ORDER OF THE GENERAL COURT (Fifth Chamber)
18 October 2017 (*)
(Article 165 of the Rules of Procedure — Failure to adjudicate — Intervention in support of the unsuccessful party — Costs associated with the intervention — Amendment of the form of order sought in the course of proceedings)
In Case T‑194/13 OST,
United Parcel Service, Inc., established in Atlanta, Georgia (United States), represented initially by A. Ryan, B. Graham, Solicitors, W. Knibbeler and P. Stamou, lawyers, and subsequently by A. Ryan, W. Knibbeler, P. Stamou, A. Pliego Selie, F. Hoseinian and P. van den Berg, lawyers,
applicant,
v
European Commission, represented initially by T. Christoforou, N. Khan, A. Biolan, N. von Lingen and H. Leupold, and subsequently by T. Christoforou, N. Khan, A. Biolan, and H. Leupold, acting as Agents,
defendant,
supported by
FedEx Corp., established in Memphis, Tennessee (United States), represented initially by F. Carlin, Barrister, G. Bushell, Solicitor, and Q. Azau, lawyer, then by F. Carlin, G. Bushell and N. Niejahr, lawyers,
intervener,
APPLICATION pursuant to Article 165 of the Rules of Procedure of the General Court
THE GENERAL COURT (Fifth Chamber),
composed of M. Prek, President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By application lodged at the Court Registry on 5 April 2013, United Parcel Services (‘UPS’) brought an action for annulment of Commission Decision C(2013) 431 of 30 January 2013 in which the Commission declared that the concentration notified by the applicant was incompatible with the internal market and the EEA Agreement (Case COMP/M.6570 — UPS/TNT Express) (‘the Commission’s decision’).
2 In the application UPS sought an order that the Commission be ordered to pay ‘the costs of the present proceedings, including those related to any intervener’.
3 By application lodged at the Court Registry on 17 June 2013, FedEx sought leave to intervene in the dispute in support of the form of order sought by the Commission.
4 In its observations on FedEx’s application to intervene, UPS claimed that, ‘should the Court grant FedEx leave to intervene, UPS reiterates its conclusions in the application with respect to the costs’.
5 By order of the President of the Fourth Chamber of the General Court of 21 October 2013, FedEx was granted leave to intervene in support of the form of order sought by the Commission (‘the General Court’s order’).
6 In its observations on FedEx’s application to intervene, UPS claimed that the Court should ‘order the Commission and FedEx to pay the costs’.
7 In its reply, UPS claimed that the Court should ‘order the Commission and any intervener to pay the costs of the present proceedings, in particular in view of the numerous unfounded admissibility pleas raised by the Commission’.
8 In its reply to the Court’s written questions of 26 February 2016, UPS claimed that the Court should ‘order the Commission and FedEx to pay the costs’.
9 At the hearing, UPS requested the Court to amend the Report for the Hearing in respect of its application for costs, stating that the costs should also be borne by the intervener, as was recorded in the minutes of the hearing.
10 By its judgment delivered on 7 March 2017 in United Parcel Service v Commission (T‑194/13, EU:T:2017:144), the Court annulled the Commission’s decision (‘the General Court’s judgment’).
11 The Court ordered, pursuant to Article 134 of the Rules of Procedure of the General Court, in paragraphs 223 of the grounds and also paragraphs 2 and 3 of the operative part of the judgment, first, the Commission to bear, in addition to its own costs, those of the applicant and, secondly, FedEx to bear its own costs.
Procedure and forms of order sought
12 By document lodged at the Court Registry on 24 March 2017, the Commission made an application, pursuant to Article 165 of the Rules of Procedure, pleading a failure to adjudicate vitiating the judgment of the General Court (‘the Commission’s application’).
13 In its application, the Commission contends that the Court should:
– ‘rectify’ the General Court’s judgment ‘by supplementing’ paragraphs 223 and the operative part of the judgement so as to order that FedEx should bear not only its own costs, but also those incurred by UPS in connection with FedEx’s intervention.
14 On 5 April 2017, the Commission’s application was served on UPS and FedEx and they were invited to submit to the Court their observations on that application.
15 On 18 April 2017, UPS and FedEx submitted their observations on the Commission’s application.
16 In its observations on the Commission’s application, UPS ‘confirm[ed] that FedEx’s intervention [had] entailed additional costs for UPS and defer[red] to the Court’s discretion in deciding on the Commission’s application’.
17 UPS also ‘note[ed] in this context that its plea for FedEx to pay, alongside the Commission, UPS’ costs has been reiterated throughout the proceedings and was recorded by the Court in the minutes of the oral hearing’.
18 In its observations on the Commission’s application, FedEx claims that the Court should:
– primarily, dismiss the Commission’s application;
– alternatively, ‘confirm the cost decision taken at paragraph 223 of the [General Court’s] judgment in light of UPS’ cost claim’.
Law
19 Article 165 of the Rules of Procedure, entitled ‘Failure to adjudicate’, provides:
‘1. If the General Court has failed to adjudicate on a specific head of claim or on costs, any party wishing to rely on that may apply to the General Court to supplement its decision.
2. The application shall be made within one month after delivery of the judgment or service of the order.
3. The application shall be served on the other parties, who may submit written observations within the time-limit prescribed by the President.
4. After giving the parties an opportunity to submit their observations, the General Court shall decide, by way of an order, both on the admissibility and on the substance of the application.’
Admissibility
20 In the present case, the Commission asks the Court, pursuant to Article 165, to ‘rectify’ its judgment by ordering FedEx to bear, in addition to its own costs, the costs of UPS relating to FedEx’s intervention.
21 The Commission’s application must be dismissed immediately in so far as it seeks rectification of the Court’s judgment, within the meaning of Article 164 of the Rules of Procedure, since the Commission does not request the Court to rectify clerical mistakes, errors in calculation and obvious inaccuracies, within the meaning of that provision.
22 Having regard to the citation, in the Commission’s application, of Article 165 of the Rules of Procedure and the content of that application, it must be found that the Commission, in its application, requests the Court to address an alleged failure to adjudicate, within the meaning of that provision, and that that application is admissible, which, moreover, neither UPS nor FedEx dispute.
23 Therefore, it must be ascertained whether, as the Commission contends, the Court’s judgment is vitiated by a failure to adjudicate, within the meaning of Article 165 of the Rules of Procedure and, if so, to rule afresh on the costs for the purpose of addressing that omission.
Substance
24 As a preliminary point, it should be noted that a failure to adjudicate results from an infringement by the Court of its obligation, in principle, to adjudicate on all the heads of claim before it and set out in the application or in later submissions made by the parties.
25 In the first place, by its judgment, the Court annulled the Commission’s decision.
26 In paragraph 154 of that judgment, the Court reproduced the claims of UPS set out in the application relating to the costs, as follows:
‘... the applicant claims that the Court should ... order the Commission to pay the costs’.
27 Pursuant to Article 134 of the Rules of Procedure of the General Court, the Court, in paragraphs 223 of the grounds and 2 and 3 of the operative part of its judgment, ordered, first, the Commission to bear, in addition to its own costs, those of the applicant and, secondly, FedEx to bear its own costs.
28 In the present case, UPS claimed that the Commission should be ordered to pay the costs, including those incurred by any interveners, and this expressly, both in the application and by reference to the application in its observations on FedEx’s application to intervene.
29 However, at the hearing UPS drew the Court’s attention to an error in the reproduction of its application for costs in the Report for the Hearing, as noted in the minutes of the hearing.
30 That error specifically concerned UPS’ application concerning the allocation of costs, as set out in its observations on FedEx’s application to intervene, to the effect that the costs were to be borne both by the Commission and FedEx.
31 Thus, in ordering, in paragraphs 223 of the grounds and paragraphs 2 and 3 of the operative part of its judgment, first, the Commission to bear, in addition to its own costs, those of the applicant and, secondly, FedEx to bear its own costs, the Court did not adjudicate on the costs of UPS relating to FedEx’s intervention.
32 Thus, the Court failed to adjudicate on the form of order sought by UPS in respect of costs and paragraph 223 of the Court’s judgment and paragraph 2 and 3 of its operative part must therefore be amended.
33 In that regard, it must be recalled, in the second place, that, pursuant to Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the General Court is to decide how the costs are to be shared.
34 In the present case, paragraph 223 of the General Court’s judgment and paragraphs 2 and 3 of its operative part must be amended, so that, firstly, the Commission is to be ordered to bear its own costs and those of the applicant, except for the costs in connection with the intervention, and, secondly, the intervener is to be ordered to bear, in addition to its own costs, the applicant’s costs in connection with its intervention.
Costs
35 Under Article 134(1) of the Rules of Procedure of the General Court, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. The parties not having applied for costs, UPS, the Commission and the intervener must be ordered to pay their own costs in the present case.
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. Paragraph 223 of the judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144 is amended as follows: ‘Under Article 134(1) of the Rules of Procedure, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings. Furthermore, under Article 134(2) of the Rules of Procedure, where there is more than one unsuccessful party the Court is to decide how the costs are to be shared. Since the Commission and the intervener have been unsuccessful, first, the Commission must be ordered to bear its own costs and to pay those incurred by the applicant, except the costs in connection with the intervention. Secondly, the intervener must be ordered to bear, in addition to its own costs, the applicant’s costs in connection with its intervention’.
2. Paragraph 2 of the operative part of the judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144 is amended as follows: ‘The European Commission shall pay, in addition to its own costs, those of United Parcel Service, Inc., except the costs in connection with the intervention’.
3. Paragraph 3 of the operative part of the judgment of 7 March 2017, United Parcel Service v Commission, T‑194/13, EU:T:2017:144 is amended as follows: ‘FedEx Corp. shall pay, in addition to its own costs, the costs of United Parcel Service, Inc., in connection with its intervention’.
4. United Parcel Service, Inc., the Commission and FedEx shall bear their own costs in connection with the present case.
Luxembourg, 18 October 2017.