ORDER OF THE GENERAL COURT (Seventh Chamber)
6 June 2019 (*)
(Procedure — Taxation of costs)
In Case T‑477/15 DEP,
European Dynamics Luxembourg SA, established in Luxembourg (Luxembourg),
European Dynamics Belgium SA, established in Brussels (Belgium),
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),
represented by M. Sfyri, lawyer,
applicants,
v
European Chemicals Agency (ECHA), represented by M. Heikkilä and C. Bergerat, acting as Agents,
defendant,
APPLICATION for taxation of costs lodged by the European Chemicals Agency (ECHA) following the judgment of the General Court of 1 February 2018, European Dynamics Luxembourg and Others v ECHA (T‑477/15, not published, EU:T:2018:52),
THE GENERAL COURT (Seventh Chamber),
composed of V. Tomljenović, President, E. Bieliūnas and A. Marcoulli (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 20 August 2015, the applicants, European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, brought an action (i) under Article 263 TFEU for annulment of the decisions notified by letters of 25 June 2015 by which the European Chemicals Agency (ECHA) rejected the tender of the European Dynamics consortium for Contract No ECHA/2014/86 for the provision of IT services for the IT applications of ECHA and awarded that contract to another tenderer and (ii) under Article 268 TFEU for compensation for the damage which they claimed to have suffered.
2 By judgment of 1 February 2018, European Dynamics Luxembourg and Others v ECHA (T‑477/15, not published, EU:T:2018:52), the General Court dismissed the action and ordered the applicants to pay the costs on the basis of Article 134(1) of the Rules of Procedure of the General Court.
3 By letter of 20 June 2018, ECHA informed the applicants that a debit note would be drawn up for the purposes of the payment of the recoverable costs, which it claimed amounted to EUR 25 562.59. At the applicants’ request, ECHA sent to them by letter of 28 June 2018 the invoices for the legal fees, together with a breakdown of the expenses incurred as a result of the participation of two agents in the hearing.
4 By letter of 17 July 2018, the applicants stated that, in their opinion, the amount requested as recoverable costs was disproportionate. They proposed capping the amount at EUR 15 000.
5 By letter of 18 September 2018, ECHA reduced the total amount of the costs requested to EUR 24 588.37 by excluding the expenses incurred as a result of the participation of one of the agents in the hearing.
6 By letter of 21 September 2018, the applicants proposed setting the amount of the recoverable costs at EUR 18 000.
7 By document lodged at the Court Registry on 11 December 2018, ECHA requested that the Court, first, set the amount of the recoverable costs at EUR 24 588.37 under Article 170(1) of the Rules of Procedure and, second, include in the recoverable costs the costs incurred by ECHA in the taxation of costs proceedings in the event of a hearing.
8 On 29 January 2019 the applicants submitted their observations on the application for taxation of costs. They requested that the Court, first, set the amount of the recoverable costs at EUR 13 598.37 and, second, dismiss ECHA’s request to include the costs of the present proceedings and, in the alternative, order ECHA to pay the costs of those proceedings.
Law
9 Under Article 170(1) to (3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, at the request of the party concerned, the Court is to give its decision by way of an order from which no appeal lies, after giving the party concerned by the application an opportunity to submit its observations.
10 According to 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 regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those costs incurred for the purpose of the proceedings before the Court and, second, to those which were necessary for that purpose (see order of 16 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint undertaking Fusion for Energy, T‑553/13 DEP, not published, EU:T:2018:199, paragraph 16 and the case-law cited).
11 With regard to legal fees, it should be borne in mind that, 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 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 its agents or advisers (see order of 12 January 2016, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13 DEP, not published, EU:T:2016:9, paragraph 12 and the case-law cited).
12 It is also settled case-law that, in the absence of 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 EU 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 of 28 June 2016, MIP Metro v EUIPO — Holsten-Brauerei (H), T‑193/12 DEP, not published, EU:T:2016:404, paragraph 11 and the case-law cited).
13 Lastly, in setting the recoverable costs, the Court takes account of all the circumstances of the case up to the signing of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (see order of 25 June 2018, BASF v EUIPO — Evonik Industries (DINCH), T‑721/15 DEP, not published, EU:T:2018:396, paragraph 11 and the case-law cited).
14 The amount of the recoverable costs in the present case should be determined in the light of those considerations.
15 As was noted in paragraph 7 above, ECHA seeks the repayment of EUR 24 588.37 in costs, which comprises, first, a sum of EUR 23 500 in legal fees and, second, a sum of EUR 1 088.37 in travel and subsistence expenses incurred by an agent of ECHA as a result of the hearing.
Costs requested in respect of legal fees
16 In accordance with the case-law set out in paragraph 12 above, it is necessary to examine whether, in the light of the purpose and nature of the proceedings, their significance from the point of view of EU law, the complexity of and difficulties presented by the case, the financial interests which the parties had in the proceedings and the amount of work carried out, the assessment of the costs that ECHA seeks to recover is justified.
17 In the first place, with regard to the purpose and nature of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case, the General Court notes that the case in the main proceedings related to the procedure for the award of a contract for IT services and that the applicants sought, first, the annulment of the decisions by which ECHA had rejected the tender submitted by the European Dynamics consortium and awarded the contract to another consortium and, second, compensation for the damage which they claimed to have suffered.
18 In support of their claim for annulment, the applicants had relied on four pleas in law alleging, first, a failure to provide adequate reasons for the decision rejecting the tender submitted by the European Dynamics consortium, second, that ECHA had committed manifest errors in its assessment of the technical merit of the tender submitted by that consortium and the winning tender, third, failures affecting the formula of the financial evaluation of the tenders contained in the tender specifications and, fourth, the introduction of new award criteria during the tendering procedure. The applicants had also claimed compensation for the damage caused by the loss of the opportunity to be awarded the contract at issue.
19 Therefore the dispute in the main proceedings called for a thorough analysis and involved aspects which were technical to a certain extent, notably in factual terms, since the subject matter of the contract at issue concerned the provision of IT services for the IT applications of ECHA. However, contrary to ECHA’s assertions, this was not a case that should be considered to be unusual or particularly complex in the light of the pleas in law set out in paragraph 18 above. It should also be noted that it did not raise any novel point of law.
20 In the second place, with regard to the financial interests which the parties had in the proceedings, it should be borne in mind that, taking into account the maximum duration of the contract at issue, its estimated value was EUR 5 million and the annulment of the decision awarding the contract would most likely have disrupted the proper functioning of the agency and the performance of its tasks, as ECHA stated before the General Court. Accordingly, the dispute in the main proceedings was likely to be of some financial interest for ECHA.
21 In the third place, with regard to the amount of work carried out by ECHA’s external lawyers, it is for the General Court to assess whether the number of hours of work appears to be objectively necessary for the purposes of the case in the main proceedings and whether the hourly rate applied corresponds to a normal hourly rate in such proceedings.
22 In that regard, the primary consideration is 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 16 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint undertaking Fusion for Energy, T‑553/13 DEP, not published, EU:T:2018:199, paragraph 36 and the case-law cited).
23 Dividing the work of preparing the pleadings among different lawyers can involve some duplication of effort, with the result that the Court cannot, in that instance, allow the total number of hours of work claimed (see order of 15 February 2019, European Dynamics Luxembourg and Others v European Union Agency for Railways, T‑392/15 DEP, not published, EU:T:2019:100, paragraph 45 and the case-law cited).
24 In the present case, ECHA’s external lawyers provided invoices for their services detailing the tasks and the number of hours spent on each pleading.
25 In this instance, ECHA submitted the following three invoices:
– invoice of 24 November 2015 for EUR 14 949, reduced to EUR 10 000, covering the examination of the file and the drafting of the defence (‘Invoice No 1’);
– invoice of 25 February 2016 for EUR 8 452.23, reduced to EUR 7 500, covering the review of the reply and the drafting of the rejoinder (‘Invoice No 2’);
– invoice of 6 June 2017 for EUR 6 800, reduced to EUR 6 000, covering the hearing and the preparation for the hearing (‘Invoice No 3’).
26 It should be noted that ECHA’s lawyers, first, drafted a 39-page defence, which was accompanied by 154 pages of annexes, and a 21-page rejoinder, which had no annexes, and, second, prepared for the hearing at which they represented ECHA.
27 With regard, first, to the examination of the file and the drafting of the defence and the rejoinder, the tasks are clearly identified in Invoices Nos 1 and 2 and relate to the proceedings at issue. Invoice No 1 relates to 57 hours and 45 minutes for EUR 14 949, reduced to EUR 10 000. In the absence of any further details as to why the invoice was reduced, it must be concluded that that reduction relates to the number of hours billed, which must be regarded as having been reduced to around 38.5 hours, 5 of which were billed by a partner and 33.5 of which were billed by another lawyer. Invoice No 2 relates to 29 hours and 29 minutes of work for EUR 8 452.23, reduced to EUR 7 500. The number of hours billed must therefore be regarded as having been reduced to around 26 hours, 8 of which were billed by a partner and 9.5 and 8.5 of which were billed by two other lawyers respectively.
28 Thus, for the written stage of the proceedings, the partner billed a total of 13 hours of work at an hourly rate of EUR 425 and the other three lawyers billed a total of 51.5 hours of work at an hourly rate that varied between EUR 180 and EUR 275.
29 In that regard, it should be borne in mind that remuneration at a high hourly rate is appropriate only for the services of professionals capable of working efficiently and rapidly, and must, consequently, have as quid pro quo a necessarily strict assessment of the total number of hours of work essential for the purpose of the proceedings concerned (see order of 13 February 2017, La Zaragozana v EUIPO, T‑197/14 DEP, not published, EU:T:2017:113, paragraph 29 and the case-law cited).
30 In addition, with regard to the involvement of two lawyers for the purpose of drafting the defence, it can be concluded, in the light of Invoice No 1, that the second lawyer was essentially responsible for putting together a draft defence under the supervision of the partner, whose role was principally to review that draft. While it is true that a strict duplication of the tasks billed can be ruled out, not all of the hours billed can be regarded as necessary. Furthermore, with regard to the rejoinder, the involvement, in addition to the partner, of two different lawyers from the one involved at the defence stage introduced a certain amount of duplication, which appears to be confirmed by the fees relating to internal discussions and the review of the file identified in Invoice No 2. As is argued by the applicants, such fees cannot be included in the recoverable costs.
31 In the second place, with regard to the hearing and preparation for the hearing, the tasks are identified in Invoice No 3, which includes fees covering the review of the file, the drafting of ECHA’s pleading note and conclusion of the oral hearing, preparation for the hearing and participation in the hearing. That invoice relates to 16 hours of the partner’s work for EUR 6 800, reduced to EUR 6 000, which can be regarded as corresponding to 14 billed hours.
32 In that regard, it should, nevertheless, be borne in mind, first, that ECHA was represented at the hearing by the partner that had dealt with the case throughout the proceedings before the General Court and, second, that the hearing lasted 2.25 hours, as is noted in the minutes.
33 In those circumstances, in the light of (i) the relative complexity of the case in the main proceedings and the technical rather than legal nature of some of the questions raised, (ii) some duplication of effort, particularly at the rejoinder stage, and (iii) the partner’s hourly rate, 60 hours constitutes a fair assessment of the number of hours of work that were objectively necessary for the purposes of the case in the main proceedings, with 16 of those hours being billed by the partner at an hourly rate of EUR 425 and 44 being billed by other lawyers at an average hourly rate of EUR 235.
34 In the light of all of the foregoing, it is appropriate to set ECHA’s recoverable costs in respect of legal fees at EUR 17 140.
Costs requested in respect of expenses
35 ECHA indicates that the agency’s Legal Advisor and Procurement Officer participated in the hearing. It requests that the expenses incurred by one of them, namely the Procurement Officer, be considered to be a recoverable cost.
36 It should be borne in mind that travel and subsistence expenses incurred by persons other than lawyers are recoverable only if the presence of those persons was necessary for the purpose of the proceedings (see order of 27 October 2017, Heli-Flight v EASA, T‑102/13 DEP, not published, EU:T:2017:769, paragraph 49 and the case-law cited).
37 In the present case, the applicants do not contest that it was necessary for a member of ECHA’s staff to be present at the hearing. In addition, it should be borne in mind that the submissions in the action required a thorough knowledge of the technical data of the call for tenders and the contents of the competing tenders and — as is asserted, in essence, by ECHA — a thorough knowledge of that technical data was useful for the purposes of the hearing. In those circumstances, the presence of ECHA’s Procurement Officer at the hearing can be considered to be objectively necessary for the purpose of the proceedings before the General Court.
38 The amount of the expenses, namely EUR 1 088.37, is justified by the submission of a breakdown of mission expenses, which includes transport expenses between Helsinki and Luxembourg, a night in a hotel and a daily allowance corresponding to 2 days on mission. The amount of those expenses, which, incidentally, is not contested by the applicants, must be accepted.
39 It follows from all of the foregoing that EUR 18 228.37 constitutes a fair assessment of ECHA’s recoverable costs.
Costs of the present proceedings
40 It should be noted, first, that ECHA’s request for the costs incurred by it in the present proceedings to be included in the recoverable costs is contingent on a hearing being held. However, a hearing is not provided for by Article 170 of the Rules of Procedure. In the absence of such a hearing, it must be found that ECHA is not requesting that costs relating to the present proceedings be taken into account in the taxation of costs relating to the dispute in the main proceedings.
41 Second, as the costs incurred by ECHA in the present proceedings are not to be repaid by the applicants, it is not necessary to adjudicate on the latter’s request, in the alternative, for ECHA to be ordered to pay the costs of the proceedings.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
The total amount of the costs to be repaid by European Dynamics Luxembourg SA, European Dynamics Belgium SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to the European Chemicals Agency (ECHA) is set at EUR 18 228.37.
Luxembourg, 6 June 2019.