ORDER OF THE GENERAL COURT (Ninth Chamber)
21 December 2023 (*)
(Procedure – Taxation of costs)
In Case T‑48/11 DEP,
British Airways plc, established in Harmondsworth (United Kingdom), represented by A. Lyle-Smythe, lawyer,
applicant,
v
European Commission, represented by N. Khan and A. Dawes, acting as Agents,
defendant,
THE GENERAL COURT (Ninth Chamber),
composed of L. Truchot, President, H. Kanninen (Rapporteur) and M. Sampol Pucurull, Judges,
Registrar: V. Di Bucci,
having regard to the judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988),
makes the following
Order
1 By its application, based on Article 170 of the Rules of Procedure of the General Court, the applicant, British Airways plc, requests the Court to fix at EUR 752 584.49, namely GBP 620 176.75, the amount of recoverable costs to be paid by the defendant, the European Commission, in respect of the costs incurred by the applicant in the proceedings in Case T‑48/11.
Background to the dispute
2 By application lodged at the Court Registry on 24 January 2011 and registered as Case T‑48/11, the applicant brought an action for partial annulment of Commission Decision C(2010) 7694 final of 9 November 2010 relating to a proceeding under Article 101 TFEU, Article 53 of the EEA Agreement and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport (Case COMP/39258 – Airfreight), in so far as it concerns the applicant (‘the contested decision’).
3 By judgment of 16 December 2015, British Airways v Commission (T‑48/11, not published, EU:T:2015:988) (‘the 2015 judgment’), the Court upheld the applicant’s application and ordered the Commission to pay, in addition to its own costs, the costs incurred by the applicant.
4 By letter of 19 August 2016, the applicant informed the Commission that the total amount of recoverable costs, including lawyers’ fees and other expenses, amounted to GBP 620 176.75.
5 By letter of 12 September 2016, the Commission expressed its disagreement with the amount of costs claimed by the applicant, stating that it appeared to be excessive.
6 By letter of 25 November 2016, the applicant made a new proposal in the amount of GBP 375 947.03.
7 By letter of 17 January 2017, following an exchange of letters of 8 December 2016 from the Commission and 21 December 2016 from the applicant, the Commission offered to reimburse the applicant an amount of EUR 75 250.
8 By judgment of 14 November 2017, British Airways v Commission (C‑122/16 P, EU:C:2017:861), the Court of Justice dismissed the appeal lodged by the applicant against the 2015 judgment.
9 Following the applicant’s refusal to accept the amount referred to in paragraph 7 above, by letter of 3 April 2018, the Commission submitted a new offer in the amount of EUR 83 500.
10 Despite several subsequent exchanges, no agreement was reached between the parties on the amount of recoverable costs.
Forms of order sought
11 The applicant claims that the Court should:
– fix the amount of recoverable costs to be reimbursed by the Commission at EUR 752 584.49 (GBP 620 176.75) in respect of the main proceedings or, in the alternative, fix a different amount;
– determine the amount of costs due, in addition to those mentioned above, in respect of the present taxation proceedings;
– order the Commission to pay default interest on the amount to be reimbursed from the date of the Court’s order taxing the costs to be paid until the date of actual payment at the ECB’s refinancing rate increased by 3.5% or, in the alternative, for such a period and at such a rate as the Court may deem appropriate.
12 The Commission contends that the Court should:
– fix the amount of recoverable costs in the main proceedings at EUR 83 000, including EUR 81 000 for lawyers’ fees and EUR 2 000 for disbursements;
– make no order as to costs in the present proceedings.
Law
13 Under Article 170(3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Court, at the request of the party concerned, is to give its decision by way of an order from which no appeal may lie, after giving the party concerned by the application an opportunity to submit its observations.
14 According to Article 140(b) of the Rules of Procedure ‘expenses necessarily incurred by the parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers’ are to be regarded as recoverable costs. It follows from that provision that recoverable costs are limited to those incurred for the purpose of the proceedings before the Court and to those which were necessary for that purpose (see order of 6 March 2003, Nan Ya Plastics and Far Eastern Textiles v Council, T‑226/00 DEP and T‑227/00 DEP, EU:T:2003:61, paragraph 33 and the case-law cited).
15 In the present case, the applicant relies on various costs and fees, namely lawyers’ fees and disbursements.
Lawyers’ fees
16 It is settled case-law that the Courts of the European Union are authorised, not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the Court is not obliged to take account of any national scale of lawyers’ fees or any agreement in that regard between the party concerned and his or her agents or advisers (see, to that effect, orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17, and of 8 July 2020, Fastweb v Commission, T‑19/17 DEP, not published, EU:T:2020:331, paragraph 22 and the case-law cited).
17 It should also be recalled that, in the absence of provisions of EU law laying down fee scales or the necessary working time, the 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, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest that the parties had in the proceedings (see, to that effect, orders of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18, and of 8 July 2020, Fastweb v Commission, T‑19/17 DEP, not published, EU:T:2020:331, paragraph 23 and the case-law cited).
18 The amount of the costs recoverable in the present case must be determined in accordance with those considerations.
The purpose, nature and significance of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case
19 As regards the purpose and nature of the proceedings, as well as the difficulties presented by the case, it should be noted that the contested decision concerned 21 addressees, including the applicant, and described, in its grounds, a single and continuous infringement of Article 101 TFEU, Article 53 of the Agreement on the European Economic Area (EEA) and Article 8 of the Agreement between the European Community and the Swiss Confederation on Air Transport. According to those grounds, those addressees had coordinated their pricing behaviour in the provision of freight services on a global basis by means of the fuel surcharge, the security surcharge and the payment of commission payable on surcharges. The Commission held the applicant liable for that conduct in its entirety and consequently imposed on it a fine of EUR 104 040 000.
20 By its action, the applicant sought the partial annulment of the contested decision, in so far as that decision concerned it. First, the applicant sought annulment of the contested decision, in so far as it was alleged that it participated in the refusal to pay commission. Second, it disputed the duration of its infringement. Third, it criticised the Commission for having found that certain ‘elements’ relating to certain third countries constituted infringements. In support of its action, the applicant relied on seven pleas in law.
21 It should be noted that the contested decision was complex from a factual and legal point of view and of a significant length, and that the legal problems at issue in the main proceedings could not be resolved by a mere application of EU law without an in-depth analysis. The bringing of the action and the presentation of the pleas put forward by the applicant required a full examination of the contested decision in so far as that decision concerned the applicant.
22 As regards the significance of the dispute from the point of view of EU law, it should be noted that the application raised a difficult question. The applicant had put forward a plea alleging errors of law and of fact and misuse of powers as regards the taking into account of regulatory regimes in force in third countries.
23 It is true that, as the Commission points out, the Court did not examine the pleas put forward by the applicant, but raised of its own motion a defective statement of reasons vitiating the contested decision, which led the Court to annul the contested decision within the limits defined by the form of order sought in the application. The ground for annulment related, in particular, to contradictions between the grounds of that decision, which described a single and continuous infringement covering all the routes in question, and its operative part, which referred, according to the interpretation adopted, to four separate single and continuous infringements or a single and continuous infringement, the liability for which was attributed in a differentiated manner to the undertakings concerned. In addition, the Court considered that the grounds of the contested decision contained significant internal inconsistencies. The analysis of the existence of a defective statement of reasons, in particular as regards the contradiction between the grounds of the contested decision and its operative part, also presented difficulties as such, as is apparent from the reasoning of the 2015 judgment.
24 Consequently, the dispute in the main proceedings was factually and legally complex and clearly significant from the point of view of EU law.
The financial interest which the parties had in the proceedings
25 As regards the financial interest of the proceedings for the applicant, it should be borne in mind that that interest must be assessed by the yardstick of the applicant’s global economic resources (see, to that effect, order of 28 May 2013, Elementis and Others v Commission, T‑43/10 DEP, not published, EU:T:2013:270, paragraph 43).
26 In the present case, the amount of the fine, namely EUR 104 040 000, represented only 1.15% of the applicant’s total turnover in the business year preceding the adoption of the contested decision.
27 Notwithstanding the foregoing, first, it must be held that the amount of the fine was high. Second, as the applicant submits, the main proceedings could have an impact on actions for damages brought by third parties against the applicant before national courts, which was, moreover, noted in paragraphs 39 to 42 of the 2015 judgment.
28 The Court therefore considers that the case was of significant financial interest to the applicant.
The amount of work which the main proceedings may have entailed for the applicant’s advisers
29 As regards the amount of work to which the proceedings may have entailed for the applicant’s representatives, it should be recalled that the Courts of the European Union are not bound by the account lodged by the party seeking to recover costs. 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 have provided the services in question (see order of 29 November 2016, TrekStor v EUIPO – Scanlab (iDrive), T‑105/14 DEP, not published, EU:T:2016:716, paragraph 16 and the case-law cited).
30 In order to assess the amount of work carried out by the applicant’s representatives, it is necessary to take into account, in respect of the services provided by them, first, the drafting of the 50-page application (after regularisation); second, the drafting of the 25-page observations on the Commission’s defence; third, the drafting of the 11-page written response to the Court’s questions dated 30 March 2015; fourth, the drafting of two requests seeking to redact certain information that was confidential vis-à-vis the public and to add to the case file certain documents comprising two pages and one page respectively; fifth, observations on the Commission’s observations concerning those requests made by the applicant; and, sixth and lastly, attendance at the hearing on 18 May 2015, which lasted for one morning. In addition to the documents drafted by the applicant, a large number of annexes were prepared.
31 In addition, the applicants’ lawyers had to examine the documents in the file and the arguments raised by the Commission. In that regard, it should be noted that the contested decision comprises 296 pages, the defence, 65 pages, the Commission’s request for clarification concerning the Court’s decision to allow the submission of observations, one page, the Commission’s observations on the applicant’s observations on the defence, 23 pages, the Commission’s response to the Court’s questions dated 30 March 2015, 16 pages, the Commission’s observations on the requests for confidential treatment and measures of organisation of procedure, two pages. In addition to those documents which the applicant had to examine, it is necessary to add the annexes which accompanied them.
32 It therefore cannot be disputed that the main proceedings involved a significant workload for the applicant’s representatives.
33 In that regard, the applicant claims, first, reimbursement of GBP 313 319.77 (EUR 380 213.54) in respect of the fees invoiced by the Solicitor firm, corresponding to 861 hours and seven minutes of work.
34 In support of that claim, the applicant produces 15 fee notes relating to the costs incurred and the services provided by that firm. It is apparent from those notes that one partner, four associates, a ‘foreign lawyer’ and 15 trainees worked on the main proceedings. Those notes mention the documents drawn up and the steps taken, as well as the amount of the fees for those services:
– the first note sets out fees of GBP 40 630.83, corresponding to 123 hours and three minutes of work between 19 December 2010 and 31 January 2011, carried out by one partner, two associate lawyers and three trainees, relating, in particular, to the preparation of the application and questions relating to confidentiality in the publication of the contested decision in the Official Journal of the European Union;
– the second note sets out fees of GBP 2 856.17, corresponding to nine hours and 26 minutes of work in February 2011, carried out by a partner, an associate lawyer and a trainee, relating to the regularisation of the application;
– the third note sets out fees of GBP 2 694, corresponding to nine hours and 17 minutes of work in March 2011, carried out by an associate lawyer and a trainee concerning the revision of the summaries of the applications of the other sanctioned parties, research into the evidence used in the leniency procedures, the summary of the case or also the regularisation of the application;
– the fourth note sets out fees of GBP 4 147.50, corresponding to nine hours and 13 minutes of work between 26 May 2011 and 30 June 2011, carried out by two associate lawyers, relating, in particular, to the analysis of the Commission’s defence;
– the fifth note sets out fees of GBP 18 816.42, corresponding to 31 hours and 32 minutes of work in July 2011, carried out by a partner, two associate lawyers and one trainee, relating to the analysis of the defence and questions of confidentiality;
– the sixth note sets out fees of GBP 3 930.83, corresponding to six hours and 45 minutes of work in September 2011, carried out by a partner and an associate lawyer, relating to the services in connection with the request to submit a reply;
– the seventh note sets out fees of GBP 15 158.41, corresponding to 31 hours and nine minutes of work in October 2011, carried out by a partner, an associate lawyer, two trainees and a ‘foreign lawyer’, relating to research, analyses of the case-law and contacts between Solicitors and Barristers, as well as with the applicant’s in-house lawyers and the representatives of the other parties referred to in the contested decision;
– the eighth note sets out fees of GBP 6 091.66, corresponding to 12 hours and 51 minutes of work in November 2011, carried out by a partner, two associate lawyers and a trainee, relating, in particular, to questions concerning the confidentiality in the publication of the contested decision in the Official Journal of the European Union;
– the ninth note sets out fees of GBP 1 697.50, corresponding to four hours and 42 minutes of work in April 2013, carried out by a partner, an associate lawyer and two trainees, relating, in particular, to the preparation of observations on the defence;
– the tenth note sets out fees of GBP 50 525.30, corresponding to 146 hours of work in May 2013, carried out by a partner, an associate lawyer and a trainee, relating, in particular, to the preparation of the response to the defence;
– the eleventh note sets out fees of GBP 12 240.70, corresponding to 32 hours of work in June 2013, carried out by a partner, an associate lawyer and a trainee, relating, in particular, to the preparation of the response to the defence;
– the twelfth note sets out fees of GBP 1 194.80, corresponding to five hours and six minutes of work in July 2013, carried out by an associate lawyer and a trainee, relating, in particular, to the regularisation of the response to the defence;
– the thirteenth note sets out fees of GBP 4 782.40, corresponding to 16 hours and 12 minutes of work in October 2013, carried out by a partner, an associate lawyer and a trainee and relating, in particular, to the study of the Commission’s observations on the applicant’s observations on the defence;
– the fourteenth note sets out fees of GBP 58 081.50, corresponding to 199 hours and 12 minutes of work between 11 February 2015 and 30 April 2015, carried out by a partner, two associate lawyers and two trainees, relating, in particular, to preparation for the hearing and drafting of the applicant’s answers to the questions put by the Court in the context of a measure of organisation of procedure;
– the fifteenth note sets out fees of GBP 90 323.60, corresponding to 265 hours and 48 minutes of work between 1 May 2015 and 26 June 2015, carried out by a partner, two associate lawyers and three trainees, relating to preparation for and attendance at the hearing.
35 Second, the applicant claims reimbursement of GBP 303 065.00 (EUR 367 769.38) in respect of the fees invoiced by three Barristers. Since the Barristers did not charge for their services on an hourly basis, the fee notes provided by the applicant in support of its application do not make it possible to identify the exact number of hours they spent on each stage of the procedure or the hourly rate they applied. However, they make it possible to identify the nature of the services and the date on which they were performed.
36 First of all, Mr R. O’Donoghue produces a fee note which includes the tasks performed from 4 October 2010 to 22 January 2016. That invoice shows fees of GBP 188 195. Those notes show an intervention at all stages of the procedure, including the preparation of the appeal before the Court of Justice.
37 Next, Mr P. Lasok QC produces two fee notes:
– the first note sets out fees of GBP 4 570, corresponding to tasks performed between 10 and 20 December 2010 relating, in particular, to the preparation of an opinion;
– the second note sets out fees of GBP 8 130.00, corresponding to tasks performed between 5 and 20 January 2010 relating to the application.
38 Lastly, Mr J. Turner QC produces four fee notes:
– the first note sets out fees of GBP 20 255, corresponding to tasks performed between 2 and 30 May 2015 relating, in particular, to the revision of the observations on the defence;
– the second and third notes set out fees of GBP 3 130 and GBP 190 respectively, corresponding to tasks performed between 4 June 2015 and 7 July 2015 relating to various tasks, the subject matter of which is not substantiated;
– the fourth note sets out fees of GBP 100 000, corresponding to tasks carried out between 24 April 2015 and 18 May 2015 relating to preparation for and attendance at the hearing.
The recoverability of the lawyers’ fees
39 First of all, it should be noted that not all the fees of the applicant’s representatives as set out in paragraphs 33 to 38 above are recoverable.
40 It should be noted, first, that while, in principle, the remuneration of only one agent, adviser or lawyer is recoverable, it is possible that, depending on the individual circumstances and, most importantly, the complexity of each case, the fees of a number of lawyers may be considered ‘necessary expenses’ under Article 140(b) of the Rules of Procedure (see, by analogy, order of 21 July 2016, Panrico v Bimbo, C‑591/12 P-DEP, not published, EU:C:2016:591, paragraph 28 and the case-law cited).
41 It is also apparent from the case-law that, where a party decides to be represented by both Solicitors and Barristers, it does not follow that the fees due to each of them are not to be regarded as costs necessarily incurred for the purpose of the proceedings. In taxing costs in those circumstances, the Court must examine the extent to which the services supplied by all the advisers concerned were necessary for the purpose of the legal proceedings and satisfy itself that the fact that both categories of lawyers were instructed did not entail any unnecessary duplication of costs (see, to that effect, order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraphs 43 and 44).
42 In the present case, although it may be accepted that the use of several Solicitors and Barristers was justified in the light of the complexity of the case and the significance of the dispute for the applicant, the analysis of the fee notes shows that the combined use of three Barristers, five Solicitors, a foreign lawyer and 15 trainees had, in the present case, the consequence of giving rise to an overlap and a repetition of the efforts made and a multiplication of costs at all stages of the proceedings before the Court.
43 The fee notes show that the application and the observations on the defence lodged by the applicant were first drafted by a Barrister and then revised and amended by at least three other lawyers and that all the written submissions lodged by the Commission were analysed by three or four lawyers. It is also apparent from those notes that, during each exchange, the Solicitor firm carried out extensive research and analysis of the case-law. As regards the applicant’s answers to the questions put by the Court in the context of a measure of organisation of procedure, they were drafted, in parallel, by a number of associate lawyers and then reviewed by the partner of the Solicitor firm with the assistance of a Barrister. Similarly, the documents annexed to the pleadings lodged by the applicant before the Court were prepared by one or two trainees supervised by a Solicitor and then by a Barrister. Furthermore, preparing for the hearing involved four persons from the Solicitor firm and two Barristers and it is apparent from the notes that although only one Barrister drafted the oral argument, another Barrister and several lawyers from the Solicitor firm contributed to it.
44 The revision of the pleadings lodged by the applicant and of the text of its oral argument cannot therefore be taken into account without allowing for an unnecessary duplication of costs. The same is true of the services relating to the revision of annexes. In that regard, although supervision of the work of trainees may be justified, it is apparent from the invoices that the intervention of up to six persons to that end led to a repetition of the efforts made.
45 Second, it should be borne in mind that the hours devoted to regularisation of procedural documents cannot be regarded as necessary for the purpose of the proceedings (see, to that effect, order of 13 June 2012, Trioplast Industrier v Commission, T‑40/06 DEP, not published, EU:T:2012:286, paragraph 53 and the case-law cited).
46 Accordingly, the hours set out in the second, third and twelfth notes which were devoted, in February and March 2011, to regularising the application and, in July 2013, to regularising the observations on the defence must be excluded from the recoverable costs.
47 Third, expenses incurred in the pre-litigation procedure are regarded as irrecoverable (orders of 5 July 1993, Meskens v Parliament, T‑84/91 DEP, EU:T:1993:57, paragraph 14, and of 8 July 2004, De Nicola v EIB, T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP, EU:T:2004:217, paragraph 30).
48 Since some of the tasks described by Mr R. O’Donoghue in his fee note were carried out between 4 and 27 October 2010, that is to say, before the contested decision was adopted, they must be excluded.
49 Fourth, lawyers’ fees for periods during which no procedural documents were notified must also be excluded since they are not necessary to the proceedings (see, to that effect, order of 20 May 2022, Moi v Parliament, T‑17/19 DEP, not published, EU:T:2022:352, paragraph 40 and the case-law cited). Nor can lawyers’ fees relating to a period subsequent to the oral procedure before the Court, where no procedural document was adopted after the hearing, be considered to be expenses necessarily incurred for the purpose of the proceedings (order of 6 January 2004, Mulder and Others v Council and Commission, C‑104/89 DEP, EU:C:2004:1, paragraph 48).
50 Accordingly, first, the hours invoiced during the periods in which no procedural document was notified, namely between 20 September 2011 and 7 June 2013, and between 27 September 2013 and 27 March 2015, cannot be taken into account in the present case as recoverable fees. Nor can account be taken of the fees invoiced by Mr R. O’Donoghue starting from 16 December 2015, devoted to the analysis of the judgment delivered by the Court in the main proceedings and the inferences which may be drawn from that judgment.
51 Fifth, it must be pointed out that the costs of coordination between the lawyers of the same party cannot be regarded as necessary costs to be taken into account in order to calculate the amount of recoverable costs (see orders of 21 May 2014, Esge v OHIM – De’Longhi Benelux (KMIX), T‑444/10 DEP, not published, EU:T:2014:356, paragraph 22 and the case-law cited, and of 21 January 2021, Biasotto v EUIPO – Oofos (OOF and OO), T‑453/18 DEP and T‑454/18 DEP, not published, EU:T:2021:40, paragraph 30 and the case-law cited).
52 Consequently, as the Commission rightly points out, the fee notes cannot be taken into account in so far as they refer to telephone conversations, attendance at conferences and email exchanges between the applicant’s representatives.
53 Sixth, since the costs of communications between lawyers and their clients must be reimbursed on a flat-rate basis as general expenses (see, to that effect, order of 20 May 2022, Moi v Parliament, T‑17/19 DEP, not published, EU:T:2022:352, paragraph 37), the tasks described in the fee notes which are linked to communications and meetings between the various categories of advisers and the applicant must be disregarded.
54 Seventh, services such as communication with the Court and tasks connected with the general follow-up of the file (emails, telephone calls) are clerical tasks which cannot be invoiced at a lawyer’s hourly rate (order of 22 December 2022, Team Beverage v EUIPO (Team Beverage), T‑359/20 DEP, not published, EU:T:2022:857, paragraph 34 and the case-law cited). Accordingly, emails and telephone calls exchanged with the Court Registry seeking to verify the time limits for lodging pleadings and the general state of the proceedings must be excluded from the recoverable costs.
55 Eighth, in accordance with the case-law referred to in paragraph 14 above, according to which recoverable costs are limited to those incurred for the purpose of the proceedings before the Court, the following costs cannot, as the Commission rightly points out, be taken into account: those relating to the preparation of the non-confidential version of the contested decision, to questions likely to arise in the event of the annulment of the contested decision, to actions for damages brought by individuals before courts other than the General Court and to investigations carried out in third countries.
The amount of recoverable lawyers’ fees
56 Certain fees having been rejected in paragraphs 40 to 55 above, it is necessary to examine whether the number of hours of work of the lawyers invoiced was objectively necessary in relation to the services provided and whether the hourly rate applied in that context was justified (see, to that effect, order of 27 April 2020, Spiegel-Verlag Rudolf Augstein and Sauga v ECB, T‑116/17 DEP, not published, EU:T:2020:168, paragraph 18).
57 First, it should be noted that the fee invoices included as an annex to the application have a purely probative and instrumental function. Therefore, it is not the task of the General Court to search for and identify among those documents the elements that could make up for the lack of precise information and detailed explanations in the application itself (order of 13 February 2008, Verizon Business Global v Commission, T‑310/00 DEP, not published, EU:T:2008:32, paragraph 50).
58 In particular, the lack of more precise information concerning the hourly rates of Barristers and the time they spent on each item makes it particularly difficult to verify precisely the costs incurred for the purpose of the proceedings before the Court and those which were necessary for that purpose, and places the Court in a situation where it necessarily makes a strict assessment of the fees recoverable in the present case (see, to that effect, order of 3 May 2012, CSL Behring v Commission and EMA, T‑264/07 DEP, not published, EU:T:2012:211, paragraph 24).
59 In the present case, it should be noted, in the first place, that the application for taxation of costs includes a table setting out, as regards Solicitors, the qualifications of the legal advisers sought, the hourly rates and the number of hours spent, depending on the qualifications of those advisers, on the performance of the tasks, and the total costs. As regards Barristers, that table indicates only the total amount of the costs. In Annex A.5 to the application, the applicant reproduced seven tables, also setting out the qualifications of the legal advisers sought, the hourly rates and the number of hours spent carrying out various tasks in the case of Solicitors and the total costs. According to the applicant, those costs correspond to the apportionment of costs in the light of the various stages of the procedure, namely the drafting of the application, the revision thereof, the study of the defence and the drafting of the request to lodge a reply, the drafting of the observations on the defence, the study of the Commission’s observations on the applicant’s observations on the defence, preparation of the replies to the Court’s questions and, lastly, preparation for and attendance at the hearing.
60 In addition, the applicant produced various invoices and detailed cost statements. However, the applicant does not provide any information making it possible to identify precisely which invoices and detailed cost statements support the amounts reported in each of the various tables mentioned above. Moreover, the amounts of fees set out in Table 1 included in the application do not correspond exactly to the total of the fees and the total number of hours calculated on the basis of the cost statements annexed to the application. As regards Barristers, the amount of the fees does not correspond exactly to the total amount calculated on the basis of the fee notes.
61 In the second place, as has already been pointed out in paragraph 35 above, the Barristers did not invoice the work carried out on an hourly basis and their invoices do not provide any details that would make it possible to identify the number of hours they spent on each stage of the main proceedings or the hourly rate they applied.
62 In the third place, the purpose of the services described in the fee notes is sometimes vague. That applies, in particular, to the costs incurred in the revision of pleadings (‘Commission defence’ or ‘Working and advising’), following up on the proceedings (‘follow up’), revising documents (‘perusing papers’), analysing and researching case-law (‘Coppens’) or exchanging information with people whose identity is sometimes specified, whereas their role or their relationship with the case is not (‘liasing Lovells’). Furthermore, the items often confuse several sets of tasks, even though the costs arising from the performance of some of them are non-recoverable (‘Preparing annexes including correspondence with Registry’ or ‘Response to Court, Call NF, Call with Counsel’). It is therefore impossible, in such cases, to determine whether the number of hours of work of the lawyers invoiced was objectively necessary in relation to the services provided.
63 Therefore, in the absence of sufficient information on the costs actually incurred for the purpose of the proceedings, including hourly rates and the time spent performing various tasks, the Court must carry out a necessarily strict assessment of the fees recoverable in the present case.
64 Second, it is apparent from the case-law that, where a party’s lawyers have already assisted that party during proceedings or procedures prior to the relevant action, it is necessary to have regard to the fact that those lawyers are aware of matters relevant to the action, which is likely to have facilitated their work and reduced the preparation time required for the judicial proceedings (orders of 8 November 2001, Kish Glass v Commission, T‑65/96 DEP, EU:T:2001:261, paragraph 25, and of 7 December 2004, Lagardère and Canal+ v Commission, T‑251/00 DEP, EU:T:2004:353, paragraphs 29 and 30).
65 Given that the Solicitor firm which advised the applicant in the main proceedings had represented the applicant during the administrative procedure prior to the bringing of the action, it may be considered that the Solicitors already had extensive knowledge of the legal issues connected with the main proceedings. Therefore, the use of Barristers, in addition to Solicitors, in order to draft and supervise the written pleadings lodged by the applicant, necessarily extended the time taken to prepare the proceedings before the Court, having regard, in particular, to the workload involved in acquainting oneself with a file such as that at issue in the present case.
66 It is apparent from the tables reproduced in Annex A.5 to the application that the Solicitor firm devoted 191 hours and 26 minutes to drafting the application and 18 hours and 43 minutes to revising it, 76 hours and 16 minutes studying the defence and the request to lodge a reply, 179 hours and 48 minutes drafting observations on the defence, 18 hours and 36 minutes studying the Commission’s observations on the applicant’s observations on the defence, 104 hours and 18 minutes preparing the replies to the Court’s questions and, lastly, 272 hours preparing for and attending the hearing. Accordingly, the Solicitor firm spent a total of 862 hours and 24 minutes on the entire procedure.
67 As noted on several occasions, the number of hours invoiced by the Barristers cannot be determined. Nevertheless, it is apparent from the Commission’s letters of 8 December 2016 and 17 January 2017, annexed to the observations on the application for taxation of costs, that, according to the calculations made by the Commission taking into account the total amount of the fees and the hourly rate proposed by the applicant in their prior exchanges, the total number of hours invoiced by the applicant’s lawyers could be assessed at 1 474 hours. In a letter of 20 March 2018, the applicant disputed the way in which that calculation was made but nonetheless maintained that 1 474 hours of work appear reasonable for a case file such as that in the present case. In its observations on the application for taxation of costs, the Commission considers that it would be appropriate to accept 270 hours.
68 It must be held that the number of 1 474 hours appears to be excessive and cannot, as a whole, be regarded as necessary within the meaning of Article 140(b) of the Rules of Procedure. Since only some of the services described in the cost statements may be regarded as recoverable, as is apparent from paragraphs 39 to 55 above, having regard also to the considerations set out in paragraphs 57 to 65 above, the significance of the dispute from the point of view of EU law and the difficulties presented by the case, it is appropriate to estimate 350 hours as being objectively necessary for the purposes of defending the applicant’s interests in the main proceedings.
69 As regards the hourly rate to be applied, it should be recalled that, in the absence, as EU law currently stands, of a scale in that regard, it is only where the average hourly rate invoiced appears manifestly excessive that the Court may depart from it and set ex aequo et bono the amount of recoverable fees for lawyers and expert economists (see order of 19 January 2021, Romańska v Frontex, T‑212/18 DEP, not published, EU:T:2021:30, paragraph 39 and the case-law cited).
70 The taking into account of a high hourly rate appears appropriate only to remunerate the services of professionals who have performed their duties efficiently and rapidly and must, consequently, be counterbalanced by a necessarily strict assessment of the total number of hours’ work necessary for the purposes of the proceedings (see order of 30 April 2018, European Dynamics Belgium and Others v EMA, T‑158/12 DEP, not published, EU:T:2018:295, paragraph 23 and the case-law cited).
71 In the present case, the hourly rates applied by the applicant’s Solicitors were between GBP 178 (EUR 216) for the trainees and GBP 785 (EUR 952.60) for the partner.
72 It should be noted that an hourly rate of up to GBP 785 (EUR 952.60) charged individually by some of the applicant’s lawyers cannot be regarded, by way of recoverable costs, as being objectively necessary for the purpose of the proceedings before the Court, even to remunerate the services of a particularly experienced professional.
73 As regards the Barristers, the hourly rates they applied are not specified by the applicant. However, the applicant provides English guidance on Barristers’ fees, showing that, for a one-hour hearing, a Barrister of the Chancery Division dealing with competition law cases, charges an hourly rate of GBP 757 (EUR 918.62) when he or she has more than ten years of experience, GBP 497 (EUR 603.11) when he or she has five to ten years of experience and GBP 291 (EUR 353.13) when he or she has up to five years of experience. According to the applicant, that information may be used as a guide to determine the reasonable hourly rate of the Barristers. However, the applicant does not specify the level of experience of the three Barristers in question.
74 The Commission proposes to use an average hourly rate of EUR 300.
75 It may be noted that, in any event, fees in the range of EUR 600 to EUR 900 per hour appear manifestly excessive.
76 Accordingly, the Court considers that, for a team which included, throughout the proceedings, up to 18 Solicitors and up to three Barristers, it is appropriate to take into account an average hourly rate of EUR 400 which has already been found to be appropriate in competition cases (see, to that effect, order of 17 August 2020, United Parcel Service v Commission, T‑194/13 DEP II, not published, EU:T:2020:372, paragraph 60).
77 In the light of all the foregoing considerations, the amount of recoverable costs must therefore be assessed at EUR 140 000.
Disbursements
The travel and subsistence costs
78 The applicant seeks reimbursement of EUR 4 601.57 (GBP 3 791.98) in respect of travel and subsistence costs. According to the applicant, those costs include the accommodation and travel expenses incurred by the Solicitors and Barristers in attending the hearing in Luxembourg on 18 May 2015.
79 The travel and accommodation costs of the Solicitor firm, according to the invoice provided, amount to GBP 1 912.28. It should be noted that that invoice does not contain details making it possible to identify precisely what those costs correspond to.
80 The Barristers’ travel and accommodation costs are detailed in the invoices prepared by them. As regards Mr R. O’Donoghue, they are, first, GBP 709.24 for the return flight from London to Luxembourg, second, GBP 140.61 to cover the subsistence expenses in Luxembourg on the eve of the hearing, scheduled for the following morning, and, third, GBP 155.00 in respect of other hotel expenses. As regards Mr J. Turner QC, they are, first, GBP 670.44 for the return flight from London to Luxembourg, second, GBP 164.01 to cover the subsistence expenses in Luxembourg on the eve of the hearing and, third, GBP 40.40 for taxi fares in Luxembourg. The sum of those various costs comes to a total of GBP 1 879.70 (EUR 2 281.01).
81 However, as the Commission points out, no receipts were provided by the applicant to attest to the reality and the amount of the costs in question.
82 It is, however, for the person applying for costs to adduce evidence establishing the authenticity and the amount of the travel and subsistence expenses in respect of which he or she claims reimbursement (order of 26 January 2017, Nürburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 34).
83 While the absence of supporting evidence does not preclude the Court fixing the amount of the recoverable costs on the basis of an equitable assessment, it nonetheless places it in a situation where its assessment of the claims submitted by the applicant for costs must necessarily be strict (see order of 21 March 2018, K&K Group v EUIPO, T‑2/16 DEP, not published, EU:T:2018:175, paragraph 37 and the case-law cited).
84 The travel and subsistence costs relating to the main proceedings must therefore be fixed at a flat rate of EUR 1 000.
The general expenses
85 The Court considers that the communications referred to in paragraph 53 above should be allowed as recoverable costs. Those costs cannot be covered by lawyers’ fees but must be reimbursed as general expenses.
86 In that regard, it should be borne in mind that it is, in principle, for the applicant to establish the actual amount of the procedural costs in respect of which reimbursement is sought (see, inter alia, order of 8 July 2004, De Nicola v EIB, T‑7/98 DEP, T‑208/98 DEP and T‑109/99 DEP, EU:T:2004:217, paragraph 42).
87 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 (order of 28 May 2013, Marcuccio v Commission, T‑278/07 P-DEP, EU:T:2013:269, paragraph 16 and the case-law cited).
88 The Courts of the European Union have nevertheless held that, in the absence of precise information as to the amount and allocation of general expenses, and since the reality of such expenses cannot be disputed, it is permissible to fix their amount at a flat rate of 5% of the lawyers’ fees (orders of 26 January 2006, Camar v Commission, T‑79/96 DEP and T‑260/97 DEP, not published, EU:T:2006:25, paragraph 71, and of 16 May 2007, Chatziioannidou v Commission, F‑100/05 DEP, EU:F:2007:83, paragraph 31).
89 In the present case, the existence of general expenses, as described above, cannot be disputed. In respect of those expenses, it may be accepted that a flat-rate amount of 5% of the lawyers’ fees, that is to say, an amount of EUR 7 000, does not exceed what was necessary for the conduct of the proceedings before the Court.
The expenses relating to the present taxation of costs proceedings
90 With regard to the costs incurred in connection with the present taxation proceedings, in the absence of an assessment by the applicant of the recoverable costs relating to these proceedings, the Court considers that the costs that are objectively necessary for the protection of its interests can be assessed on an equitable basis at EUR 1 600, that is, 4 hours’ work at an hourly rate of EUR 400 (see, to that effect, order of 16 October 2017, NeXovation v Commission, T‑353/15 DEP, not published, EU:T:2017:737, paragraph 43).
Default interest
91 The applicant requests the Court to order the Commission to pay to it default interest on the amount of costs to be reimbursed, from the date of service of the taxation order until the date of payment.
92 According to settled case-law, an application made in the course of proceedings for taxation of costs for default interest to be added to the amount due must be allowed for the period between the date the order for taxation of costs is served and the date of the actual reimbursement of the costs (see order of 27 November 2020, Flabeg Deutschland v Commission, T‑103/15 DEP, not published, EU:T:2020:585, paragraph 60 and the case-law cited).
93 The applicable interest rate is to be calculated, having regard to Article 99(2)(b) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), on the basis of the interest rate applied by the European Central Bank (ECB) to its principal refinancing operations in force on the first calendar day of the month in which payment is due, increased by three and a half percentage points (order of 25 September 2019, Bilbaína de Alquitranes and Others v Commission, T‑689/13 DEP, not published, EU:T:2019:698, paragraph 58).
94 Consequently, the amount of recoverable costs will accrue default interest, from the date of service of the present order, at the rate calculated on the basis of the rate fixed by the ECB for the principal refinancing operations applicable during the period concerned, increased by three and a half percentage points.
95 In the light of all the foregoing considerations, the Court considers that the costs recoverable by the applicant may be assessed on an equitable basis by fixing the amount thereof at EUR 149 600, which takes account of all the circumstances of the case up to the date of the present order.
On those grounds,
THE GENERAL COURT (Ninth Chamber)
hereby orders:
1. The total amount of the costs to be reimbursed by the European Commission to British Airways plc is fixed at EUR 149 600.
2. Default interest shall be due on that amount from the date of notification of the present order until the date of payment. The applicable interest rate shall be calculated on the basis of the rate fixed by the European Central Bank (ECB) for its main refinancing operations and in force on the first calendar day of the month in which the deadline for payment falls, increased by three and a half percentage points.
Luxembourg, 21 December 2023.