ORDER OF THE GENERAL COURT (Fifth Chamber)
6 September 2011 (*)
(Procedure – Taxation of costs)
In Case T‑211/07 DEP,
AWWW GmbH ArbeitsWelt-Working World, established in Göttingen (Germany), represented by B. Schreier, lawyer,
applicant,
v
European Foundation for the Improvement of Living and Working Conditions (Eurofound), represented by C. Callanan, Solicitor,
defendant,
APPLICATION for taxation of costs to be reimbursed by AWWW GmbH ArbeitsWelt-Working World to the European Foundation for the Improvement of Living and Working Conditions (Eurofound) following the judgment of 1 July 2008 in Case T‑211/07 AWWW v Eurofound, not published in the ECR,
THE GENERAL COURT (Fifth Chamber),
composed of S. Papasavvas, President, V. Vadapalas and K. O’Higgins (Rapporteur), Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Registry of the Court on 13 June 2007, the applicant brought an action for annulment of the decision of the European Foundation for the Improvement of Living and Working Conditions (Eurofound) of 17 April 2007 rejecting its tender submitted in a Community public procurement procedure for the provision of services of information and analysis on quality of work and employment, industrial relations and restructuring covering the European level.
2 By a separate document lodged at the Registry of the Court on 18 June 2007, the applicant applied for interim measures under Articles 242 and 243 EC seeking, principally, suspension of the implementation of Eurofound’s decision of 17 April 2007 and, in the alternative, an order for all necessary measures to prevent implementation of that decision and, in particular, prohibiting Eurofound from awarding the contract to the successful tenderer. By order of 14 September 2007, the judge hearing the application for interim measures rejected the application and reserved costs.
3 On 4 September 2007 Eurofound lodged its defence. On 9 October 2007, the Court (Fourth Chamber) decided, pursuant to Article 47 of its Rules of Procedure, that a second round of pleadings was not necessary. The hearing, at which both parties participated, took place on 29 January 2008.
4 By judgment of 1 July 2008 in Case T‑211/07 AWWW v Eurofound, not published in the ECR, the Court dismissed the action and ordered the applicant to pay the costs, including those incurred in the application for interim measures.
5 By letter of 23 October 2008, Eurofound sought reimbursement of EUR 37 573.18 as costs from the applicant.
6 By email of 6 May 2009, and after an exchange of correspondence between the parties’ representatives, the applicant argued that that amount was excessive and offered reimbursement of EUR 6 990.
7 Having failed to reach agreement with the applicant on the amount of costs, Eurofound, by document lodged at the Registry of the Court on 16 March 2010, requested the Court to make an order fixing, in accordance with Article 92(1) of its Rules of Procedure, the amount of costs to be reimbursed at EUR 37 573.18.
8 In its submissions lodged at the Registry of the Court on 30 April 2010, the applicant requested the Court to dismiss Eurofound’s application and to fix the amount of costs recoverable ‘in line with the Conclusions of the Petition Committee [of the European Parliament] and the written Statement of the Legal Service of the … Commission’ (see paragraph 12 below).
Law
Arguments of the parties
9 The costs which Eurofound is seeking recovery of amount to EUR 37 573.18 and are broken down as follows:
– legal fees: EUR 35 392.50
– solicitors’ fees: EUR 27 500 + EUR 5 775 (value added tax (VAT) at 21%) = EUR 33 275
– barristers’ fees: EUR 1 750 + EUR 367.50 (VAT at 21%) = EUR 2 117.50
– photocopying expenses: EUR 194.03 + EUR 40.75 (VAT at 21%) = EUR 234.78
– travel expenses and subsistence expenses in Luxembourg: EUR 1 945.90
10 In relation to the solicitors’ fees sought, Eurofound claims that they correspond to 79 hours and 10 minutes of work – which is not in any way excessive – and that the team working on the case included two partners, one assistant and two trainees. It states that, as a body of the European Union, it was entitled to appoint a person who is not a member of its staff as agent. Furthermore, it submits that the letter of the Legal Service of the Commission of 8 July 2009 and the communication to members of the European Parliament’s Petition Committee concerning petition No 0253/2009 relied on by the applicant are irrelevant. Finally, it claims that the case is significant from a European Union law perspective.
11 The applicant submits that the amount sought by Eurofound as recoverable costs is totally disproportionate to the economic interest of the case, namely EUR 69 900, and that, since it is only a small company with two employees, it would be forced into insolvency if it had to reimburse that amount. It claims that the case was an ordinary case relating to the award of public procurement contracts and that it did not present any special legal difficulties. It adds that the number of hours invoiced by Eurofound’s lawyers is excessive and that it was not necessary for Eurofound to use several lawyers. It states that the fees it paid to its own lawyers only amounted to EUR 7 568.40.
12 The applicant states that on 20 February 2009 it submitted a petition to the European Parliament, registered under reference 0253/2009, in which it asked for revision, in the case of small companies, of the rules applicable to the reimbursement of procedural costs and asked the Parliament to intervene with Eurofound in order that it reduce the amount claimed as recoverable costs. It explains that the petition was closed during a meeting of the Petition Committee on 3 and 4 November 2009, on the basis of a written response of the Commission which had been the subject of a communication to members of the Petition Committee in September 2009. The applicant adds that it also sent, on 6 April 2009, an email to the Vice-President of the Commission in which it described Eurofound’s request for reimbursement and sought inter alia his support and to which the Legal Service of the Commission responded by letter of 8 July 2009. In that communication and that letter, it was indicated that the costs incurred in cases brought against the institutions or bodies of the European Union in relation to the award of public procurement contracts are generally very low.
13 In addition, the applicant claims that insufficient justification is given for the amount claimed by Eurofound and that its request for reimbursement was vitiated by several formal defects. The applicant submits in particular that Eurofound is not entitled to claim payment of the VAT and that the travel expenses incurred by Eurofound are excessive in the light of its own internal rules regarding reimbursement of such expenses.
Findings of the Court
14 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, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal lies.
15 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‑342/99 DEP Airtours v Commission [2004] ECR I‑1785, paragraph 13 and the case-law cited).
16 Eurofound’s application must therefore be rejected from the outset in so far as it seeks reimbursement by the applicant of the costs relating to the period after 29 January 2008, the date on which the hearing was held (see, to that effect, order in Case T‑38/95 DEP Groupe Origny v Commission [2002] ECR II‑217, paragraph 31). In that regard, it is apparent from the detailed account of the solicitors’ services, annexed to the application for taxation of costs, that they claim to have completed 31 hours and 20 minutes of work during that period.
17 In the first place, as regards the costs recoverable in respect of representation fees, as a preliminary point, it should be noted that Eurofound, as a European Union body, was, as regards the manner in which it intended to be represented before the Court, free to choose either one of its officials or a person who was not a member of its staff as agent (see, to that effect, order in Case 126/76 DEP Dietz v Commission [1979] ECR 2131, paragraph 5). Moreover, since Eurofound in this instance chose to appoint an external lawyer as agent the remuneration of the latter comes within the concept of expenses necessarily incurred for the purpose of the proceedings (see, to that effect, Dietz v Commission, paragraph 6). Those findings are not in any way contradicted by the information contained in the letter of the Legal Service of the Commission of 8 July 2009 and in the written response of the Commission communicated to members of the Petition Committee in September 2009. Indeed, in the letter and the written response the Commission rightly points out that when the institutions and bodies of the European Union choose to be represented in a case before the courts of the European Union by one of their officials, the costs in respect of which they may seek reimbursement are very low because those costs are limited to travel and subsistence expenses incurred by the official for the purpose of the hearing in Luxembourg. In this case, since Eurofound appointed a person who is not a member of its staff to represent it – as it was entirely free to do even if, generally, the institutions and bodies of the European Union use an official from their own legal service – there is no reason to limit the costs recoverable to those expenses.
18 It has consistently been held that the Court is not empowered to tax the fees payable by the parties to their own lawyers, but 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 of lawyers’ fees or any agreement in that regard between the party concerned and his agents or advisers (see order in Airtours v Commission, paragraph 15 above, paragraph 17 and the case-law cited).
19 It has also consistently been held that, since European Union law does not contain 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 European Union 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 in Airtours v Commission, paragraph 15 above, paragraph 18 and the case-law cited).
20 It is by having regard to those factors that the amount of the costs recoverable in this case should be determined.
21 In respect of the purpose and nature of the proceedings, their significance from the point of view of European Union law as well as the difficulties presented by the case, it should be noted that they involved an action for annulment of a decision of Eurofound rejecting a tender submitted by the applicant in a tendering procedure for the provision of services of information and analysis. The case raised, in essence, firstly, the question whether that decision was properly reasoned and secondly, whether Eurofound had correctly applied the selection and award criteria governing the award of the contract at issue. It involved questions which were neither new nor particularly complex, whether in legal or factual terms, and which were only of limited importance from the point of view of European Union law.
22 As regards the financial interest of the proceedings, it should be noted that the tender submitted by the applicant, which was rejected by Eurofound’s decision of 17 April 2007, proposed a price of EUR 69 900. The case did not therefore have a particularly high financial interest.
23 Furthermore, in the light of the considerations set out at paragraph 21 above, the Court takes the view that the proceedings could only have generated an average amount of work for Eurofound’s lawyers. In that regard, it should be noted that, in respect of the application for interim measures, firstly, the written submissions lodged by Eurofound contained only 12 pages and, secondly, the judge hearing the application for interim measures gave a ruling without hearing oral arguments from the parties beforehand. As regards the case in the main proceedings, only one exchange of pleadings took place and the defence presented by Eurofound also contained only 12 pages and largely reproduced the arguments which it had already outlined in its written submissions referred to above. For the remainder, Eurofound was merely requested to produce a document by way of measures of organisation of procedure and participated in the hearing.
24 It is apparent from the detailed account of the solicitors’ services that they spent 47 hours and 50 minutes in total working on the preparation and the drafting of the pleadings referred to in paragraph 23 above as well as the preparation for and participation in the hearing, which – irrespective of the number of solicitors between whom those services might have been divided – does not seem unreasonable.
25 Furthermore, it may be deduced from the same detailed account that the average hourly rate charged was around EUR 420 (excluding VAT) for those 47 hours and 50 minutes of work, which seems excessive. The average hourly rate applied in the present case should not exceed EUR 285, which is indeed in itself an hourly rate which can be regarded as appropriate only as remuneration for the services of a professional with a particularly large amount of experience, able to work very efficiently and fast (order of 15 September 2010 in Case T‑221/05 DEP Huvis v Council, paragraph 41).
26 Similarly, the amount of EUR 1 750 (excluding VAT) claimed by Eurofound for barrister fees is excessive by reference to a fee note which merely mentions two services dated 25 September 2007 and does not provide any details in relation to the number of hours worked or the hourly rate applied. It would be a fair assessment of those fees to fix the amount at EUR 1 000.
27 In the second place, in respect of the photocopying expenses, estimated by Eurofound at EUR 194.03 (excluding VAT), it should be considered that this amount is not exaggerated, contrary to what was claimed by the applicant in its submissions.
28 In the third place, concerning the amounts claimed as VAT, it must be noted that, under Article 20 of Regulation (EEC) No 1365/75 of the Council of 26 May 1975 on the creation of a European Foundation for the improvement of living and working conditions (OJ 1975 L 139, p. 1) the Protocol on the privileges and immunities of the European Communities applies to the Foundation. Accordingly, as rightly claimed by the applicant, Eurofound is inter alia exempt from payment of VAT on goods and services that it purchases. In the present case, it cannot therefore include that tax in the recoverable costs.
29 Finally, in the fourth place, as regards the travel and subsistence expenses in respect of which Eurofound seeks payment up to a maximum amount of EUR 1 945.90, firstly, it should be noted that they include the expenses incurred by one of its officials in order to attend the hearing of 29 January 2008. However, according to settled case-law, travel and subsistence expenses incurred by people other than the lawyers of the party concerned are recoverable only if the presence of those persons was necessary for the purpose of the proceedings (see, to that effect, order in Joined Cases T‑85/94 DEP and T‑85/94 OP‑DEP Branco v Commission [1998] ECR II‑2667, paragraph 24), which was not the case here. Accordingly, only the expenses incurred for the lawyer appointed as agent are accepted. Secondly, even in respect of those expenses, it should be noted that they are only partially recoverable. Thus, Eurofound seeks reimbursement of a total amount of EUR 997.60 for air travel expenses while the amount incurred under the same heading for its official amounts only to EUR 140.77. For the remainder, it must be stated that only the amount of EUR 170 for the lawyer’s hotel expenses in Luxembourg has been backed up by supporting documentation. In those circumstances, the amount of travel and subsistence expenses recoverable must be fixed at a flat rate of EUR 600.
30 In the light of all the foregoing considerations, a fair assessment of all the costs recoverable by Eurofound is made by fixing a total of EUR 17 000; that amount takes account of all the circumstances of the case up to the date of this order. It is therefore not necessary to rule separately on the expenses incurred for the purposes of the present proceedings concerning taxation of costs (see order in Case T‑178/98 DEP Fresh Marine v Commission [2004] ECR II‑3127, paragraph 43 and the case-law cited).
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
The total amount of costs to be reimbursed by AWWW GmbH ArbeitsWelt-Working World to the European Foundation for the Improvement of Living and Working Conditions (Eurofound) is fixed at EUR 17 000.
Luxembourg, 6 September 2011.