ORDER OF THE GENERAL COURT (Third Chamber)
28 May 2013 (*)
(Procedure – Taxation of costs)
In Case T‑43/10 DEP,
Elementis plc, established in London (United Kingdom),
Elementis Holdings Ltd, established in London,
Elementis UK Ltd, established in London,
Elementis Services Ltd, established in London,
represented by T. Wessely and A. de Brousse, lawyers, A. Woods, Solicitor, and E. Spinelli, lawyer,
applicants,
v
European Commission, represented by A. Biolan and F. Ronkes Agerbeek, acting as Agents,
defendant,
APPLICATION for taxation of costs following the order of the General Court (Third Chamber) of 8 November 2011 in Case T-43/10 Elementis and Others v Commission, not published in the ECR,
THE GENERAL COURT (Third Chamber),
composed of O. Czúcz, President, I. Labucka (Rapporteur) and D. Gratsias, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By document lodged at the Registry of the General Court on 29 January 2010, the applicants, Elementis plc, Elementis Holdings Ltd, Elementis UK Ltd and Elementis Services Ltd, brought an action for annulment of Commission Decision C(2009) 8682 final of 11 November 2009, relating to a proceeding under Article 81 EC and Article 53 of the EEA Agreement (Case COMP/38589 – Heat stabilisers) (‘the decision under appeal in the main proceedings’), in so far as it concerns them, or, in the alternative, a reduction of the fines imposed.
2 That action was registered under reference T-43/10.
3 By letter of 8 mars 2010, the Commission requested the General Court to stay the proceedings in Case T-43/10 pending judgment of the Court in Joint Cases C‑201/09 P ArcelorMittal Luxembourg v Commission, and C-216/09 P Commission v ArcelorMittal Luxembourg and Others.
4 By letter of 12 April 2010, the applicants did not signal any objection to the proceedings’ being stayed.
5 By order of 5 May 2010, the President of the Fourth Chamber of the General Court stayed the proceedings in the main action, pursuant to Article 77(d) of the Rules of Procedure of the General Court, until delivery of the Court of Justice’s final judgment in Joined Cases C-201/09 P ArcelorMittal Luxembourg v Commission, and C-216/09 P Commission v ArcelorMittal Luxembourg and Others.
6 Following a change in the composition of the Chambers of the General Court, the Judge-Rapporteur was assigned to the Third Chamber, to which the present case was accordingly allocated.
7 On 29 March 2011, the Court of Justice delivered its judgment in Joined Cases C‑201/09 P ArcelorMittal Luxembourg v Commission and C‑216/09 P Commission v ArcelorMittal Luxembourg and Others [2011] ECR I-2239 (‘ArcelorMittal’) and the proceedings in the main action were thus recommenced.
8 In ArcelorMittal, the Court of Justice ruled on the interpretation of Article 25(6) of Council Regulation (EC) No 1/2003 of 16 December 2002 on the implementation of the rules on competition laid down in Articles 81 [EC] and 82 [EC] (OJ 2003 L 1, p. 1), holding that neither the actions brought against final Decisions imposing fines under Article 23 of Regulation No 1/2003, nor the actions brought against the acts referred to in Article 25(3) of Regulation No 1/2003 have any suspensive effect erga omnes (ArcelorMittal, paragraphs 141 to 147).
9 By communication of 8 April 2011, the General Court called on the Commission, by way of measures of organisation of procedure, to submit its observations on the consequences of ArcelorMittal for the case in the main proceedings.
10 By Commission Decision C(2011) 4612 final of 30 June 2011, the decision challenged in the main proceedings was withdrawn in so far as it addressed the applicants.
11 By document lodged at the Registry of the General Court on 1 July 2011, the Commission requested an order that there was no need to adjudicate on the case claiming that, in the light of the withdrawal of the contested decision in so far as it concerned the applicants, the action in the main proceedings had become devoid of purpose. Furthermore, it stated that it had made that withdrawal in order to take account of the interpretation of Article 25(6) of Regulation No 1/2003 in ArcelorMittal.
12 By document lodged at the Registry of the General Court on 24 August 2011, the applicants submitted their observations on the Commission’s request for an order that there is no need to adjudicate on the action, with which they were associated. Furthermore, they requested the General Court to order the Commission to pay the costs.
13 By order of 8 November 2011 in Case T-43/10 Elementis and Others v Commission, not published in the ECR, the General Court ruled that there was no need to adjudicate in the case in the main proceedings and ordered the Commission to pay the costs.
14 By letter of 15 March 2012, the applicants asked the Commission, on the basis of the order in Elementis and Others v Commission, for reimbursement of costs up to USD 255 621.15, or, according to the applicants in their request, some EUR 183 635. On 4 May 2012, the Commission agreed to reimbursement of up to only EUR 30 500.
15 By document lodged at the Registry of the General Court on 10 October 2012, the applicants submitted the present application for taxation of costs pursuant to Article 92(1) of the Rules of Procedure of the General Court. By their application, the applicants request the General Court, pursuant to that provision, to fix the amount of the recoverable costs at USD 255 621.15, or, according to the applicants in their application, some EUR 183 635.
16 By document lodged at the Registry of the General Court on 27 November 2012, the Commission submitted its observations on that application. The Commission requests the General Court to fix the amount of the recoverable costs at EUR 27 500.
Law
17 The applicants claim, first of all, that the costs incurred by them, amounting to a total of USD 255 621.15, or, according to the applicants in their application, some EUR 183 635, were necessary for the purposes of the proceedings, within the meaning of Article 91(b) of the Rules of Procedure of the General Court, and that they constitute, therefore, recoverable costs chargeable to the Commission.
18 The Commission rejects, in essence, all the applicants’ arguments and contends that an equitable assessment of the amount of the recoverable costs should be made by fixing it at EUR 27 500.
19 Under Article 92(1) of the Rules of Procedure of the General Court, ‘if 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’.
20 According to Article 91(b) of the Rules of Procedure of the General Court, ‘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, firstly, to those incurred for the purpose of the proceedings before the General Court and, secondly, to those which are necessary for that purpose (see order in Case T-324/99 DEP Airtours v Commission [2004] ECR II-1785, paragraph 13, and order of 2 March 2012 in Case T-270/09 DEP VS v OHIM – MeDiTA Medizinische Kurierdienst (medidata), not published in the ECR, paragraph 7).
21 It is settled case-law that the European Union (EU) 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, to that effect, Airtours v Commission, paragraph 17, and order of 19 March 2009 in Joined Cases T-333/04 DEP and T-334/04 DEP House of Donuts v OHIM – Panrico (House of donuts), not published in the ECR, paragraph 8).
22 It is also settled case-law that, since there are no EU provisions laying down fee-scales, the General Court must make an unfettered assessment of the facts of the case, taking into account the subject-matter 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 dispute for the agents and advisers involved and the financial interests which the parties had in the proceedings (see Airtours v Commission, paragraph 18, and order of 25 October 2010 in Case T‑33/08 DEP Bastos Viegas v OHIM – Fabre médicament (OPDREX), not published in the ECR, paragraph 9).
23 It is in the light of those factors that the amount of the costs recoverable in the present case must be determined.
The significance of the proceedings from the point of view of EU law
24 The applicants claim that the costs incurred were necessary, since the case in the main proceedings was of fundamental importance from the point of view of EU law.
25 First, the applicants claim that the question of suspension of the limitation period in the context of Article 25(6) of Regulation No 1/2003 was a fundamental question of interpretation of an essential provision of competition law, which is apparent from the fact that was decided upon by the Court of Justice sitting as the Grand Chamber.
26 While agreeing with the applicants that the question of suspension of the limitation period raised, in EU law, new and important points of law, the Commission contends that that cannot justify the excessive amount of costs claimed by the applicants, having regard in particular to the circumstances of the case in the main proceedings.
27 It is true that the present dispute may have raised new and important questions from the point of view of EU law concerning the erga omnes or inter partes effect of a suspension of the limitation period, as the Commission, moreover, accepts in its pleadings.
28 That said, it must not be forgotten that this question, which is, moreover, precisely delimited, had already been discussed during the administrative procedure in the present case and clarified by the General Court in Case T-405/06 ArcelorMittal v Commission [2009] ECR II-771, which has been upheld on appeal by the Court of Justice in ArcelorMittal.
29 Consequently, notwithstanding the new and important nature of this question, its impact on the recoverable costs in the present case is not to be exaggerated.
30 In the second place, the applicants claim that, in the context of their application in the case in the main proceedings, they raised another essential question of general relevance, in the present case the question whether the Commission is required to specify, in a decision imposing a fine jointly and severally on a number of companies, the amount of each joint debtor’s share.
31 In that regard, it must be pointed out that this question is indeed of definite importance, in the light of the numerous cases still pending before the General Court and the appeal brought by the Commission in Case C-231/11 P Commission v Siemens Österreich and Others [2011] (OJ 2011 C 204, p. 17).
32 Nevertheless, the significance of the proceedings in terms of EU law cannot in itself justify all the sums incurred by the applicants.
The level of difficulty of the case
33 The applicants claim, in essence, that the level of difficulty of the case was high, in the light of the questions raised, namely, on the one hand, those questions, already mentioned, of the suspension of the limitation period and of the effects of a decision imposing a fine jointly and severally, and, on the other, those questions of a breach of the rights of the defence and imputation of unlawful conduct, which would have required an in-depth examination.
34 The Commission contends that the level of difficulty of the case in the main proceedings was not as high as the applicants claim, having regard to the questions asked.
35 In that regard, it must be considered that, even though it has many aspects, the actions relating to infringements of Article 101 TFEU, as in the present case, are relatively well known and very common in EU competition law, as are the questions, discussed in the present case, of breach of the rights of the defence and imputation of unlawful conduct.
36 As regards the questions of the effects of the limitation period and of a decision imposing a fine jointly and severally, it must be noted that, while these were or still are, admittedly, new and important, their wording cannot be truly a matter of significant complexity.
37 Therefore, the case in the main proceedings cannot be regarded as having involved particularly serious difficulties.
The economic interest of the proceedings for the applicants
38 The applicants submit that the proceedings were of economic interest to them, since the total amount of the fines which were imposed on them, jointly and severally, was some EUR 32.5 million.
39 While recognising that the applicants had a financial interest in the case in the main proceedings, in the light of the fines imposed, the Commission pointed out that the total amount of those fines was less than the maximum amount it could impose pursuant to Regulation No 1/2003.
40 That argument of the Commission cannot be accepted for the purposes of the taxation of costs requested in the present case.
41 The fixing of the recoverable costs cannot, in cases such as the present, depend on the Commission’s ability to impose a higher fine within the boundaries of the applicable legal framework.
42 To adopt the contrary approach would enable the Commission to contest systematically the economic interest of the proceedings for applicants in the context of an application for taxation of costs as long as it had not imposed the maximum amount authorised under the applicable legal framework.
43 The economic interest of the proceedings for the applicants must be assessed, not with regard to the exercise, by the Commission, of its discretion as conferred by the applicable legal framework, but by the yardstick of their global economic resources.
44 In the present case, it must be considered that the imposition of fines which amount in total to EUR 32.5 million is of significant economic interest to the applicants, in the light of their turnover, that is some EUR 400 million, an amount that the Commission did not dispute in its pleadings in the present case.
The volume of work
45 The applicants claim that the volume of work undertaken was objectively necessary.
46 They account for this by, first of all, the detailed examination of the lengthy documents of the case in the main proceedings, namely the decision contested in the main proceedings and the Commission’s file, which had to be examined again, in particular as regards the calculation of the fines.
47 Next, they dispute the Commission’s argument that the arguments put forward in their reply to the statement of objections and the pleas in law relied on in their application are not fundamentally different. The applicants claim that the application is more complete, in that there is a differently reasoned presentation of the question of the effects of the limitation period and that the pleas contained therein allege a breach of the rights of defence following the reply to the statement of objections, an erroneous calculation of the fine in terms of the imputation of infringements and the failure of the Commission to indicate the amount of each joint debtor’s share.
48 Furthermore, the applicants claim that they also had to analyse, from the point of view of their application’s being upheld in the case in the main proceedings and irrespective of the pleas in law raised in the application, various other questions, namely, the possibility of an action for damages against the Commission, the appropriateness of applying to the General Court for an expedited procedure and the effect of a recent judgment of the General Court.
49 Finally, the applicants point out, in order to substantiate the content of the tasks carried out over some 30 hours after the application was filed, that they found it necessary to set out their position on the Commission’s requests for a stay of the proceedings and for a declaration that there is no need to adjudicate on the action.
50 The Commission contends, in essence, that the application for taxation of costs is not justified.
51 As regards the extent of the work generated by the proceedings for the applicants’ lawyers, it must be noted that it is for the Courts of the European Union to take into account the work objectively required for the whole of the judicial proceedings. Furthermore, it must be emphasised that whether it is possible for the EU Courts to assess the value of the work carried out depends on the degree of precision of the information supplied (see, to that effect, OPDREX, paragraph 17).
52 However, in the present case, it cannot reasonably be accepted that the volume of the work objectively required that the legal proceedings could generate for the applicants’ lawyers corresponds to the latter’s claims regarding the recoverable costs.
53 According to the lawyers’ fee notes submitted by the applicants in an annex to their application for taxation of costs, the tasks performed represented at least 488 hours of work.
54 It is also apparent from those fee notes that the tasks performed in the drafting and lodging of the application represented, according to an initial invoice submitted in an annex to the application for taxation of costs, a total of 458 hours of work and office and administrative costs amounting to some EUR 4 200.
55 According to other invoices submitted by the applicants in an annex to their application for taxation of costs, the other tasks performed following the lodging of the application represented a total of 30 hours of work for some EUR 18 000.
56 In that regard, it must first be noted that the applicants’ pleadings were limited, first and foremost, to the drafting and the lodging of an application, as the applicants themselves acknowledge and as correctly pointed out by the Commission, and, secondly and after the lodging of the application, on 29 January 2010, to two letters to the General Court.
57 Regardless of its length, that application essentially repeats the arguments made by the applicants in their reply to the statement of objections in the proceedings before the Commission.
58 Accordingly, the legal points dealt with in the application in the case in the main proceedings, it being understood that the applicants did not challenge the legal classification of the facts of the case, and referring to the issues of the limitation period and the imputation of unlawful conduct, had already been dealt with in their reply to the statement of objections in the administrative proceedings.
59 However, as was pointed out in paragraph 20 of the present order, the recoverable costs are limited to those incurred for the purpose of the proceedings before the General Court and cannot cover the costs incurred for the purpose of the proceedings before the Commission.
60 Consequently, at the stage of drafting the application, the only issues addressed that could justify renewed and further consideration related to the rights of defence and the amount of the fines.
61 In the second place, as regards the analysis, from the point of view of their application’s being upheld in the case in the main proceedings and irrespective of the pleas in law raised in the application, the possibility of an action for damages against the Commission, the appropriateness of applying to the General Court for an expedited procedure and the effect of a recent judgment of the General Court, it must be stated that the applicants’ claims in that regard are in no way borne out.
62 Third, as regards the pleadings subsequent to the lodging of the application, it must be pointed out that the tasks described in the lawyers’ fee notes submitted by the applicants in an annex to their application for taxation of costs essentially consisted of telephone communications and internal meetings between 17 May 2010 and 12 September 2011.
63 The applicants cannot validly substantiate their claims in that respect by asserting, by way of establishing the tasks carried out over a period of 30 hours following the lodging of the application, that they found it necessary to set out their position on the Commission’s requests for a stay of proceedings and for a declaration that there is no need to adjudicate on the action, in the light of the fact that those two letters have the most straight forward of contents and are extremely short.
64 Therefore, the total number of hours claimed by the applicants cannot reasonably be regarded as necessary, within the meaning of Article 91(b) of the Rules of Procedure of the General Court, in view of the common nature and subject-matter of the dispute in the present case, the relative degree of novelty and importance, in EU law, of the questions raised, the low level of complexity of the case in the main proceedings and the paucity of written material provided by the applicants in that case.
65 In the fourth place, and irrespective of the volume and hourly rate of the tasks claimed by the applicants in respect of the proceedings before the General Court, the fact remains that, for almost all the tasks, none of the evidence provided by the applicants makes it possible to determine whether those tasks and that rate were objectively necessary.
66 As was pointed out in paragraph 51 of the present order, whether it is possible for the EU Courts to assess the value of the work carried out depends on the degree of precision of the information supplied.
67 In the present case, the list of items invoiced, submitted by the applicants in an annex to their application for taxation of costs, refers to tasks the greater part of which are described in a vague or generic manner.
68 Such is the case of, in particular, the numerous internal and external telephone communications, the subject-matter of which is almost never specified, the analyses of ‘the Commission’s decision’, without details as to the subject-matter of those analyses, except, sporadically, as regards the limitation period or the amount of the fine, the numerous pieces of research and drafts with no indication as to their content, and tasks connected with the ‘draft application’, this last item accounting for no less than several hundred hours.
69 Moreover, it must be pointed out that the invoices provided by the applicants include several confidential passages, with the result that, it is impossible to ascertain whether the tasks in question were objectively necessary for the purposes of the proceedings.
70 Consequently, it appears relatively difficult, in the present case, to identify, with sufficient certainty and precision, the tasks which were objectively necessary.
71 As regards the tasks the exact content of which is more satisfactorily apparent from the list of items invoiced produced by the applicants in an annex to their application for taxation of costs, it appears that a not inconsiderable amount of fees correspond to superfluous, objectively unnecessary or plainly excessive tasks or expenses.
72 The same can be said for the items invoiced which correspond to photocopying costs in the amount of USD 4 1993.61, with insufficient detail as to the nature and volume of documents photocopied. Such costs cannot reasonably be regarded as necessary, within the meaning of Article 91(b) of the Rules of Procedure of the General Court.
The avoidable nature of the proceedings
73 In support of their application, the applicants point out that the costs invoked could have been avoided if the Commission had not rejected, in the administrative proceedings, their request for the proceedings to be stayed pending judgment of the Court of Justice in the appeal against the judgment of General Court in Case T-405/06 ArcelorMittal v Commission [2009] ECR II-771.
74 Provided that they had been unnecessarily generated by the Commission, the costs claimed would be recoverable by the applicants.
75 The Commission rejects the applicants’ argument that the proceedings could have been avoided, since it cannot be criticised for having made a finding of an infringement on the part of the applicants.
76 The argument made by the applicants in respect of the allegedly avoidable nature of the proceedings must be considered to be ineffective.
77 Even assuming that the proceedings could have been avoided by the Commission, that fact cannot in any way justify excessive fees.
78 For all those reasons, it is necessary, for the purposes of fixing the amount of the recoverable costs, to consider, firstly, that the tasks objectively necessary to deal with the case in the main proceedings could constitute no more than 135 hours of work.
79 Secondly, it is necessary to take into account, for the purposes of fixing that amount without invoking an arithmetical calculation by the General Court in the exercise of its powers to assess, the average hourly rate charged by the applicants’ lawyers, as is apparent, indirectly, from the lawyers’ fee notes submitted in support of the application for taxation of costs in the present case, that is to say the division of the total amount invoiced of USD 255 621.15, or, according to the applicants, some EUR 183 635 by the total number of hours alleged, that is 488 hours, which gives a net average hourly rate of some EUR 376 and to increase the amount obtained, that is EUR 50 750, by a sum of EUR 750 to cover the administrative costs.
80 In view of all the foregoing, the Court will make an equitable assessment of the costs recoverable by the applicants in the present case by fixing the amount at EUR 51 500.
81 Lastly, it is necessary to note that the applicants fixed the amount of their costs in United States dollars converted to euro and to point out that it is clear from Article 93(2) of the Rules of Procedure of the General Court that where expenses to be refunded have been incurred in a currency other than the euro, conversions of currency shall be made at the official rates of exchange of the European Central Bank on the day of payment.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
The total amount of the costs to be paid by the Commission to Elementis plc, Elementis Holdings Ltd, Elementis UK Ltd and Elementis Services Ltd is fixed at EUR 51 500.
Luxembourg, 28 May 2013.