ORDER OF THE GENERAL COURT (Seventh Chamber)
20 November 2012 (*)
(Procedure – Taxation of costs)
In Case T‑121/09 DEP,
Thamer Al Shanfari, residing in Qurum (Oman), represented by N. Sheikh, Solicitor,
applicant,
v
Council of the European Union, represented by M. Bishop and B. Driessen, acting as Agents,
and
European Commission, represented by T. Scharf and M. Konstantinidis, acting as Agents,
defendants,
APPLICATION for taxation of the costs to be reimbursed by the Council and the Commission to the applicant following the order for removal from the register made by the President of the Fifth Chamber of the General Court of 13 July 2010 in Case T‑121/09 Thamer Al Shanfari v Council of the European Union and European Commission, not published in the ECR,
THE GENERAL COURT (Seventh Chamber),
composed of A. Dittrich, President, I. Wiszniewska-Białecka and M. Prek (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 General Court on 27 March 2009, the applicant, Mr Al Shanfari, brought an action for annulment in part of Council Regulation (EC) No 314/2004 of 19 February 2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2004 L 55, p. 1), as amended by Commission Regulation (EC) No 77/2009 of 26 January 2009 (OJ 2009 L 23, p. 5), in so far as the applicant’s name was included in the list of persons to whom the freezing of funds and economic resources imposed by those provisions applied.
2 By order of 14 September 2009, the President of the Fifth Chamber of the General Court granted the United Kingdom of Great Britain and Northern Ireland leave to intervene in support of the form of order sought by the Council of the European Union and the Commission of the European Communities.
3 Subsequently, the adoption, first of Council Decision 2010/92/CFSP of 15 February 2010 extending restrictive measures against Zimbabwe (OJ 2010 L 41, p. 6) and, secondly, of Commission Regulation (EU) No 173/2010 of 25 February 2010 amending Council Regulation (EC) No 314/2004 concerning certain restrictive measures in respect of Zimbabwe (OJ 2010 L 51, p. 13) led to the removal of the applicant’s name from the list of persons subject to restrictive measures.
4 By letter lodged at the Registry of the General Court on 11 June 2010, the applicant informed the General Court, in accordance with Article 99 of the Rules of Procedure, that he was discontinuing his action.
5 By order of 13 July 2010 in Case T‑121/09 Thamer Al Shanfari v Council of the European Union and European Commission, not published in the ECR, the President of the Fifth Chamber of the General Court removed the case from the register of the General Court and ordered, on the basis of Article 87(4) and (5) of the Rules of Procedure, the Council and the Commission to bear their own costs and to pay those incurred by the applicant. The United Kingdom was ordered to bear its own costs.
6 By letter of 7 May 2011, the applicant requested from the Council and the Commission the repayment of the amount of 424 896.35 pounds sterling (GBP), that is to say EUR 488 630.80, in respect of the costs he had incurred in the proceedings before the General Court.
7 By letter of 10 May 2011, the Commission disputed that amount and proposed paying, jointly with the Council, the sum of EUR 36 949.50 in respect of recoverable costs.
8 By letters of 14 July and 15 September 2011, the applicant expressed his disagreement with the amount of costs proposed by the Commission and requested that it and the Council make a revised, higher offer.
9 By letter of 23 September 2011, the Commission, in agreement with the Council, maintained its position.
10 As there was no agreement between the parties on the amount of the recoverable costs, the applicant, by application lodged at the Registry of the General Court on 2 November 2011, submitted, pursuant to Article 92(1) of the Rules of Procedure, the present application for taxation of costs.
11 By two documents lodged at the Registry of the General Court on 16 and 20 December 2011 respectively, the Commission and the Council submitted their observations on that application.
12 The applicant claims that the General Court should order the Council and the Commission to pay to him, first, in respect of the costs incurred for the purpose of the proceedings before the General Court, the sum of GBP 424 896.35 (EUR 488 630.80), together with interest for late payment at the rate of 8% as from 13 July 2010, and, secondly, the costs incurred for the purpose of the present proceedings.
13 The Council and the Commission contend that the General Court should set the total amount of recoverable costs at a maximum of EUR 36 949.50 and EUR 36 950 respectively.
Law
14 Under Article 92(1) of the Rules of Procedure, ‘if 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.’
15 Under Article 91(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 regarded as recoverable costs. It follows from that provision that 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 in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785, paragraph 13 and the case-law cited).
16 According to settled case-law, the Courts of the European Union are 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 General 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).
17 It has also consistently been held that, in the absence of applicable European provisions laying down fee-scales, the General 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).
18 It is in the light of those factors that the General Court must assess the amount of the recoverable costs in the present case.
The financial interest which the applicant had in the proceedings
19 The applicant submits that the inclusion of his name on the list of persons affected by the freezing of funds had a considerable economic and financial effect on him and also had a serious adverse impact on his businesses. The Council and the Commission expressly acknowledge the economic importance of the case in the main proceedings for the applicant.
20 It is important to point out that, by the contested acts in the case in the main proceedings, the Council and the Commission imposed and maintained, as from February 2004, the freezing of all the applicant’s funds or economic resources, subject to certain limited exceptions, throughout the European Union. Likewise they prohibited funds or economic resources from being made available to the applicant. Although a freezing of funds measure is a temporary precautionary measure which, unlike confiscation, does not affect the very substance of the right of the person concerned to property in his financial assets but only the use thereof, it must be conceded that such a measure is liable to hinder considerably the business activities carried out by the applicant (see, to that effect, order of 15 January 2008 in Case T‑228/02 DEP Organisation des Modjahedines du peuple d’Iran v Council, not published in the ECR, paragraph 51 and the case-law cited).
21 In those circumstances, it must be held that the applicant had a very significant financial interest in the case in the main proceedings.
The purpose and nature of the proceedings, their significance from the point of view of European Union law and the difficulties presented by the case
22 The General Court points out that, although it is undeniable that cases relating to the freezing of funds raise political questions of some sensitivity, the case-law of the Court of Justice and of the General Court in that area is particularly rich and substantial. In that regard, contrary to what the applicant maintains, his lawyers had at their disposal numerous relevant items of case-law to effectively argue their view. More generally, the case was not particularly complex, either in law or in fact.
23 By contrast, contrary to what the Commission seems to suggest, the fact that the applicant discontinued the action before the hearing is not a factor which is capable of minimising the importance of the case and the legal and factual questions which it raised. It must be borne in mind that the applicant discontinued the action following the adoption by the Council, on 25 February 2010, of Regulation No 173/2010, which removed the applicant’s name from the list of persons subject to restrictive measures. The written procedure in the case in the main proceedings had already been completed more than three months before that date, which implies that, at the very least, the documents submitted by the applicant were submitted irrespective of any consideration relating to the possible removal of the case from the register.
The amount of work provided
24 As regards, in the first place, the number of hours of work to be taken into consideration, it is apparent from the application for taxation of costs that the main work was carried out by two solicitors who are senior partners in Neumans LLP, the firm of solicitors representing the applicant. Within the firm, those two partners were assisted by two associate solicitors and by three paralegals, but those different employees worked on the file for a much smaller proportion of the time than that which the two senior partners spent on it. Furthermore, three barristers who are not part of that firm, one of whom is a Queen’s Counsel, made their contribution to the work carried out in connection with the proceedings before the General Court.
25 In that regard, it must be borne in mind that, while in the present case it was permissible for the applicant to entrust the defence of his interests to a number of lawyers, the primary consideration of the Courts of the European Union is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (see, to that effect, order in Organisation des Modjahedines du peuple d’Iran v Council, paragraph 20 above, paragraph 59, and the case-law cited).
26 As regards, more specifically, the choice made by the applicant to use the joint services of solicitors and of barristers, it is apparent from the case-law that, where a party decides to be represented by both a solicitor and by a barrister, it does not follow that the fees due to each of them are not to be regarded as expenses necessarily incurred for the purpose of the proceedings, as provided for in Article 91(b) of the Rules of Procedure. 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 conduct 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 in Airtours v Commission, paragraph 15 above, paragraphs 43 and 44).
27 First, it is apparent from the various fee notes and from the time sheets annexed to the application for taxation of costs that the distribution of the work of preparing documents among five lawyers was bound to mean a considerable duplication of the work carried out which must be taken into account for the purpose of calculating the amount of recoverable costs (see, to that effect, order of 3 September 2010 in Case T‑455/05 DEP Componenta v Commission, not published in the ECR, paragraph 56 and the case-law cited). The applicant does not moreover rebut that finding, inasmuch as he does not put forward arguments tending to show that it was appropriate to share the work among the various lawyers.
28 Consequently, although the three barristers’ various fee notes do not indicate how many hours they spent on the case, those documents none the less provide a brief description of the services carried out for the applicant. It can be seen from a comparison of the number of hours spent by the firm of solicitors on the case in the main proceedings and those barristers’ fee notes that the work of the firm of solicitors largely coincided with the barristers’ work. By way of example, it is apparent from those documents that, in March 2009, the three barristers and the two senior partners all worked on the preparation of the application and of the applicant’s statement.
29 Secondly, it must be stated that the tasks carried out by the two ‘associate solicitors’ and the three paralegals who worked on the case within the firm Neumans LLP appear to be purely ancillary and do not seem to be objectively necessary for the purpose of the proceedings, which the applicant moreover appears to acknowledge in the present application by stating that they were entrusted with ‘tasks that did not require a partner’s input’.
30 Thirdly, the document headed ‘Description of Work Done’ and the time sheets submitted show that a significant number of hours were spent in coordinating the work of the applicant’s various lawyers, whether or not they belong to the firm Neumans LLP. According to settled case-law, the costs of coordination cannot be regarded as necessary costs to be taken into account in calculating the amount of recoverable costs (see order of 12 December 2008 in Case T‑417/05 DEP Endesa v Commission, not published in the ECR, paragraph 27).
31 Furthermore, the time sheets detailing the work of the lawyers in the firm Neumans LLP refer to numerous hours spent by the two senior partners at meetings and consultations with various bodies and specialists which have not, in the present application, sufficiently been shown to be necessary for the purpose of the handling of the file. Furthermore, even if those meetings and consultations could be regarded as objectively necessary for the purpose of the proceedings before the Court, they cannot be paid at the hourly rate sought (see, to that effect, order in Organisation des Modjahedines du peuple d’Iran v Council, paragraph 20 above, paragraph 69). The same is true of the communication with the applicant’s American lawyer, who is not acting as a representative in the proceedings before the Court, and the consideration of the documentation received from him.
32 Fourthly, according to the case-law, lawyers’ fees for periods during which no procedural documents were notified and those relating to periods subsequent to the proceedings before the Court must also be excluded since they are not necessary to the proceedings (see, to that effect, order in Case C‑104/89 DEP Mulder and Others v Council and Commission [2004] ECR I‑1, paragraphs 47 and 48).
33 Fifthly, in the present application, the applicant states that the number of hours of work spent on the case by the two senior partners amounts to 181 hours and 325 hours and 12 minutes respectively, whereas the working time accumulated by the other employees who worked on the case within the firm Neumans LLP amounts to 33 hours and 42 minutes. In total, the number of hours which the various members of the firm spent working on the case is around 539. To that figure must be added the hours of work carried out by the barristers who are not part of the firm for a total amount of GBP 86 300, but their fee notes do not provide details in respect of those hours.
34 It must be borne in mind that the ability of the Courts of the European Union to assess the value of work carried out is dependent on the accuracy of the information provided (order in Organisation des Modjahedines du peuple d’Iran v Council, paragraph 20 above, paragraph 67). Such an assessment is not possible on the basis of the various items of documentary evidence submitted, as they refer to costs which, in the light of the case-law referred to above, are not recoverable. Furthermore, those documents do not provide any calculation of the number of hours which the various lawyers spent on each stage of the case, namely the drafting of the application and the reply as well as of the withdrawal.
35 In any event, having regard to the purpose and nature of the proceedings, the volume of the files and the content of the procedural documents lodged by the applicant in the course of the written procedure, the Court considers that the number of hours stated by the applicant exceeds very significantly what can be regarded as necessary for the purpose of the proceedings before the Court.
36 In that regard, it must be stated that the present case is, in particular on a substantive level, similar to the two orders in respect of taxation of costs previously made by the Court on the freezing of funds, namely the order in Organisation des Modjahedines du peuple d’Iran v Council, paragraph 20 above, and the order in Case T‑47/03 DEP Sison v Council [2009] ECR II‑1483. While taking into account the differences between those cases and the present case, it seems appropriate however that they should serve as a framework of reference for the purpose of assessing the total number of hours of work which may be regarded as objectively necessary for the purpose of the proceedings before the Court.
37 In that regard, it must be pointed out that, although the case in the main proceedings was removed from the register before a hearing was held, the applicant’s withdrawal nevertheless entailed the drafting of observations in addition to the application initiating proceedings and the reply.
38 As regards, in the second place, the determination of an appropriate hourly rate, the hourly rate which the applicant seeks to have applied is between GBP 180 and 600 as regards the work carried out by the members of the firm Neumans LLP. The latter sum corresponds to the hourly rate invoiced by the two senior partners who spent the greatest number of hours working on the case. The hourly rate of the barristers is not specified.
39 The Commission proposes reimbursement based on an hourly rate of EUR 260, which the Council expressly accepts.
40 The Court considers that, in the present case, the hourly rates of the applicant’s lawyers in respect of which recovery is sought seem excessive and points out that, according to settled case-law, even a lower rate, of around EUR 250 or 300 per hour, can be regarded as appropriate only as remuneration for the services of a particularly experienced professional, who is capable of working very efficiently and rapidly. For remuneration at such a rate to be taken into account there must moreover in return be an assessment, which must be strict, of the total number of hours of work necessary for the purposes of the proceedings before the Court (see, to that effect, order in Organisation des Modjahedines du peuple d’Iran v Council, paragraph 20 above, paragraph 64 and the case-law cited).
41 In the light of all of the foregoing, it must be held, for the purpose of calculating the fees necessarily incurred by the applicant for the case in the main proceedings, that the case objectively required, in the course of the written procedure, 150 hours of work, the remuneration for which, at an hourly rate of EUR 250 which the Court considers to be appropriate in this case, must be assessed at EUR 37 500 (150 multiplied by 250).
42 As regards the administrative costs, the applicant requests the reimbursement of photocopying costs in the amount of GBP 946.79. He states that his two lawyers had to be provided with extensive documentation in order to be able to represent his interests fully and that the pleadings had to be served on three different parties. The Council and Commission dispute that sum as excessive.
43 The amount of administrative costs in respect of which reimbursement is sought appears to significantly exceed what is necessary. It must be borne in mind that photocopies other than those specifically required by the Court, communication costs between two lawyers representing the same party, case-law analysis and reading articles cannot be justified as expenses necessarily incurred (see, to that effect, order of 31 March 2011 in Joined Cases T‑5/02 DEP and T‑80/02 DEP Tetra Laval v Commission, not published in the ECR, paragraph 51). It is apparent from the file that the applicant sent a copy of the documents which he had lodged before the Court directly to the defendants even though that notification is as a matter of course effected by the Registry pursuant to the rules established by the Rules of Procedure.
44 Consequently, the Court will make an equitable assessment of the amount of the administrative costs by fixing it at EUR 300.
45 In the third place, since the Court, when determining the recoverable costs, has taken account of all the circumstances of the case until the time of such determination, it is not necessary to grant the application for interest on the sum allocated with effect from 13 July 2010.
46 In the fourth place, for the same reason, it is not necessary to give a separate decision on the costs incurred by the parties in connection with the present proceedings (see order in Case T‑84/91 DEP Meskens v Parliament [1993] ECR II‑757, paragraph 16).
47 It follows that the total amount of recoverable costs is EUR 37 800.
On those grounds,
THE GENERAL COURT (Seventh Chamber)
hereby orders:
The total amount of the costs to be reimbursed by the Council of the European Union and the European Commission to Mr Thamer Al Shanfari is fixed at the sum of EUR 37 800.
Luxembourg, 20 November 2012.