Provisional text
ORDER OF THE GENERAL COURT (Fourth Chamber)
21 September 2017 (*)
(Procedure — Taxation of costs)
In Case T‑290/13 DEP,
CMBG Ltd, established in Tortola (British Virgin Islands), represented by A. Paschalides, lawyer, and C. Paschalides, Solicitor,
applicant,
v
European Commission,
and
European Central Bank (ECB), represented by K. Laurinavičius and G. Varhelyi, acting as Agents, and H.-G. Kamann, lawyer,
defendants,
APPLICATION for taxation of costs by the ECB following the order of 10 November 2014, CMBG v Commission and ECB (T‑290/13, not published, EU:T:2014:976),
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen (Rapporteur), President, I. Pelikánová and E. Buttigieg, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By application lodged at the Court Registry on 24 May 2013, CMBG Ltd brought an action, first, for annulment of paragraphs 1.23 to 1.27 of the Memorandum of Understanding on Specific Economic Policy Conditionality concluded, on 26 April 2013, between the Republic of Cyprus and the European Stability Mechanism (ESM), and, secondly, for compensation for damage allegedly suffered by CMBG as a result of the inclusion of those paragraphs in the Memorandum of Understanding as well as of an infringement, by the European Commission, of its obligation to ensure that the Memorandum of Understanding was compatible with EU law.
2 By separate documents, lodged at the Court Registry on 24 September and 1 October 2013 respectively, the Commission and the European Central Bank (ECB) raised objections of inadmissibility under Article 114 of the Rules of Procedure of the General Court of 2 May 1991.
3 By order of 10 November 2014, CMBG v Commission and ECB (T‑290/13, not published, EU:T:2014:976) (‘the Court order’), the Court dismissed the action as in part inadmissible and in part manifestly lacking any foundation in law, and ordered CMBG to bear all the costs.
4 By letters of 19 April and 28 June 2016, the ECB requested CMBG to reimburse the expenses it necessarily incurred for the purposes of the proceedings, namely EUR 16 120.16.
5 By letter of 6 July 2016, CMBG refused to make any reimbursement on the ground that the case for which the ECB was seeking reimbursement of expenses raised the same points of law and of fact as other cases under appeal, and that those expenses were neither necessary nor acceptable. That letter was followed by other exchanges of letters and phone calls between the ECB and CMBG.
6 By document lodged at the Court Registry on 4 October 2016 and in accordance with Article 170(1) of the Rules of Procedure of the General Court, the ECB brought the present application for taxation of costs, by which it claims that the Court should:
– set at EUR 16 120.16 the amount of the costs to be recovered by the ECB in the case that gave rise to the Court order;
– set at EUR 404.60 the amount of the costs to be recovered by the ECB in the present taxation of costs proceedings;
– deliver an enforceable copy of the order to the ECB.
7 By letter lodged at the Court Registry on 25 November 2016, A. Paschalides and C. Paschalides informed the Court that they no longer represent CMBG.
8 By letter of 17 January 2017, the Court Registry informed A. Paschalides and C. Paschalides that the Court (Fourth Chamber) had decided to adopt, pursuant to Article 90 of the Rules of Procedure, the following measure of organisation of procedure:
‘[A. Paschalides and C. Paschalides] are informed that they remain the point of contact for the Court until [CMBG] appoints a new representative.
[A. Paschalides and C. Paschalides] are asked to inform [CMBG] that it is for [CMBG] to appoint such a representative within a period of three weeks, failing which the Court will rule on the application for taxation of costs without receiving [CMBG]’s observations.’
9 By letter lodged at the Court Registry on 25 January 2017, A. Paschalides and C. Paschalides informed the Court that they had notified CMBG, first, of their decision no longer to represent CMBG and, secondly, that CMBG had to appoint other lawyers for the purposes of the present proceedings.
10 By letter lodged at the Court Registry on 2 February 2017, A. Paschalides and C. Paschalides informed the Court that they had notified CMBG once again, first, of their decision no longer to represent CMBG and, secondly, of the need for CMBG to appoint other lawyers. A. Paschalides and C. Paschalides asked the Court to regard them as no longer representing CMBG, and they stated that they would not accept service of any other documents relating to the present case.
11 CMBG failed to submit any observations on the application for taxation of costs within the time limit prescribed.
Law
12 Pursuant to 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.
13 According to Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purposes of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers, are regarded as recoverable costs.
14 In the absence of any provisions of EU law relating to tariffs or to the necessary working time, the Court must freely assess the details of the case, taking account of the subject matter and nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved, and the economic interests which the dispute represented for the parties (orders of 20 May 2010, Tetra Laval v Commission, C‑12/03 P-DEP and C‑13/03 P-DEP, EU:C:2010:280, paragraph 44, and of 16 October 2014, Since Hardware (Guangzhou) v Council, T‑156/11 DEP, not published, EU:T:2014:930, paragraph 17).
15 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 the expenses necessarily incurred in relation to the taxation of costs proceedings (orders of 23 March 2012, Kerstens v Commission, T‑498/09 P DEP, not published, EU:T:2012:147, paragraph 15, and of 12 January 2016, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13 DEP, not published, EU:T:2016:9, paragraph 14).
The recoverability of the lawyers’ fees incurred by the ECB
16 As is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, applicable before the General Court pursuant to the first paragraph of Article 53 of that Statute, the institutions of the European Union are free to have recourse to the assistance of a lawyer. The latter’s remuneration is therefore covered by the concept of expenses necessarily incurred for the purposes of the proceedings (orders of 16 May 2013, Internationaler Hilfsfonds v Commission, C‑208/11 P-DEP, EU:C:2013:304, paragraph 14; of 10 October 2013, CPVO v Schräder, C‑38/09 P-DEP, EU:C:2013:679, paragraph 20; and of 16 October 2014, Since Hardware (Guangzhou) v Council, T‑156/11 DEP, not published, EU:T:2014:930, paragraph 19) without the institution being required to show that such assistance is objectively warranted (see, to that effect, orders of 31 January 2012, Commission v Kallianos, C‑323/06 P-DEP, EU:C:2012:49, paragraphs 10 and 11, and of 16 October 2014, Since Hardware (Guangzhou) v Council, T‑156/11 DEP, not published, EU:T:2014:930, paragraph 19).
17 In the present case, the ECB claims that the Court should set the total amount of costs to be recovered at EUR 16 524.76, stating that that amount corresponds to lawyers’ fees in connection with, on the one hand, the case that gave rise to the Court order, assessed at EUR 16 120.16, and, on the other hand, the present taxation of costs proceedings, assessed at EUR 404.60. Those sums include value added tax (VAT) at a rate of 19%.
18 It is apparent from the nature of the costs claimed that they are recoverable costs. Next, it is appropriate to examine whether they were necessary for the purpose of Article 140(b) of the Rules of Procedure.
The amount of lawyers’ fees which are recoverable
19 In order to determine, on the basis of the criteria listed in paragraph 14 above, whether the costs actually incurred for the purposes of the proceedings were in fact necessary, precise information must be supplied by the applicant (orders of 9 November 1995, Ahlström, C‑89/85 DEP, EU:C:1995:366, paragraph 20, and of 16 October 2014, Since Hardware (Guangzhou) v Council, T‑156/11 DEP, not published, EU:T:2014:930, paragraph 23). Whilst the absence of such information does not prevent the Court from fixing, on the basis of an equitable assessment, the amount of recoverable costs, it nonetheless places it in a situation where its assessment of the applicant’s claims must necessarily be strict (see orders of 27 November 2012, Gualtieri v Commission, T‑413/06 P-DEP, not published, EU:T:2012:624, paragraph 54, and of 16 October 2014, Since Hardware (Guangzhou) v Council, T‑156/11 DEP, not published, EU:T:2014:930, paragraph 23).
20 With regard, in the first place, to the subject matter and nature of the dispute in the case that gave rise to the Court order, its importance from the point of view of EU law and the difficulties presented by the case, it must be recalled that the action sought, on the one hand, to obtain compensation for damage allegedly caused to CMBG by including several paragraphs in the Memorandum of Understanding of 26 April 2013, and, on the other hand, to have those paragraphs annulled. In an application not organised in clear pleas, CMBG argued that the inclusion of those paragraphs in the Memorandum of Understanding of 26 April 2013, first, could be attributed to the ECB and the Commission, secondly, forced the Republic of Cyprus to adopt certain measures that resulted in a substantial reduction in the value of the deposits held by CMBG in a Cypriot bank and, thirdly, entailed a flagrant infringement of its right to property over those deposits, as guaranteed by Article 17 of the Charter of Fundamental Rights of the European Union.
21 In that context, the Court examined several difficult and unprecedented issues as to, inter alia, (i) whether the adoption, by a Member State, of certain measures mentioned in a Memorandum of Understanding adopted in accordance with the rules laid down in the Treaty Establishing the European Stability Mechanism, concluded on 2 February 2012 in Brussels (Belgium) between the Kingdom of Belgium, the Federal Republic of Germany, the Republic of Estonia, the Hellenic Republic, the Kingdom of Spain, the French Republic, Ireland, the Italian Republic, the Republic of Cyprus, the Grand Duchy of Luxembourg, the Republic of Malta, the Kingdom of the Netherlands, the Republic of Austria, the Portuguese Republic, the Republic of Slovenia, the Slovak Republic and the Republic of Finland could be attributed to the Commission and the ECB, and (ii) whether non-contractual liability could be incurred by the European Union for the purpose of Article 340 TFEU due to failure, by the Commission, to ensure that a Memorandum of Understanding of that nature was compatible with EU law.
22 Therefore, it cannot be disputed that the action raised complex issues and that the case was of particular importance from the point of view of EU law.
23 With regard, in the second place, to the economic interest that the dispute represented for the parties, it must be noted that, even if CMBG failed to submit observations on the application for taxation of costs, it can be assumed that the reduction in value of its deposits was likely to affect its economic situation. The ECB, for its part, merely stated that the case was of fundamental economic and political importance. However, it must be noted that if the Court had granted CMBG the compensation that CMBG claimed it was entitled to, other holders of deposits in Cypriot banks which suffered a reduction in value at the material time could, in theory, have sought similar compensation. This could potentially have resulted in the European Union and the ECB being ordered to pay very large sums by way of compensation. It is therefore appropriate to conclude that the dispute represented a major economic interest for the Commission and the ECB.
24 With regard, in the third place, to the amount of work which the contentious proceedings generated for its lawyers, it is appropriate to observe that the ECB does not specify which tasks were specifically dedicated by those lawyers to the case that gave rise to the Court order.
25 In fact, first of all, the ECB states that those lawyers had to work simultaneously on this case and on a group of cases which raised points identical or similar to those in this case and for which applications were lodged at the Court Registry on very close dates. The ECB points out that those cases are the ones that gave rise to the orders of 10 November 2014, Ledra Advertising v Commission and ECB (T‑289/13, EU:T:2014:981); Eleftheriou and Papachristofi v Commission and ECB (T‑291/13, EU:T:2014:978); Evangelou v Commission and ECB (T‑292/13, not published, EU:T:2014:977); Theophilou v Commission and ECB (T‑293/13, not published, EU:T:2014:979); and Fialtor v Commission and ECB (T‑294/13, not published, EU:T:2014:980), which were English-language cases, and the ones that gave rise to the orders of 16 October 2014, Mallis and Malli v Commission and ECB (T‑327/13, EU:T:2014:909); Tameio Pronoias Prosopikou Trapezis Kyprou v Commission and ECB (T‑328/13, not published, EU:T:2014:906); Chatzithoma v Commission and ECB (T‑329/13, not published, EU:T:2014:908); Chatziioannou v Commission and ECB (T‑330/13, not published, EU:T:2014:904); Nikolaou v Commission and ECB (T‑331/13, not published, EU:T:2014:905); and Christodoulou and Stavrinou v Commission and ECB (T‑332/13, not published, EU:T:2014:910), which were Greek-language cases.
26 The ECB then goes on to explain that its lawyers submitted a single invoice, amounting to EUR 159 902.50 plus VAT, making a total of EUR 190 289.93, for work done in respect of all of the cases referred to in the previous paragraph. Due to an overlap in content between those cases, some of the work invoiced concerned all English-language cases without distinction, some concerned all Greek-language cases and some concerned both groups of cases. On that basis, the ECB claims that its total lawyers’ fees can be apportioned as follows:
– EUR 22 411.25 plus VAT, making a total of EUR 26 669.39, attributable to all six English-language cases;
– EUR 19 757.50 plus VAT, making a total of EUR 23 517.38, attributable to all six Greek-language cases;
– EUR 117 733.75 plus VAT, making a total of EUR 140 103.16, attributable to all 12 cases.
27 Lastly, the ECB states that CMBG’s share of the costs amounts to EUR 16 120.16. It notes that that amount relates to the case that gave rise to the Court order, that is to say, on the one hand, 1/12 of the costs attributable to all the cases referred to in paragraph 25 above, amounting to EUR 11 675.26, and, on the other hand, 1/6 of the costs specifically attributable to the English-language cases, amounting to EUR 4 444.90.
28 In that regard, it must be pointed out, first, that the cases that gave rise to the orders of 10 November 2014, Ledra Advertising v Commission and ECB (T‑289/13, EU:T:2014:981); Eleftheriou and Papachristofi v Commission and ECB (T‑291/13, not published, EU:T:2014:978); Evangelou v Commission and ECB (T‑292/13, not published, EU:T:2014:977); Theophilou v Commission and ECB (T‑293/13, not published, EU:T:2014:979); and Fialtor v Commission and ECB (T‑294/13, not published, EU:T:2014:980) indeed raised the same legal issues as the case that gave rise to the Court order. The applications in those cases were almost identical and were lodged on the same day at the Court Registry, namely on 24 May 2013, with the result that the contentious proceedings took place at the same time.
29 For their part, the applications in the cases that gave rise to the orders of 16 October 2014, Mallis and Malli v Commission and ECB (T‑327/13, EU:T:2014:909); Tameio Pronoias Prosopikou Trapezis Kyprou v Commission and ECB (T‑328/13, not published, EU:T:2014:906); Chatzithoma v Commission and ECB (T‑329/13, not published, EU:T:2014:908); Chatziioannou v Commission and ECB (T‑330/13, not published, EU:T:2014:904); Nikolaou v Commission and ECB (T‑331/13, not published, EU:T:2014:905); and Christodoulou and Stavrinou v Commission and ECB (T‑332/13, not published, EU:T:2014:910) raised legal issues similar, in part, to those raised by the cases referred to in paragraph 28 above, and they were also materially identical to each other. They were lodged at the Court Registry on the same day, namely on 4 June 2013, which is very close to the date on which the applications in the cases referred to in paragraph 28 above were lodged. The contentious proceedings thus took place at the same time, in practice, as those in connection with the cases referred to in paragraph 28 above.
30 Moreover, it must be noted that, in a situation such as that in the present case, characterised by the presence of a group of cases raising identical or similar legal issues and in respect of which the contentious proceedings, in practice, take place at the same time, expenses related to the work which each of those proceedings generated for the lawyers of an EU institution can be determined, as suggested by the ECB, on the basis of an apportionment of the total costs between the different cases, provided that such apportionment satisfies objective and reasonable criteria. In fact, this method for fixing costs, on the one hand, makes it possible to take account of the fact that a significant part of the work done concerns all the cases at issue without distinction and, on the other hand, limits the amount that has to be borne, in the end, by the parties who are ordered to pay the costs in each case.
31 Accordingly, the following must be determined: (i) the amount of work which the contentious proceedings generated for the ECB’s lawyers, on the one hand, for all the cases referred to in paragraph 25 above and, on the other hand, for the English-language cases; (ii) the apportionment of the resulting sums between the various cases set out in paragraph 25 above; and (iii) the amount of work which the present taxation of costs proceedings generated for the ECB’s lawyers.
32 With regard to the amount of work which the contentious proceedings generated for the ECB’s lawyers in respect of all the cases referred to in paragraph 25 above, the ECB seeks EUR 117 733.75 (EUR 140 103.16 with VAT) in lawyers’ fees, corresponding to 280.60 hours of work, divided as follows:
– 199.10 hours of work at an hourly rate of EUR 475;
– 15.30 hours of work at an hourly rate of EUR 412.50;
– three hours of work at an hourly rate of EUR 350;
– 63.20 hours of work at an hourly rate of EUR 250.
33 The ECB submitted in that respect an invoice from its lawyers, together with records of hours worked, annexed to its letter of 19 April 2016 (see paragraph 4 above).
34 First, it is apparent from that invoice that the 199.10 hours of work at an hourly rate of EUR 475 and the 15.30 hours of work at an hourly rate of EUR 412.50 were performed by five different lawyers. Given the hourly rates charged, it must be assumed that they were particularly experienced lawyers.
35 As is apparent also from the invoice referred to in paragraph 33 above, two lawyers (‘the main lawyers’) among those five carried out most of the work, the other three lawyers’ involvement consisted mainly in advisory or supervisory and coordination tasks.
36 In that regard, it must be noted that 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 the case, the fees of a number of lawyers may be considered necessary expenses. The primary consideration is nonetheless the total number of hours of work which may appear to be objectively necessary for the purpose of the contentious proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (order of 15 September 2010, Huvis v Council, T‑221/05 DEP, not published, EU:T:2010:402, paragraph 30).
37 In the present case, admittedly, the complex issues raised by the action required an in-depth analysis resulting in a large number of hours of work performed by particularly experienced lawyers. However, the involvement of only two particularly experienced lawyers was necessary. As to the hourly rate charged by the main lawyers, it cannot be regarded as excessive.
38 Secondly, it is apparent from the invoice referred to in paragraph 33 above that the three hours of work invoiced at an hourly rate of EUR 350 correspond to editorial revision and discussions on procedural questions, which cannot be considered to be necessary for the purposes of the proceedings, given the presumed experience of those lawyers.
39 Thirdly, it is apparent from the invoice referred to in paragraph 33 above that the 63.20 hours of work at an hourly rate of EUR 250 correspond to various tasks carried out by two of the probably less experienced lawyers in providing assistance to the main lawyers. Assistance provided by less experienced lawyers to lawyers who bear the main responsibility in complex contentious proceedings facilitates the latter’s tasks and is likely to reduce the total amount of expenses significantly. Furthermore, the hourly rate charged in this instance cannot be regarded as excessive.
40 It is therefore appropriate to examine whether the number of hours of work performed by the main lawyers and by the lawyers who assisted them, namely 277.60 hours, can be considered to be necessary for the purposes of the contentious proceedings in question.
41 In that regard, first, it should be recalled that at the time when the cases referred to in paragraph 25 above were closed, the ECB had lodged a single written pleading in each case, namely a 23-page objection of inadmissibility, together with various annexes. Moreover, the objections of inadmissibility lodged in the English-language cases all had the same content, in essence, and those lodged in the Greek-language cases were almost identical to each other. Accordingly, the ECB’s lawyers had to draft, in practice, only two sets of template objections of inadmissibility; the first one for all English-language cases and the second one for all Greek-language cases.
42 Notwithstanding the complexity of the legal points common to the applications, a good understanding of the material and legal circumstances applicable to all the cases as well as the drafting of the sections common to both sets of template objections of inadmissibility referred to in paragraph 41 above did not justify a total of 277.60 hours.
43 In the light of the foregoing considerations, it is appropriate to set at 200 the number of hours necessary as lawyers’ fees common to all the cases referred to in paragraph 25 above. Taking into account the various fee rates (EUR 475, EUR 412.50 and EUR 250), the total costs incurred for the purposes of the proceedings in all the cases referred to in paragraph 25 above will be fairly assessed by taxing their amount at EUR 80 000 plus VAT, that is to say, EUR 95 200.
44 With regard to the amount of work which the contentious proceedings specifically generated for the ECB’s lawyers in respect of the English-language cases referred to in paragraph 25 above, it is apparent from the documents before the Court that the ECB seeks EUR 22 411.25 (EUR 26 669.39 with VAT) in lawyers’ fees.
45 It is apparent from the invoice referred to in paragraph 33 above that those fees correspond to 54.30 hours of work performed solely by the main lawyers and, in particular, to 54.10 hours of work performed by the lawyer whose work was invoiced at an hourly rate of EUR 412.50.
46 In that regard, it must be noted that the drafting and structure of the applications in the English-language cases referred to in paragraph 25 above were particularly complicated. Those applications thus posed significant comprehension problems. In addition, the actions raised specific and complex legal issues. Accordingly, it is reasonable to find that a good understanding of the material and legal circumstances applicable specifically to the English-language cases as well as the drafting of the specific parts of the first set of template objections of inadmissibility mentioned in paragraph 41 above required a relatively large number of hours of work from a particularly experienced lawyer.
47 However, the 54.30 hours of work done in this instance cannot be regarded as necessary in that regard. The costs to be recovered as lawyers’ fees common to all the English-language cases referred to in paragraph 25 above will be fairly assessed by taking into account 40 hours of work at an hourly rate of EUR 412.50, which corresponds to EUR 16 500 plus VAT, that is to say, EUR 19 635.
48 With regard to the apportionment of the sums resulting from paragraphs 43 and 47 above between the various cases referred to in paragraph 25 above, it must be found that the method of apportionment suggested by the ECB (see paragraph 30 above) is objective and reasonable. It is thus for CMBG to bear 1/12 of the EUR 95 200 mentioned in paragraph 43 above and 1/6 of the EUR 19 635 mentioned in paragraph 47, that is to say, EUR 11 205.83 in total.
49 Lastly, with regard to the amount of work which the present taxation of costs proceedings generated for its lawyers, the ECB seeks EUR 340 plus VAT in lawyers’ fees, making a total of EUR 404.60, and submitted an invoice from its lawyers in that respect, together with records of hours worked. It is apparent from that invoice that a lawyer worked four hours to draft four applications for taxation of costs, corresponding to four of the cases referred to in paragraph 25 above, in respect of which the applicants in the case lodged no appeal before the Court of Justice, including the case that gave rise to the Court order.
50 First, the four hours that the ECB’s lawyers worked can be considered to be necessary for the purposes of drafting the applications for taxation of costs in the cases referred to in the previous paragraph. Furthermore, the hourly rate applied is not excessive.
51 Secondly, the sum claimed by the ECB from CMBG amounts to 1/4 of the total amount invoiced by its lawyers, which results from an objective and reasonable method of apportionment.
52 In those circumstances, it must be found that the costs to be recovered as lawyers’ fees in respect of the present taxation of costs proceedings can be set at EUR 404.60, as claimed by the ECB.
53 In the light of all the foregoing considerations, the whole of the costs to be recovered by the ECB will be fairly assessed by taxing their amount at EUR 11 610.43 including VAT, which takes account of all the circumstances of the case up to the date of this order.
54 Lastly, there is no need to give a ruling on the ECB’s request for an authenticated copy of the present order. Indeed, such a request is purely administrative in nature and is outside the scope of the present dispute on taxation of the ECB’s recoverable costs (order of 14 November 2016, von Storch and Others v ECB, T‑492/12 DEP, not published, EU:T:2016:668, paragraph 28).
On those grounds,
THE GENERAL COURT (Fourth Chamber)
Hereby orders:
The total amount of costs to be reimbursed by CMBG Ltd to the European Central Bank (ECB) is set at EUR 11 610.43.
Luxembourg, 21 September 2017.