ORDER OF THE GENERAL COURT (Third Chamber)
25 October 2018 (*)
(Procedure — Taxation of costs — Fixing of the recoverable costs — Joint and several liability)
In Case T‑406/10 DEP,
Emesa-Trefilería, SA, established in Arteixo (Spain),
Industrias Galycas, SA, established in Vitoria (Spain),
represented by Me A. Creus Carreras and by Me A. Valiente Martin, lawyers,
applicants,
v
European Commission, represented by V. Bottka and A. Biolan, acting as Agents,
defendant,
supported by
Council of the European Union, represented by F. Florindo Gijón and by R. Liudvinaviciute-Cordeiro, acting as Agents,
intervener,
APPLICATION for taxation of costs brought by the Commission following the judgment of 15 July 2015, Emesa-Trefilería and Industrias Galycas v Commission (T‑406/10, EU:T:2015:499),
THE GENERAL COURT (Third Chamber),
composed of S. Frimodt Nielsen (Rapporteur), President, I.S. Forrester and E. Perillo, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 On 30 June 2010, the Commission adopted Decision C(2010) 4387 final of 30 June 2010 relating to a proceeding under Article 101 TFEU and Article 53 of the EEA Agreement (case COMP/38344 — Prestressing Steel), amended by Commission Decision C(2010) 6676 final of 30 September 2010, and by Commission Decision C(2011) 2269 final of 4 April 2011 (the decision, as amended constituting ‘the contested decision’, which was addressed to Emesa-Trefileria and Industrias Galycas.
2 By application lodged at the Court Registry on 15 September 2010, they brought an action seeking annulment and reformulation of the contested decision.
3 By judgment of 15 July 2015, Emesa-Trefilería and Industrias Galycas v Commission (T‑406/10, EU:T:2015:499), the General Court dismissed the action and ordered the applicants to bear their own costs and those of the European Commission and the Council of the European Union.
4 By letter of 15 October 2015, the Commission’s legal service contacted the applicants’ lawyers, Me Creus Carreras and Me Valiente Martin, to inquire about the mailing address of those companies and to inform them that it would send them a recovery order for an amount of EUR 15 489 corresponding to the costs incurred by the Commission, namely EUR 15 000 in fees paid to an external lawyer which the Commission had used in that case, and EUR 489 in administrative costs for Commission Agents.
5 By email of 25 November 2015, Me Valiente Martin stated the following to the Commission:
‘After our call, I forwarded again your email with no reply from the companies. Please do proceed to send the invoices directly to the companies. The addresses are right so they must receive your letters there. I recommend you to send them via formal letter with acknowledgement receipt so you can be sure about the reception.’
6 On 17 December 2015, the Commission’s Directorate-General for Budget sent a debit note to each of the applicants for an amount of EUR 15 489.
7 On 15 February 2016 those letters were returned to the Commission by the postal services with the reference ‘inconnu’ (unknown).
8 According to the Commission, the applicant’s lawyers next stated that they no longer represented the applicants and had no information as to their existence or address, respectively.
9 Next, the Commission contacted Me Creus Carreras and Me Valiente Martin, who were also the lawyers for ArcelorMittal, an undertaking which was also the subject of the contested decision. According to the Commission, ArcelorMittal had in fact paid the applicants’ legal fees under an agreement which bound it to them, both being former subsidiaries of that undertaking. ArcelorMittal however had stated that the agreement did not cover the payment of the applicants’ legal costs if the applicants lost their action and hence ArcelorMittal refused to cover the applicants’ legal costs following the judgment dismissing their action.
10 The Commission’s legal service moreover contacted the lawyers of Companhia Previdente and its subsidiary Socitrel, who had represented them in Cases T‑413/10, T‑414/10, on the one hand, and T‑409/13, on the other, which also related to the contested decision. The Commission’s legal service asked them to confirm that Companhia Previdente had become the parent company or the successor of the applicants so that Companhia Previdente takes on the reimbursement of expenses payable by the applicants to the Commission.
11 By email of 19 December 2017, Me Caimoto Duarte informed the Commission that his colleague and he no longer represented that undertaking and that he did not know about the legal status of Galycas and whether that company formed part of the Companhia Previdente group.
12 As no agreement was reached between the parties on recoverable costs, the Commission brought, by document lodged at the Court Registry on 1 January 2018, the present application for taxation of costs, in which it claims that the Court should:
– set the amount of the Commission’s costs relating to the proceedings in Case T‑406/10, which has to be repaid jointly and severally by Emesa, Galycas and Companhia Previdente, as follows:
– first, EUR 15 489 (of which EUR 15 000 represents the external lawyer’s fees, and EUR 489 represents administrative costs for the Commission’s agents),
– second, the costs of the Commission for the present taxation proceedings in the event of an oral hearing;
– provide the Commission with an authenticated copy of the taxation order.
13 On 23 March 2018, the General Court Registry notified by e-Curia the application for taxation of costs to the applicants’ lawyers, in accordance with Article 4 of the Court’s decision of 14 September 2011 on the lodging and service of procedural documents by means of e-Curia, and stated that the deadline for submitting their observations on the application for taxation of costs had been set at 8 May 2018.
14 No change in the representation of the applicants has been communicated to the Court.
15 The applicants did not submit observations on the Commission’s application for taxation of costs.
Law
16 It follows from Article 170(3) of the Rules of Procedure that, 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 his observations.
17 It has been repeatedly held that the admissibility of an application for taxation of costs cannot depend on a lack of response on the part of the party ordered to pay the costs or the possible existence of a prior agreement between the parties, as the procedure under Article 170 of the Rules of Procedure, which serves to achieve a definitive ruling on the costs of the proceedings, would otherwise be deprived of all practical effect (see, to that effect, orders of 28 February 2013, Commission v Marcuccio, C‑528/08 P-DEP, not published, EU:C:2013:110, paragraph 15 and of 28 February 2013, Commission v Marcuccio, C‑432/08 P-DEP, not published, EU:C:2013:108, paragraph 15).
18 In the present case, it must be stated that the applicants have not replied in any way to the various requests made by the Commission.
19 Their silence, however, cannot be interpreted as an absence of challenge (orders of 21 September 2015, CAMEA, T‑195/13 DEP, not published, EU:T:2015:730, paragraph 9 and of 7 February 2018, Scorpio Poland v EUIPO-Eckes-Granini Group (YO!), T‑745/15 DEP, not published, EU:T:2018:84, paragraph 9).
20 Moreover, it should be borne in mind that following settled case-law, the representatives of a party in a case in the main proceedings remain the point of contact for the Court until that party appoints, as appropriate, a new representative (see, to that effect, orders of 28 May 2013, Marcuccio v Commission, T‑278/07 P‑DEP, EU:T:2013:269, paragraphs 7 and 8 and of 9 July 2013, Marcuccio v Commission, T‑46/08 P-DEP, not published, EU:T:2013:362, paragraphs 6 and 7).
21 As was pointed out in paragraph 13 above, the application for taxation of costs has been notified to the applicants’ representatives by e-Curia and no change in the applicants’ representation has been communicated to the Court.
22 The applicants were therefore given the opportunity to submit their observations, in accordance with Article 170(3) of the Rules of Procedure. The applicants did not however submit observations on the Commission’s application for taxation of costs.
23 Under 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.
24 Moreover, it follows from Article 170 of the Rules of Procedure that the recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, second, to those which were necessary for that purpose (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 13 and the case-law cited).
25 In addition, in the absence of EU law 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 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 interests which the parties had in the proceedings (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18 and the case-law cited).
26 In that regard, as 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, the institutions of the European Union are free to have recourse to the assistance of a lawyer. The remuneration of the latter therefore falls within the concept of expenses necessarily incurred for the purpose of the proceedings (orders of 16 May 2013, Internationaler Hilfsfonds v Commission, C‑208/11 P-DEP, EU:C:2013:304, paragraph 14 and of 23 March 2012, Kerstens v Commission, T‑498/09 P-DEP, EU:T:2012:147, paragraph 20).
27 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, EU:T:2012:147, paragraph 15, and of 23 May 2013, Marcuccio v Commission, T-278/07 P-DEP, EU:T:2013:269, paragraph 13).
Joint and severable liability of Companhia Previdente
28 The Commission has submitted its application for the taxation of costs against the applicants and Companhia Previdente, which the Commission regards, in essence, as being jointly and severally liable since it has become the parent company of the applicants following their acquisition in 2004.
29 Companhia Previdente is thus, according to the Commission, the economic successor of the applicants and should, as a result, be held jointly and severally liable for the reimbursement of the costs payable by them, following the case-law on economic succession.
30 That line of argument must be rejected.
31 It must be borne in mind that Article 170 of the Rules of Procedure of the General Court, relating to disputes over recoverable costs, is set out in Chapter Seventeen of those Rules relating to applications for judgments and orders.
32 Article 170(1) of the Rules of Procedure provides that ‘[i]f there is a dispute concerning the costs to be recovered, the party concerned may apply to the General Court to determine the dispute’, and Article 170(2) of the Rules of Procedure specifies that ‘[t]he application shall be served on the party concerned by the application ...’
33 The procedure by which the General Court rules on the recoverable costs takes place therefore between the parties who were in the case which gave rise to the judgment in the main proceedings.
34 Companhia Previdente was not a party to Case T‑406/10, which gave rise to the judgment of 15 July 2015, Emesa-Trefilería and Industrias Galycas v Commission (T‑406/10, EU:T:2015:499).
35 To declare Companhia Previdente jointly and severally liable for the costs for which Emesa and Galycas are liable would be tantamount to ordering, for the first time, Companhia Previdente to pay the costs, with no right of appeal for it, whereas the sole purpose of the procedure for the taxation of costs is to determine the costs for which a party is liable and was ordered to pay in the case in the main proceedings.
36 It must therefore be stated that the General Court has no jurisdiction, in the context of the procedure for the taxation of costs laid down by Article 170 of the Rules of Procedure, to order Companhia Previdente jointly and severally to pay the costs of Emesa and Galycas following the judgment in the main proceedings.
37 The Commission’s application in that regard must therefore be dismissed.
Recoverable costs
38 In support of its action, the Commission makes the following arguments.
39 In the first place, it takes the view that the case which gave rise to the judgment in the main proceedings was significant as regards cartels and recalls that it was one of 28 actions for annulment and eight proceedings for interim measures brought against the contested decision, which had also been amended twice.
40 In the second place, it submits that the judgment in the main proceedings concerned certain complex and important issues, among which, first, the rejection of an argument alleging an infringement of Article 6 of the European Convention on Human Rights, of Article 47 of the Charter of Fundamental Rights and of the right to an impartial tribunal; second, the rejection of a plea alleging breach of the principle of good administration, of Article 41 of the Charter, of the principle of equal treatment and fairness, covering the lack of extension of the benefit of leniency introduced by ArcelorMittal España to Emesa and Galycas in view of their status as former subsidiaries of that company, members of the group at the time that the infringement took place; and third, of the rejection of an argument concerning the application of paragraph 23 of the Leniency Notice in the light of the situation of Arcelor Mittal España.
41 In the third place, the Commission submits that it was a relatively large cartel case, requiring a substantial amount of work in proceedings lasting more than five years and leading to two pleadings being drafted and participation in a hearing.
42 In the fourth place, the Commission takes the view, as regards the economic interests at stake, that the applicants had not been subject to a very high fine (EUR 2.57 million) in relation to those imposed on the other undertakings covered by the contested decision, the fine was nonetheless very high for the two companies in question.
43 In the fifth place, the Commission states that the work done by the external lawyer was carried out on the basis of a lump sum service contract, providing for an overall amount of remuneration broken down into separate payments corresponding to the various stages of the procedure (defence, rejoinder and participation in the hearing). In the present case, the Commission confirms that the external lawyer did not participate in the hearing and that the payment of the sum of EUR 15 000 corresponds to his work in the context of the written procedure.
44 The tasks performed by the external lawyer more specifically included, according to the Commission, the discussion of the case with the legal service and the Directorate General for Competition case teams studying the file and preparing the draft defence and rejoinder.
45 In the sixth place, the Commission requests reimbursement of the administrative costs incurred by Commission officials who attended the hearing.
46 In accordance with the case-law set out in paragraph 25 above, it is necessary in the present case to take account of 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 interests which the parties had in the proceedings.
47 The case which gave rise to the judgment in the main proceedings concerns competition law, and more particularly cartel law, and the contested decision, amended twice during the course of the proceedings by the Commission, gave rise, as the Commission notes, to 28 actions and eight applications for interim measures.
48 Moreover, the case which gave rise to the judgment in the main proceedings was certainly of significance, however in essence due to the questions it raised in connection with the leniency application brought by ArcelorMittal España. It must be borne in mind that the treatment of those questions was made more difficult for the General Court by the Commission’s attitude, which was, moreover, ordered to pay to it an amount of EUR 1 500 by way of Article 139(a) of its Rules of Procedure in order to reimburse part of the costs which the latter had had to incur (see paragraphs 191 to 195 of the judgment in the main proceedings).
49 As regards the economic stakes involved in the dispute, it must be stated, as the Commission does, that although the amount of the fine was, in absolute terms, relatively limited, it was nonetheless still high in view of the applicants’ specific financial situation.
50 As regards the extent of the work created by the contentious proceedings, the case giving rise to the judgment in the main proceedings is the only one, directed against the contested decision or the amending decisions, which was brought with English as the language of the case.
51 It should also be noted that the service contract concluded by the Commission with the external lawyer provided for payment to the latter:
– of EUR 10 000 after the lodging of the defense,
– of EUR 5 000 after the lodging of the rejoinder,
– and of EUR 5 000 after the hearing.
52 The Commission submits, in an annex, the following supporting documents:
– various invoices submitted by the external lawyer, dated 1 April 2011, 25 February 2011, 28 February 2011, 6 May 2011, 16 May 2011, 21 October 2011, and 22 November 2011, all of which cancel and replace an invoice of 12 December 2010, all of which relate to the preparation of the defence but all indicate the same dates — 13 December 2010, 14 December 2010, 15 December 2010, 20 December 2010, 13 January 2011, 14 January 2011 and 23 January 2011 — as to the drafting of those pleadings;
– an invoice of 22 November 2011 relating to the preparation of the rejoinder, without details of the duties performed by the external lawyer;
– a Commission payment order in the amount of EUR 10 000;
– and finally a payment order in the amount of EUR 5 000.
53 It should next be noted that the defence was 38 pages, while the rejoinder was 20 pages long.
54 In addition, an hourly rate of EUR 400 in respect of legal fees was considered appropriate in competition cases (see, to that effect, orders of 16 October 2017, NeXovation v Commission, T‑353/15 DEP, not published, EU:T:2017:737, paragraph 33, and of 20 September 2017, Frucona Košice v Commission, T‑11/07 DEP, not published, EU:T:2017:650, paragraph 40).
55 In the absence of any indication as to the hourly rate charged by the lawyer which the Commission has used, it must be considered that, in relation to the lump sum of EUR 10 000 claimed in the present case for the purpose of becoming aware of the contested decision and the case, the application, the contacts with the Commission’s Legal Service and the drafting of the defence, an hourly rate of EUR 400 corresponds to 25 working hours. Next, compared to the lump sum payment of EUR 5 000 claimed in the present case for becoming aware of the reply, the contacts with the Commission’s Legal Service and the drafting of the rejoinder, it corresponds to 12.5 hours of work.
56 In view of the work done by the external lawyer, the amounts paid by the Commission and claimed by the Commission appear to be justified and it must be considered that they constitute expenses necessarily incurred by the parties for the purpose of the proceedings.
57 The administrative costs incurred by the Commission’s legal service Agents and justified in the application are also expenses necessarily incurred by the parties for the purpose of the proceedings.
58 In the light of all the foregoing considerations, the total costs recoverable by the Commission can be assessed on an equitable basis at EUR 15 489, an amount that takes account of all the circumstances of the case up to the date on which the present order is made.
On those grounds,
THE GENERAL COURT (Third Chamber)
hereby orders:
The total amount of the costs to be reimbursed by Emesa-Trefilería and Industrias Galycas to the Commission is fixed at EUR 15 489.
Luxembourg, 25 October 2018.
E. Coulon | | S. Frimodt Nielsen |