ORDER OF THE GENERAL COURT (Sixth Chamber)
8 October 2014 (*)
(Procedure – Taxation of costs)
In Case T‑244/08 DEP,
Coop Nord ekonomisk förening, formerly Konsum Nord ekonomisk förening, established in Umeå (Sweden), represented by U. Öberg, and I. Otken Eriksson, lawyers,
applicant,
v
European Commission, represented by C. Giolito and L. Parpala, acting as Agents,
defendant,
APPLICATION for taxation of costs to be reimbursed by the Commission to Coop Nord ekonomisk förening (formerly Konsum Nord ekonomisk förening) following the judgment of the General Court of 13 December 2011 in Konsum Nord v Commission (T‑244/08, EU:T:2011:732).
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen, President, F. Dehousse (Rapporteur) and A.M. Collins, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought by the parties
1 By application lodged at the Registry of the General Court on 23 June 2008, Konsum Nord ekonomisk förening, now Coop Nord ekonomisk förening, brought the action in Case T‑244/08, seeking the annulment of Commission Decision 2008/366/EC of 30 January 2008 on State aid C 35/06 (ex NN 37/06) implemented by Sweden for Konsum Jämtland ekonomisk förening (OJ 2008 L 126, p. 3).
2 By judgment of 13 December 2011 (Konsum Nord v Commission, EU:T:2011:732), the Court annulled the contested Commission Decision 2008/366/EC and ordered the European Commission to bear its own costs and pay those incurred by Konsum Jämtland ekonomisk förening.
3 By letter of 25 May 2012, the applicant requested the Commission to reimburse it by way of recoverable costs a total sum of SEK 1 311 432 excluding VAT. That overall sum consisted of lawyers’ fees relating to the preparatory analysis aimed at determining whether the decision should be challenged, fees relating to the deposit procedure for the sum allegedly constituting illegal State aid, fees relating to the proceedings before the General Court (review of the case file and written and oral pleadings), expenses incurred in relation to the hearing in Luxembourg and fees relating to the recovery of the deposited amount and to the proceedings relating to the taxation of costs.
4 By letter of 19 July 2012, the Commission informed the applicant that it considered that the amounts requested exceeded what could be deemed recoverable. By letter of 6 September 2012, the applicant repeated its request. The Commission once again rejected the request by letter of 18 October 2012. A telephone conference between the parties took place on 4 October 2012.
5 Since it had not reached an agreement with the Commission on the amount of the costs, the applicant, by document lodged at the Court Registry on 7 December 2012, requested the Court to fix, pursuant to Article 92(1) of the Rules of Procedure, the amount of the costs relating to the proceedings before the Court at SEK 1 304 490 and those pertaining to the application for taxation of costs at SEK 60 000. That request, lodged in English, was subject to a request for derogation from the rules governing languages, lodged on 6 June 2013 and granted on 5 August 2013.
6 By document lodged at the Court Registry on 21 January 2014, the Commission submitted its observations on that application. The Commission regards the amount of costs claimed by the applicant as excessive and requests the Court to fix that amount at half the costs ordered in the order in Componenta v Commission (T‑455/05 DEP, EU:T:2010:345), in which two proceedings were involved.
Law
7 Under Article 92(1) of the Rules of Procedure, ‘[i]f there is a dispute concerning the costs to be recovered, the General Court hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie.’
8 According to Article 91(b) of those rules, the following are to be regarded as recoverable costs: ‘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’. It is clear from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, secondly, to those which were necessary for that purpose (see order of 28 June 2004 in Airtours v Commission, T‑342/99 DEP, ECR, EU:T:2004:192, paragraph 13 and the case-law cited).
9 In addition, in the absence of Union 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 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, to that effect, orders in Airtours v Commission, EU:T:2004:192, cited in paragraph 8 above, paragraph 18, and of 3 September 2010 in Componenta v Commission, T‑455/05 DEP, EU:T:2010:345, paragraph 40).
10 It should also be recalled that the Court, in fixing the amount of recoverable costs, takes account of all the circumstances of the case up to the date of the delivery of the taxation of costs order (see orders in Airtours v Commission, EU:T:2004:192, cited in paragraph 8 above, paragraph 81, and of 28 November 2013 in Lagardère v Éditions Odile Jacob, C‑404/10 P‑DEP, EU:C:2013:808, paragraph 39).
The recoverability of the costs incurred by the applicant
11 In the first place, the applicant requests the taking into account, by way of recoverable costs, of fees relating to the preparatory analysis aimed at determining whether the decision should be challenged and submits an invoice of SEK 50 004 in that regard. It also claims recoverability of the sum of SEK 16 500 invoiced by way of fees relating to the deposit procedure for the sum alleged to be State aid.
12 However, those fees relate to the period before the action was brought on 23 June 2008. First, the fees relating to the preparatory analysis amounting to SEK 50 004, invoiced on 9 April 2008, sought to determine whether the decision should be challenged. They include the study of the contested decision, a client lunch, a request for access to the case file, a meeting and the work on the advice given regarding the challenge in question. Secondly, the fees amounting to SEK 16 500, invoiced on 30 May 2008 relating to the deposit procedure for the sum at issue, relate to the implementation of the contested decision.
13 Even if substantial legal work is, as a general rule, carried out before the judicial stage, ‘proceedings’ in Article 91(b) of the Rules of Procedure refers only to the proceedings before the General Court, to the exclusion of any prior stage. That follows in particular from Article 90 of those rules, which refers to the ‘[p]roceedings before the General Court’ (see orders in Componenta v Commission, EU:T:2010:345, cited in paragraph 9 above, paragraphs 42 and 43, and of 10 April 2014 in Éditions Odile Jacob v Commission, T‑279/04 DEP, EU:T:2014:233, paragraph 39).
14 Those fees cannot therefore be regarded as necessary for the purpose of the proceedings before the General Court. The fact that the contested decision was preceded by an administrative procedure in which the applicant did not participate does not change that finding.
15 In the second place, the applicant states that it concluded a fee charging arrangement, without which the action would not have been brought and which therefore reflects, in its view, the recoverable costs. That agreement provided for remuneration of SEK 300 000 and, in the event that the action was successful, the payment of fees covering the total amount of the actual costs incurred, amounting to SEK 877 008.33 in the present instance.
16 In that regard, it should be recalled that the Court is 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. In ruling on the application for taxation of costs, the Court is not obliged to take account of any agreement concluded in that regard between the party concerned and his agents or advisers (see, to that effect, orders in Airtours v Commission, EU:T:2004:192, cited in paragraph 8 above, paragraph 17, and of 1 October 2013 in Elf Aquitaine v Commission, C‑521/09 P‑DEP, ECR, EU:C:2013:644, paragraph 15).
17 Accordingly, notwithstanding the amounts stipulated in the fee charging arrangement relied on by the applicant, it is in the light of the above-mentioned criteria (paragraphs 8 to 10 above) that the amount of the recoverable costs should be assessed.
18 In the third place, the applicant refers in its application to costs relating to the analysis of the General Court’s judgment and those relating to the action brought for the purpose of having the deposited amount repaid. It maintains that they were expenses necessarily incurred in enforcing the Court’s judgment in accordance with Article 89 of the Rules of Procedure of the General Court.
19 However, it should be recalled that recovery must be refused for costs pertaining to the period subsequent to the oral procedure if no procedural document was adopted after the hearing. In that regard, the time spent considering the Court’s judgment and discussing it with the client are not regarded as expenses necessarily incurred for the purpose of the proceedings (see order of 10 April 2014 in Éditions Odile Jacob v Commission, EU:T:2014:233, cited in paragraph 13 above, paragraph 39 and the case-law cited). The same applies to the costs relating to the reimbursement procedure for the deposited amount, which cannot be regarded as expenses necessarily incurred for the purpose of the proceedings before the General Court (see, to that effect, judgment of 16 June 2011 in Solvay v Commission, T‑186/06, ECR, EU:T:2011:276, paragraph 444). That finding is not invalidated by the argument relating to Article 89 of the Rules of Procedure. That provision concerns expenses relating to enforcement proceedings, which did not take place in the present case. Article 89 of the Rules of Procedure is therefore not applicable in this instance.
20 Accordingly, those fees do not constitute recoverable costs.
The amount of the recoverable costs
21 First, as regards the purpose and nature of the proceedings, the main proceedings involved the annulment of the Commission decision that had considered that the sale by the Municipality of Åre to the applicant of the land at issue constituted State aid within the meaning of Article 87(1) EC. Therefore, even though the case may have been of some significance in Sweden, the judgment was delivered by a composition of three judges and constitutes a sui generis decision reached in the light of the specific facts at hand. While the dispute in the main proceedings may have contributed to setting out some of the implications of the rules concerning State aid on the sale of public property to private actors, it must however be seen as being of only relative importance.
22 Secondly, with regard to the significance of the dispute from the point of view of European Union law on State aid, it must be stated that the dispute in the main proceedings involved the issue of the sale price of land in accordance with the law on State aid and did not therefore raise new issues. Moreover, taking existing case-law as a basis, in the present case the Court ruled, primarily, in the light of the specific facts handoff the case and in particular in the light of the context of the various land transactions at issue. However, the dispute has served as a reminder of the significance of those background details in ascertaining whether or not there has been State aid and of the necessity of their being taken into account in applying the market economy investor principle, including in cases involving an offer by a third party for the land at issue.
23 Thirdly, taking into account the modest amount of the State aid at issue (SEK 4.6 million), while the applicant, whose annual turnover is approximately SEK 260 million, clearly had an economic interest in the annulment of the contested decision, that economic interest cannot however be described as out of the ordinary.
24 Fourthly, with regard to the difficulties of the case and the amount of work generated by the main proceedings for the applicants’ lawyers, it must be recalled that it is primarily for the court to consider the total number of hours of work that may appear objectively necessary for the purpose of the proceedings before the General Court, irrespective of the number of lawyers who may have provided the services in question. In that regard, the ability of the Court to assess the value of work carried out is dependent on the accuracy of the information provided (see order in Airtours v Commission, EU:T:2004:192, cited in paragraph 8 above, paragraph 30).
25 In the present case, in addition to the first plea alleging infringement of Article 87(1) EC, consisting of five parts, on which the judgment in the main action gave a ruling, the application contained three other pleas, alleging infringement of Communication 97/C 209/3 on State aid elements in sales of land and buildings by public authorities (OJ 1997 C 209, p. 3), breach of the Commission’s duty of inquiry, as well as the plea that the alleged State aid neither distorted competition nor affected trade between the Member States. In that regard, it must be stated that certain issues could be regarded as having a degree of complexity, in particular as regards the establishing of the market price of the land at issue and the relative importance of a third party’s offer compared to expert valuations. Moreover, the factual aspects of the case warranted the inclusion of a relatively large number of annexes (194 pages of annexes).
26 The applicant has produced, in addition to the invoice for the fixed amount of SEK 300 000, an invoice for SEK 877 883.34 together with a detailed statement, containing the names of the advisers concerned, their hourly rates, the date, description of the work undertaken, the time spent and the total of the sums invoiced.
27 It appears that, from April 2008 on, four advisers became involved in the case. The involvement of one adviser was based on an hourly rate of SEK 2 250 for a total of SEK 18 525. Two other advisers, present at the hearing, have charged amounts totalling approximately SEK 468 416 and SEK 401 790 respectively, based on an hourly rate of SEK 3 500. Lastly, one adviser has charged an amount of approximately SEK 9 266, based on an hourly rate of SEK 800.
28 It must be held that the amounts in question, relating to periods subsequent to the hearing of 7 June 2011, cannot be regarded as necessary for the purpose of the proceedings before the General Court and therefore must be excluded from the recoverable costs (see, to that effect, order of 4 July 2013 in Kronofrance v Germany and Others, C‑75/05 P‑DEP, EU:C:2013:458, paragraph 44). However, most of the fees charged relate to the drafting of the written submissions and preparation for the hearing.
29 Furthermore, it must be considered that the level of complexity of the dispute was not such as to justify the involvement of four advisers and the feeing of 266 hours of work at the hourly rates indicated. In addition, given the nature and complexity of the case, the participation of a second adviser in the hearing cannot be regarded as necessary for the purpose of the applicant’s representation.
30 Accordingly, the costs as they appear on the detailed statement and the applicant’s explanations do not enable the cost representing the totality of the hours of work reported – which, moreover, is intended to be added to the fixed amount of SEK 300 000 – to be regarded as objectively necessary for the purpose of the proceedings before the General Court.
31 Having regard to the foregoing and in view of the fact that the complexity of the dispute was no more than relative, it is appropriate to fix, in this instance, the amount of lawyers’ fees recoverable at SEK 450 000.
32 Fifthly, as regards the costs relating to administrative, travel and subsistence expenses, the applicant has produced an invoice of 29 June 2011 for a total amount of SEK 32 126.50 excluding VAT, together with a detailed statement mentioning inter alia aeroplane ticket expenses for two persons and hotel expenses for four persons, as well as taxi fares and the courier costs for submitting the application.
33 The Court notes that only the invoices corresponding to the aeroplane ticket and hotel expenses for two advisers are produced in the case file. Moreover, the Court considers that the present case did not give rise to any specific circumstances enabling the expenses incurred in respect of two advisers, for the purpose of their participation in the hearing, to be regarded as necessary within the meaning of Article 91(b) of the Rules of Procedure. The fact that the applicant saw fit to divide the work necessary for its representation between two legal advisers therefore cannot be financially attributed to the opposing party (see, to that effect, orders in Componenta v Commission, EU:T:2010:345, cited in paragraph 9 above, paragraph 61, and of 13 June 2007 in Danske Busvognmænd v Commission, T‑157/01 DEP, EU:T:2007:175, paragraph 48).
34 It is therefore appropriate to accept only the expenses incurred for a single lawyer and to fix them, in the form of a flat-rate sum, at SEK 16 000.
35 Sixthly, the applicant claims SEK 60 000 in respect of the application for taxation of costs.
36 It should be recalled that such costs may only be regarded as objectively necessary in so far as the application for taxation at issue is ultimately found to be justified (see orders of 6 May 2008 in Freistaat Thüringen v Commission, T‑318/00 DEP, EU:T:2008:140, paragraph 51, and of 16 November 2011 in Group Lottuss v OHIM, T‑161/07 DEP, EU:T:2011:676, paragraph 34). Such is the case in the matter at hand, given that the present application for taxation comes after numerous exchanges between the parties in the main proceedings and is, in part, well founded.
37 However, the applicant has provided in that regard an invoice of SEK 28 525 to the Commission, together with a statement that records only 6.09 hours of work in respect of two advisers, at an hourly rate of SEK 3 500, relating to those proceedings for taxation of costs.
38 In view of the facts of the case at hand, it is appropriate to fix the costs pertaining to the present proceedings for taxation at the sum of SEK 14 000.
39 In the light of all the foregoing considerations, the whole of the costs recoverable by the applicant will be fairly assessed by taxing their amount at SEK 480 000, which takes account of all the circumstances of the case up to the date of this order.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
The total amount of the costs to be reimbursed by the Commission is fixed at SEK 480 000.
Luxembourg, 8 October 2014.
E. Coulon | | S. Frimodt Nielsen |