ORDER OF THE GENERAL COURT (Fifth Chamber)
16 April 2018 (*)
(Procedure — Taxation of costs)
In Case T‑553/13 DEP,
European Dynamics Luxembourg SA, established in Ettelbrück (Luxembourg),
Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece),
represented by C.-N. Dede, lawyer,
applicants,
v
European Joint Undertaking for ITER and the Development of Fusion Energy, represented by R. Hanak and G.T. Poszler, acting as Agents,
defendant,
APPLICATION for taxation of costs to be reimbursed by European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE to the European Joint Undertaking for ITER and the Development of Fusion Energy following the judgment of 2 December 2015, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint Undertaking Fusion for Energy (T‑553/13, not published, EU:T:2015:918),
THE GENERAL COURT (Fifth Chamber),
composed of M. Prek (acting as President), I. Labucka (Rapporteur) and V. Kreuschitz, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By application lodged at the Court Registry on 5 November 2013, the applicants brought an action seeking, first, annulment of the decision of 7 August 2013 of the European Joint Undertaking for ITER and the Development of Fusion Energy (‘F4E’) taken in the context of the tendering procedure F4E-ADM-0464 concerning IT, consulting, software development, Internet and support services (OJ 2012/S 213-352451), rejecting the tender submitted by European Dynamics Luxembourg SA and awarding the contracts to other tenderers (‘the contested decision’), and, second, an award of damages.
2 By judgment of 2 December 2015, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint Undertaking Fusion for Energy (T‑553/13, not published, EU:T:2015:918), the Court dismissed that action and ordered the applicants to pay the costs.
3 By letter of 30 August 2016, F4E requested reimbursement from the applicants of the costs incurred in the amount of EUR 31 581.11 and detailed all of the costs incurred by sending the supporting documents relating to those costs.
4 By letter of 23 September 2016, the applicants indicated to F4E that the costs incurred were disproportionate and proposed, alternatively, to reimburse an amount of EUR 15 000.
5 By letter of 10 October 2016, F4E rejected that proposal and proposed to set the amount owed at EUR 30 000, a proposal which was rejected by the applicants on 9 November 2016.
6 By letter of 9 December 2016, F4E requested that the applicants reconsider their position, which request the applicants turned down on 21 December 2016.
Procedure and forms of order sought
7 By document lodged at the Court Registry on 30 June 2017, F4E, pursuant to Article 170(1) of the Rules of Procedure of the General Court, brought the present application for taxation of costs.
8 The applicants submitted their observations on the present application by document lodged at the Court Registry on 25 August 2017.
9 F4E claims that the Court should:
– set the total amount of recoverable costs at EUR 31 581.11;
– order the applicants to pay the costs.
10 The applicants contend that the Court should:
– set the total amount of recoverable costs at EUR 15 000;
– order F4E to pay the costs.
Law
11 F4E asks that the amount of the recoverable costs be set at EUR 31 581.11, that amount being composed by adding EUR 28 960.40 corresponding to the fees of the lawyers ad litem, including the travel expenses incurred by those lawyers in relation to the hearing held on 16 April 2015 (‘the hearing’), and EUR 2 620.71 corresponding to the travel and subsistence expenses incurred by three agents of F4E who attended the hearing.
12 The applicants argue that, in the light of the subject matter and nature of the proceedings, their low level of significance from the point of view of EU law and the relative difficulty presented by the case, the relative amount of work which the proceedings must have generated for the agents and lawyers involved and the limited financial interests which the parties had in the proceedings, the total number of hours invoiced is disproportionate and unreasonable.
13 According to the applicants, a maximum of 80 hours at an hourly rate of EUR 180 would have been sufficient and objectively necessary to cover the needs of the case, corresponding to a total amount of EUR 14 400, to which only EUR 600 should be added as reimbursement of travel and subsistence expenses relating to a single agent of F4E.
14 In that regard, it should be recalled that, pursuant to Article 170 of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the General Court is required, on application by the party concerned and after hearing the other party, to make an order, from which no appeal lies.
15 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.
16 It follows from that latter 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 12 January 2016, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13 DEP, EU:T:2016:9, paragraph 11).
17 In the present case and regarding, at the outset, the nature of the costs in respect of which taxation is sought, it is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union, applicable to proceedings before the General Court pursuant to the first paragraph of Article 53 of that Statute, that the institutions of the European Union are free to have recourse to the assistance of a lawyer. That lawyer’s remuneration is covered by the concept of expenses necessarily incurred for the purposes of the proceedings, without the institution being required to show that such assistance is objectively warranted (orders of 23 March 2012, Kerstens v Commission, T‑498/09 P DEP, EU:T:2012:147, paragraph 20, and of 11 December 2014, Longinidis v Cedefop, T‑283/08 P-DEP, EU:T:2014:1083, paragraph 24).
18 Nonetheless, according to settled case-law, while the Court is not empowered to tax the fees payable by the parties to their own lawyers, it may determine the amount of those fees to 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 fixing lawyers’ fees or any agreement concluded in that respect between the party concerned and its agents or advisers (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17 and the case-law cited).
19 It has also consistently been held that, in the absence of any applicable provisions of EU law 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 interest which the parties had in the proceedings before the Court (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18 and the case-law cited).
20 In fixing the recoverable costs, the Court is required take 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 (order of 31 March 2011, Tetra Laval v Commission, T‑5/02 DEP and T‑80/02 DEP, EU:T:2011:129, paragraph 54).
21 It is on the basis of those factors that the present application must be assessed.
22 In that regard, F4E’s application must, in the first place, be assessed independently of the specific amount that it is claiming as recoverable costs.
23 First of all, in order for it to be determined whether the costs actually incurred were necessary for the purposes of the proceedings, precise details must be provided by the party seeking to recover costs (order of 27 November 2012, Gualtieri v Commission, T‑413/06 P DEP, EU:T:2012:624, paragraph 53).
24 More specifically, the assessment of the value of the work carried out depends on the accuracy of the information provided (order of 9 November 1995, Ahlström Osakeyhtiö and Others v Commission, C‑89/85 DEP, EU:C:1995:366, paragraph 20).
25 In the present case, F4E produced several sufficiently detailed notes setting out the fees of its lawyers ad litem and the tasks carried out by those lawyers, as well as precise supporting documents specifying the travel and subsistence expenses of its agents, thus allowing the Court to assess whether the costs incurred were necessary.
26 Thus, it is necessary to assess F4E’s application in the light of, first, the invoice issued by F4E’s lawyers ad litem, secondly, the three fee notes provided, which set out the hours of work performed for each legal task and the lawyers’ disbursements for representing F4E at the hearing, and, thirdly, the supporting documents relating to the travel and subsistence expenses of the three agents of F4E who attended the hearing.
27 Next, as regards the nature of the proceedings, the present application concerns the costs incurred in the context of the action brought by the applicants which included, first, an application for annulment of the contested decision and, second, an application for damages.
28 The proceedings thus had a relative significance for EU law and did not raise any novel issue of law.
29 The Court was asked, in addition to the question of whether F4E had complied with its obligation to state reasons as regards the tendering decisions, whether a contracting authority infringes, in particular, the principle of equal treatment if it carries out the evaluation of tenders submitted to it even though one of those tenders has expired.
30 The same applies to the difficulty presented by the case.
31 It is apparent, first, from the reasoning of the Court’s judgment in Case T‑553/13 that F4E had evaluated all of the tenders submitted, including that submitted by the applicants which had expired, the applicants having been unable to demonstrate that their tender had been rejected for that same reason.
32 Second, as regards the claim for compensation for the damage allegedly suffered by the applicants, the latter failed to demonstrate that there had been any unlawful conduct on the part of F4E, a fact which is shown, moreover, by the brevity of the Court’s grounds for rejection.
33 In addition, although the claim for damages admittedly had a not insignificant financial impact in view of the amount of damages and interest sought, amounting to EUR 150 000, that financial impact remained more than relative in view of the low chances of success of the application for compensation brought by the applicants.
34 Furthermore, it is necessary to assess the amount of work carried out by F4E’s lawyers ad litem, which, according to the applicants, is disproportionate and unreasonable in view of the nature of the proceedings and their significance from the point of view of EU law.
35 In this regard, it should be noted, first, that, while, in principle, the remuneration of a single lawyer is recoverable, it is possible that, depending on the individual circumstances and, most importantly, on the complexity of each case, the fees of a number of lawyers may be regarded as expenses necessarily incurred (order of 6 January 2004, Mulder and Others v Council and Commission, C‑104/89 DEP, EU:C:2004:1, paragraph 62; order of 15 September 2004, Fresh Marine v Commission, T‑178/98 DEP, EU:T:2004:265, paragraph 35).
36 Second, the primary consideration is the total number of hours of work which may appear to be objectively necessary for the purposes of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (order of 30 October 1998, Kaysersberg v Commission, T‑290/94 (92), EU:T:1998:255, paragraph 20).
37 However, it is also necessary to point out that dividing the work of preparing the pleadings among several lawyers necessarily involves some duplication of effort (see order of 21 October 2014, Foshan City Nanhai Golden Step Industrial v Council, T‑410/06 DEP, EU:T:2014:917, paragraph 27).
38 In the present case, with regard to the amount of work generated by the proceedings in Case T‑553/13, it must be noted, first, that F4E’s lawyers were required to draft a statement of defence of 26 pages, as well as a rejoinder of 18 pages, and to prepare for the oral hearing and to represent F4E at that hearing.
39 With more specific regard to the tasks carried out, those tasks are clearly identified and directly connected to the proceedings in question, with the exception of the preparation of a draft letter dated 3 February 2017 addressed to the Court of Auditors of the European Union.
40 Apart from that invoiced task, the drafting of the pleadings and documents submitted in the context of the written part of the procedure before the Court, the entirety of the legal research carried out, and the meetings or telephone calls between the lawyers ad litem and F4E, all came within the scope of the proceedings.
41 Secondly, it is clear from the fee notes that F4E’s lawyers ad litem invoiced for 115.3 hours of work, including 46.7 hours of work for drafting the statement of defence, 30.2 hours for drafting the rejoinder and 38.4 hours for the preparation for the hearing, including the lawyers’ return journey to Luxembourg and participation in the hearing.
42 Thirdly, the drafting of the statement of defence and the preparation for the hearing were carried out by two lawyers, including an associate, assisted in their ad hoc research by two legal experts. By contrast, only the two lawyers were involved in drafting the rejoinder.
43 The associate was involved for a total of 31.4 hours of invoiced work and the second lawyer for a total of 81.2 hours of invoiced work, the remaining invoiced hours corresponding to the involvement of one of the two legal experts for a total of 2.7 invoiced hours.
44 In that regard, the involvement of the two lawyers for the drafting of the statement of defence and the rejoinder admittedly did not give rise to a strict duplication of the tasks invoiced. The second lawyer was, in essence, responsible for preparing a draft of the pleadings under the supervision of the associate, who became involved principally, at an advanced stage, in order to proofread and, as necessary, insert accompanying comments in respect of those pleadings.
45 The fact nonetheless remains that it cannot be ruled out, in the light of the fee notes, that the involvement of the two lawyers may have given rise, at the very least, to some duplication of effort, which might be apparent, in particular, from the vague description of certain tasks carried out by the associate corresponding to the drafting of ‘memorandums’ and ‘conclusions’.
46 Fourthly, the lawyers were assisted several times by agents of F4E, who, according to F4E, had knowledge of the legal issues raised by the applicants.
47 Thus, taking account of the relative difficulty of Case T‑553/13, of some duplication of effort and of the limited size of the pleadings drafted, the number of hours of work put forward by F4E appears excessive as regards the assessment of the amount of recoverable costs.
48 Consequently, the total number of hours of work which may appear to have been necessary for the purposes of the proceedings before the Court can be assessed on an equitable basis at 100 hours, which includes the two lawyers’ travel and the participation in the hearing.
49 Setting the total number of hours of work at 80 hours, as the applicants suggest, cannot be accepted since that would amount, in the circumstances of the present case, to taking into account only the hours invoiced by the second lawyer.
50 Although the involvement of two lawyers admittedly might have given rise to a partial duplication of effort, that does not in any way mean that there was an actual duplication of the tasks carried out.
51 Lastly, as regards the lawyers’ disbursements of EUR 104.90, the necessity of those disbursements cannot be disputed in the circumstances of the present case.
52 By contrast, as regards the travel and subsistence expenses of the agents of F4E who attended the hearing, it should be recalled that three agents attended that hearing, namely two in-house legal advisers and one legal expert with knowledge of the institutional organisation of F4E.
53 Admittedly, as was argued by F4E, it is apparent from the case-law that, in addition to being represented by a lawyer, an institution may be represented by an agent at a hearing, with the result that the travel and subsistence expenses may, as appropriate, be included in the category of expenses necessarily incurred (order of 12 December 1997, Nölle v Council and Commission, T‑167/94 (92), EU:T:1997:195, paragraph 21).
54 The fact nonetheless remains that, in the present case, F4E was, in addition to being represented by two lawyers, represented by three of its agents, without providing express and legitimate reasons for the presence of all of those agents.
55 F4E confines itself solely to specifying the functions of those agents, namely, two agents specialised in public procurement procedures and an agent specialised in the organisation and functioning of F4E.
56 Although the presence of one agent specialised in the issues raised by the action brought by the applicants might, in the present case, be justified, the same does not apply in regard to the presence of either a second agent with the same skills or a third agent specialised in a field which does not relate directly to the dispute.
57 Thus, only the travel and subsistence expenses of a single agent may be regarded as necessary in the circumstances of the case.
58 In the light of those considerations, F4E’s application must be assessed, in the second place, in respect of the specific amount which it is claiming as recoverable costs.
59 As regards the costs incurred by F4E, it is apparent from an examination of the fee invoices that those costs are in the amount of EUR 31 581.11, which includes EUR 28 960.40 in respect of lawyers’ fees.
60 With regard to those fees, F4E makes reference to the application of an hourly rate of EUR 250.
61 In that regard, it should be borne in mind, first of all, that an hourly rate of around EUR 250 or EUR 300 can be regarded as appropriate, according to the case-law, only as remuneration for the services of a particularly experienced professional, who is capable of working very efficiently and rapidly. For remuneration at such a rate to be taken into account there must, moreover, in return be an assessment, necessarily strict, of the total number of hours of work essential for the purposes of the proceedings before the Court (order of 20 November 2012, Al Shanfari v Council and Commission, T‑121/09 DEP, not published, EU:T:2012:607, paragraph 40).
62 In the present case, it is apparent from the fee notes that the tasks invoiced at that rate were almost exclusively carried out by an associate and by an experienced lawyer.
63 Similarly, the evaluation of the total number of hours was carried out strictly, in so far as a precise number of hours corresponds to each task carried out.
64 Therefore, by reference to the fee notes, F4E’s lawyers ad litem met those criteria of experience, efficiency and rapidity overall, which, in the circumstances of the present case, allows the rate applied to be regarded as appropriate.
65 Consequently, the application for taxation of costs can be assessed on an equitable basis by fixing the recoverable costs at EUR 26 000, that final amount corresponding to the reimbursement of the lawyers’ disbursements relating to the holding of the hearing, the travel and subsistence expenses of one agent of F4E, and the invoicing of 100 hours of work at an average hourly rate of EUR 250.
Costs incurred in connection with the taxation of costs proceedings
66 Since the sum set at EUR 26 000 by way of costs in Case T‑553/13 takes account of all the circumstances of the case to date, a separate ruling need not be given on the costs incurred by the parties for the purposes of the present proceedings for taxation of costs (see, to that effect, orders of 2 March 2009, Fries Guggenheim v Cedefop, T‑373/04 DEP, EU:T:2009:43, paragraph 32, and of 28 February 2013, Marcuccio v Commission, C‑513/08 P-DEP, EU:C:2013:109, paragraph 22).
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
The total amount of the costs to be reimbursed by European Dynamics Luxembourg SA and Evropaïki Dynamiki — Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE in connection with the
proceedings before the General Court is fixed at EUR 26 000.
Luxembourg, 16 April 2018.