25 In the fourth place, as regards the economic interests at stake, it must be held that the dispute was of significant economic interest to the parties. Indeed, the total estimated value of the call for tenders was EUR 598 million (excluding VAT), and the amount of damages amounted to EUR 14.09 million.
26 Admittedly, the applicant states that since the estimated value of the contracts was calculated by reference to the total duration of 48 months and it had the right to terminate them without cause, there was no certainty as to the fact that the contracts would last 48 months. In that regard, it must, however, be recalled that, according to the case-law, the financial interests which the parties had in the proceedings must be determined by taking into account the value of the contract which was the subject of the public procurement procedure at issue in the main proceedings (see order of 4 November 2008, Evropaïki Dynamiki v Commission, T‑303/04 DEP, not published, EU:T:2008:471, paragraph 39).
27 It follows that, for the same reasons, the applicant’s argument that the sum of EUR 15 million, which corresponded approximately to the amount of damages claimed by the applicant in the context of the main proceedings before the Court, would not give rise to any risk in the light of its annual accounts must be rejected.
28 Consequently, it must be held that the case in the main proceedings involved an average degree of difficulty, had particular significance from the point of view of EU law and was of significant economic interest to the parties.
The amount of work which the contentious proceedings generated for the ECB’s external lawyers
29 As regards the amount of work which the case in the main proceedings generated for the ECB’s external lawyers, it should be borne in mind that the Courts of the European Union are not bound by the statement of costs submitted by the party wishing to recover costs. The primary consideration of those courts is the total number of hours of work which may appear to have been 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 10 May 2023, Electroquimica Onubense v ECHA, T‑481/18 DEP, not published, EU:T:2023:271, paragraph 25 and the case-law cited).
30 It must also be borne in mind that the ability of the EU Courts to assess the value of work carried out is dependent on the accuracy of the information provided (see order of 13 January 2006, IPK-München v Commission, T‑331/94 DEP, EU:T:2006:11, paragraph 46 and the case-law cited).
31 In the present case, the ECB produces four fee notes, issued by the law firm FPS Fritze Wicke Seelig Partnerschaftsgesellschaft von Rechtsanwälten mbB (‘FPS’) on 10 March, 17 August and 16 September 2021 and 1 December 2022, addressed to the ECB. Those invoices show lawyers’ fees totalling EUR 27 320 excluding VAT, which corresponds to 143.9 hours of work at an hourly rate of EUR 189.85. Before the Court, the ECB produces the detailed breakdown of those hours of work and the list of the services provided at the various stages of the work for the period from January 2021 to October 2022. According to that breakdown, the hours of work are divided between its two external lawyers, Ms Rosenkötter and Ms Fritz, who claim to have worked 62.3 hours and 81.6 hours respectively. The tasks performed by those lawyers are described, inter alia, as follows: ‘review of the application’, ‘legal research regarding damages’, ‘draft of defence statement’, ‘finalisation first draft [of statement of defence]’, ‘legal part regar[d]ing undu[e] influence and mis[]representation’, ‘review of Tender document, Submission form and evaluation report’, ‘legal research regarding exclusion grounds in previous procedures’, ‘further review of documents’, ‘review reply’, ‘preparation rejoinder’, ‘review rejoinder [by second external lawyer]’, ‘answers to the additional questions of the Court’ and ‘review of j[uri]sdiction regarding exclusion based on discrepancies in the offer’.
32 In those circumstances, it is necessary to assess whether the costs for which the ECB seeks reimbursement are recoverable.
– The recoverability of the lawyers’ fees
33 The applicant submits that not all the lawyers’ fees claimed are recoverable, since both their existence and lawfulness are questionable.
34 In the first place, as regards the existence of the expenses incurred, the applicant questions whether one of the ECB’s two external lawyers provided the services in respect of which the costs are claimed. In support of its contention, the applicant states that, from reading the defence, the rejoinder and the ECB’s written observations containing the replies to the measures of organisation of procedure put forward by the Court, the ECB’s second external lawyer did not participate in the case since her signature does not appear on the abovementioned documents. Accordingly, it submits that there is no proof that expenses of the second counsel were necessarily incurred within the context of the case in the main proceedings.
35 In that regard, it must first of all be borne in mind that, according to the case-law, in situations where recourse is had to several lawyers, advisers or agents, the limitation imposed by the case-law does not in itself concern the number of persons involved, but the recovery of the expenses accumulated by all those persons. Moreover, such recovery is not prohibited per se, since a specific approach to determining the expenses necessarily incurred is preferred. Indeed, as stated in paragraph 29 above, it is established that, when fixing the amount of the recoverable costs, the Court should take account of the total number of hours’ work corresponding to the services provided and considered objectively necessary for the purpose of the proceedings concerned, irrespective of the number of lawyers who may have provided those services (order of 23 March 2012, Kerstens v Commission, T‑498/09 P‑DEP, not published, EU:T:2012:147, paragraph 19).
36 Furthermore, it must be borne in mind that it is settled case-law that, as is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice, applicable before the General Court by virtue of the first paragraph of Article 53 of that statute, the EU institutions are free to have recourse to the assistance of a lawyer. The latter’s remuneration therefore comes within the concept of expenses necessarily incurred for the purpose of the proceedings (see orders of 24 March 1998, International Procurement Services v Commission, T‑175/94 (92), EU:T:1998:63, paragraph 9 and the case-law cited, and of 11 December 2006, APOL v Commission, T‑61/00 DEP, not published, EU:T:2006:380, paragraph 14).
37 Consequently, although the fact that the ECB instructed two external lawyers, who belong to the same law firm, may have an impact on the determination of the amount of costs incurred for the purpose of the proceedings ultimately to be recovered, that circumstance has, by contrast, no effect on the potentially recoverable nature of those costs, since there is nothing to preclude them as a matter of principle.
38 Furthermore, according to the case-law, while, in principle, the remuneration of only one 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 140(b) of the Rules of Procedure (see, by analogy, order of 21 July 2016, Panrico v Bimbo, C‑591/12 P‑DEP, not published, EU:C:2016:591, paragraph 28 and the case-law cited).
39 In taxing costs in those circumstances, the Court must examine the extent to which the services supplied by all the advisers 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 fees (orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 44, and of 3 May 2012, CSL Behring v Commission and EMA, T‑264/07 DEP, not published, EU:T:2012:211 paragraph 26).
40 In the present case, it must first of all be borne in mind that, according to the breakdown referred to in paragraph 31 above, the hours of work are divided between the ECB’s two external lawyers, Ms Rosenkötter and Ms Fritz, who claim to have worked 62.3 hours and 81.6 hours respectively.
41 Next, it is apparent from the information provided by the ECB in its observations concerning the present application, and in particular from the list of services provided by the two external lawyers included in the statement of costs annexed to its application for taxation of costs (‘the statement of costs’), that the second external lawyer, as well as carrying out additional legal research, carried out mainly a second review of the documents prepared by the first external lawyer and made amendments to those documents. In that regard, it should be noted that the intervention of the two lawyers for the drafting of the defence and rejoinder did not, admittedly, give rise to a strict duplication of the tasks invoiced. However, the second lawyer intervened mainly at an advanced stage, for the purposes of rereading, adding comments where appropriate. It must, therefore, be held that the costs of the second external lawyer were not entirely necessary in the main proceedings and that they constituted in part a duplication of fees.
42 By contrast, it cannot be inferred from the fact that the external lawyer did not sign the ECB’s written pleadings that this had any effect on the existence of the costs actually incurred, since that formality is, moreover, optional.
43 In the second place, as regards the lawfulness of the expenses incurred, it must be noted that the ECB seeks reimbursement of approximately 143.9 hours relating to the work carried out by its two external lawyers in preparing and drafting pleadings during the period from 5 January 2021 to 5 October 2022.
44 The applicant maintains, for its part, that the expenses relating to the period after the last procedural action, that is after the submission of the responses to the measures of organisation of procedure adopted by the Court, should not be reimbursed. More specifically, the applicant submits that, according to the ECB, 143.9 hours of work were provided during the period from January 2021 to October 2022, even though the last procedural action of the ECB took place on 25 February 2022.
45 On that point, it must be found, in the light of the statement of costs, that 0.40 hours were devoted to examining the judgment delivered by the Court on 5 October 2022.
46 According to settled case-law, only services relating to the proceedings before the Court may give rise to recovery. Consequently, the costs relating to the hours spent examining the judgment of the Court of 5 October 2022 and in discussing that judgment with the client are not considered to be expenses necessarily incurred for the purpose of the proceedings and must be excluded from the amount of recoverable costs (see orders of 10 April 2014, Éditions Odile Jacob v Commission, T‑279/04 DEP, not published, EU:T:2014:233, paragraph 39 and the case-law cited; of 7 May 2020, Gibson Brands v EUIPO – Wilfer (Shape of a guitar body), T‑340/18 DEP, not published, EU:T:2020:206, paragraph 25; and of 20 October 2023, Malacalza Investimenti v ECB, T‑552/19 OP‑DEP, not published, EU:T:2023:668, paragraph 39).
47 The fees relating to those tasks must, therefore, be excluded from the amount of recoverable costs.
48 In the light of the foregoing considerations, it is appropriate to deduct 0.40 hours from the total number of hours for which the ECB seeks reimbursement by way of recoverable costs.
– The amount of recoverable lawyers’ fees
49 It is now necessary to examine whether the recoverable costs claimed by the ECB constitute expenses necessarily incurred within the meaning of Article 140(b) of the Rules of Procedure, in particular whether the hourly rate applied in that context was justified and whether the number of hours of work of the lawyers invoiced was objectively necessary in relation to the services provided (see, to that effect, order of 27 April 2020, Spiegel-Verlag Rudolf Augstein and Sauga v ECB, T‑116/17 DEP, not published, EU:T:2020:168, paragraph 18).
50 It should be borne in mind that, according to the case-law referred to in paragraph 29 above, the Courts of the European Union are not bound by the statement of costs submitted by the party wishing to recover costs. The primary consideration of those courts is the total number of hours of work which may appear to have been 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 10 May 2023, Electroquimica Onubense v ECHA, T‑481/18 DEP, not published, EU:T:2023:271, paragraph 25 and the case-law cited).
51 In order to determine the number of hours necessary for the purpose of the proceedings before the Court, account must be taken, inter alia, of the number of pages of pleadings drawn up by the lawyers, the number of pleas raised, the difficulty of the legal issues raised, the number of exchanges of pleadings and whether or not the lawyers of the applicant for taxation represented that party during the pre-litigation stage (order of 22 December 2022, Team Beverage v EUIPO (Team Beverage), T‑359/20 DEP, not published, EU:T:2022:857, paragraph 24).
52 As stated in paragraph 31 above, the ECB claims, by way of lawyers’ fees, reimbursement of an amount of EUR 27 320, corresponding to 143.9 hours of work for the ECB’s two external lawyers, invoiced at an hourly rate of EUR 189.85. In that regard, it should be noted that, in the statement of costs, the ECB indicates, precisely, the number of hours relating to the preparation of each of the documents sent to the Court in the main proceedings. Before the Court, the ECB produces the detailed breakdown of those hours of work and the list of the services provided at the various stages of the work for the period from January 2021 to October 2022.
53 For its part, the applicant contends that the services of external lawyers did not require 143.9 hours of work and submits that 53 hours of work would have been sufficient and objectively indispensable in order to cover the needs of the case and, consequently, it argues that the amount recoverable in respect of lawyers’ fees should be EUR 10 062.05.
54 In the present case, it should be noted that the main proceedings before the Court consisted solely of a written part. During that part, the ECB first of all examined the application, lodged at the Court Registry on 20 December 2020, totalling 34 pages and which contained, moreover, a summary of the facts and the procedure, 22 pages of argument and numerous extracts from documents relating to the procurement procedure. The application contained three pleas in law, the first of which was divided into five parts and concerned four grounds for exclusion. That application was, moreover, accompanied by 33 annexes of 603 pages in total, the examination of which required significant work from the ECB’s external lawyers, since they included, in particular, the following: the decisions of 1 October and 9 December 2020; the proofs of the submission of tenders in response to the three lots of the call for tenders; the invitations to tender and the annexes thereto, tender submission forms; and numerous letters drafted by the applicant and addressed to the ECB, and vice versa, which related in particular to requests for additional information concerning prices which appeared abnormally low, and to the ground of exclusion regarding attempts to unduly influence the ECB’s decision-making in the tender procedure.
55 Next, the ECB responded to the application by a defence, lodged at the Court Registry on 10 May 2021, totalling 45 pages and which contained 28 pages of argument. That pleading was also accompanied by 23 annexes, totalling 361 pages. Those annexes included, in particular, in addition to certain documents contained in the annexes to the application, namely annexes to the invitations to tender, and questions/answers relating to the tenderer’s bids, tender submission forms, and other letters drafted by the applicant and addressed to the ECB and vice versa, which related mainly to requests for additional information concerning prices that appeared abnormally low, and to the ground of exclusion regarding attempts to unduly influence the ECB’s decision-making in the tendering procedure.
56 In addition, the reply to which the ECB responded consisted in 3 pages of preliminary remarks relating to the factual background presented by the ECB and 20 pages of argument. It was also accompanied by five annexes.
57 Moreover, the rejoinder contained two pages concerning additional clarifications of the claims made by the applicant in its reply and seven and a half pages of argument relating to the arguments contained in the applicant’s reply. The rejoinder also included two annexes.
58 Thus, although the ECB’s two external lawyers did not have to prepare for or participate in a hearing in the case in the main proceedings, the fact remains that the preparation and drafting of the defence and the rejoinder necessarily involved, inter alia, reading the documents in the file, studying the documents relating to the procurement procedure (642 pages in total), including the numerous annexes, which were voluminous, as well as analysing the various pleas in law and assessing four different grounds for exclusion, more particularly the ground ‘[attempts] to unduly influence the decision-making process in the procurement procedure’, which had never previously been dealt with in EU case-law.
59 Lastly, it should be noted that, as the ECB rightly states, the two external lawyers had not been involved in the administrative procedures before the ECB’s procurement review body in the context of that case, with the result that they did not have in-depth knowledge of the case file.
60 However, the fact remains that it cannot be excluded, in the light of the fee notes, that the involvement of the two external lawyers may have given rise to a certain duplication of effort, which could be apparent from the considerable number of hours allocated to the second external lawyer, who was principally responsible for rereading the defence and rejoinder drafted by the first external lawyer, and from the imprecision of certain tasks carried out by the second external lawyer corresponding to the drafting of ‘further review of documents’ and ‘review … mails’. While it is true that a strict duplication of the tasks invoiced can be excluded, not all of the hours invoiced can be regarded as necessary.
61 Accordingly, taking into account a certain duplication of effort, the number of hours put forward by the ECB appears excessive as regards the assessment of the recoverable costs.
62 Consequently, in the light of the documents in the file and the circumstances of the present case, and the description of the tasks contained in the four invoices referred to in paragraph 31 above, coupled with the details in that regard in the application for taxation of costs, it would be a fair assessment of the time objectively necessary for the purpose of the main proceedings to fix it at 112.5 hours.
63 As regards the hourly rate applicable, it should be borne in mind that, according to settled case-law, in the absence, as EU law currently stands, of a scale in that regard, 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 order of 17 May 2023, Heitec v EUIPO – Hetec Datensysteme (HEITEC), T‑520/19 DEP, not published, EU:T:2023:272, paragraph 37 and the case-law cited).
64 The ECB states that the hourly rate applied for the services provided by its two external lawyers in the main proceedings is EUR 189.85.
65 It should be noted that the applicant does not dispute that hourly rate inasmuch as it considers it proportionate to the needs of the case.
66 In the light of the characteristics of the present case, in particular those referred to in paragraphs 54 to 59 and 65 above, the Court considers that the rate invoiced does not appear to be manifestly excessive.
Conclusion on the costs relating to the main proceedings
67 It follows that the amount of costs recoverable by the ECB in the main proceedings is fixed at EUR 21 358.12.
Costs relating the present taxation of costs proceedings
68 For the conduct of the present taxation of costs proceedings, the ECB seeks reimbursement of costs in the amount of EUR 500 corresponding to 12 hours of work.
69 In support of its application, the ECB produces three invoices, issued by the law firm FPS on 2 and 20 February 2023 addressed to the ECB and setting out lawyers’ fees, for a total amount of EUR 500, excluding VAT, corresponding to 12 hours of work carried out by one of the two external lawyers of the ECB within that firm during the periods from 1 to 31 December 2022 and from 1 January to 20 February 2023. The invoices do not indicate the hourly rate.
70 The applicant submits, in essence, that the costs relating to the preparation of the application for taxation of costs do not constitute recoverable costs in that they do not relate to the proceedings before the Court. It also submits that the time taken preparing the application for taxation of costs and the amount claimed by ECB in that regard are unreasonable.
71 In that regard, it should be noted that, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of costs, including expenses necessarily incurred in relation to the taxation of costs 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 31 and the case-law cited).
72 According to settled case-law, 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 (see order of 11 April 2019, Immunostad, T‑403/16 DEP, not published, EU:T:2019:249, paragraph 32 and the case-law cited).
73 In the present case, the ECB’s application for taxation of costs, lodged at the Court Registry on 17 August 2023, consists in four pages, three of which are devoted to the ECB’s arguments and set out brief arguments concerning the costs claimed by the ECB. The ECB attached to its application for taxation of costs three annexes setting out the invoices issued by the law firm FPS, each containing three pages. It appears primarily from the three invoices that the external lawyer of the ECB spent 12 hours of work in carrying out research relating to recoverable costs, sending emails concerning the finalisation of the ‘reimbursement letter’ and drafting the application for taxation of costs.
74 Accordingly, in the light of all those factors, the Court considers that the total of 12 hours of work devoted to the present proceedings, as accepted in the application for taxation of costs submitted by the ECB, is not excessive.
75 It follows that the total amount of recoverable costs in respect of the present taxation of costs proceedings is fixed at EUR 500.
Conclusion
76 In the light of all of the foregoing considerations, the Court considers that the costs recoverable by the ECB will be fairly assessed by fixing their amount at EUR 21,858.12, which takes account of all the circumstances of the case up to the date of the present order.
The request for an authenticated copy of the order for the purposes of enforcement
77 In its second head of claim, the ECB requests that an authenticated copy of the present order be dispatched to the applicant.
78 In that regard, it is sufficient, first, to observe that, in accordance with Article 280 TFEU, the present order is enforceable in the conditions laid down in Article 299 TFEU. Secondly, even though Article 170(4) of the Rules of Procedure expressly gives the parties the right to request an authenticated copy of the order for the purposes of enforcement, there is no need to give a formal ruling on that request as it is purely a matter of administration and falls outside the subject matter of the present dispute concerning taxation of the parties’ recoverable costs (see, to that effect, order of 6 June 2019, Damm v EUIPO – Schlossbrauerei Au, Willibald Beck Freiherr von Peccoz (EISKELLER), T‑859/16 DEP, not published, EU:T:2019:402, paragraph 32 and the case-law cited).
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
The total amount of costs to be reimbursed by the applicant is fixed at EUR 21 858.12.
Luxembourg, 19 February 2024.
V. Di Bucci | | K. Kowalik-Bańczyk |