ORDER OF THE GENERAL COURT (Second Chamber)
17 August 2020 (*)
(Procedure — Taxation of costs)
In Case T‑194/13 DEP,
United Parcel Service, Inc., established in Atlanta, Georgia (United States), represented by A. Ryan, Solicitor, and W. Knibbeler, lawyer,
applicant,
v
European Commission, represented by N. Khan, acting as Agent,
defendant,
supported by
FedEx Corp., established in Memphis, Tennessee (United States), represented by F. Carlin, Barrister, G. Bushell, Solicitor, and N. Niejahr, lawyer,
intervener,
APPLICATION for taxation of costs to be reimbursed by the Commission to United Parcel Service, Inc., following the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144),
THE GENERAL COURT (Second Chamber),
composed of V. Tomljenović (Rapporteur), President, F. Schalin and P. Škvařilová-Pelzl, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 United Parcel Service, Inc. (‘UPS’ or ‘the applicant’) and TNT Express NV (‘TNT’) operate on a global level in the specialist transport and logistics services sector.
2 On 15 June 2012, UPS notified the European Commission of its proposed acquisition of TNT (‘the merger’) under Article 4 of Council Regulation (EC) No 139/2004 of 20 January 2004 on the control of concentrations between undertakings (OJ 2004 L 24, p. 1; ‘the Merger Regulation’), as implemented by Commission Regulation (EC) No 802/2004 of 7 April 2004 implementing Regulation No 139/2004 (OJ 2004 L 133, p. 1).
3 By the merger, UPS envisaged obtaining control over the whole of TNT, within the meaning of Article 3(1)(b) of the Merger Regulation, through a takeover bid under Netherlands law.
4 By Decision C(2013) 431 of 30 January 2013, the Commission declared that the notified merger was incompatible with the internal market and with the Agreement on the European Economic Area (EEA) (Case COMP/M.6570 — UPS/TNT Express) (‘the contested decision’).
5 By application lodged at the Registry of the General Court on 5 April 2013, registered under number T‑194/13, UPS brought an action for annulment of the contested decision.
6 By document lodged at the Court Registry on 17 June 2013, FedEx Corp. (‘FedEx’ or ‘the intervener’) sought leave to intervene in support of the form of order sought by the Commission. 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.
7 By judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144), the Court annulled the contested decision and, as regards the costs, ordered the Commission to bear its own costs and to pay those incurred by UPS. FedEx was ordered to bear its own costs.
8 By order of 18 October 2017, United Parcel Service v Commission (T‑194/13 OST, not published, EU:T:2017:742), in proceedings relating to a failure to adjudicate, the Court amended the paragraphs of its judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144) relating to the recovery of costs. In particular, it ordered the Commission to bear its own costs and to pay the costs incurred by UPS in the main proceedings, except the costs in connection with the intervention, and ordered FedEx to bear, in addition to its own costs, those incurred by UPS in connection with the intervention.
9 By application lodged at the Registry of the Court of Justice on 16 May 2017, the Commission brought an appeal against the judgment of the General Court of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144). By its judgment of 16 January 2019, Commission v UPS (C‑265/17 P, EU:C:2019:23), the Court of Justice dismissed the appeal and ordered the Commission to pay the costs.
10 By letter of 26 March 2019, UPS inter alia sought recovery of the costs relating to the main proceedings in Case T‑194/13 from the Commission, in the amount of EUR 1 175 284.41.
11 By letter of 24 April 2019, the Commission asked UPS for further details regarding the calculation of the costs claimed. The Commission also contended that those costs were excessive and asked UPS to reassess them.
12 In its reply of 10 July 2019, UPS provided new details of the method for calculating the costs claimed and explained why those costs had been incurred for the purposes of the main proceedings.
13 By letter of 18 September 2019, the Commission again refused to pay the costs and requested yet more details concerning their calculation.
14 On 5 November 2019, UPS provided further details of the calculation of the costs, while maintaining all of its claims. It also stated its intention to bring proceedings before the Court should no agreement be reached on the recovery of costs.
15 On 2 December 2019, the Commission stated its definitive refusal to pay the costs claimed by UPS.
Procedure and forms of order sought
16 By document lodged at the Court Registry on 9 January 2020, UPS submitted the present application for taxation of costs pursuant to Article 170(5) of the Rules of Procedure of the General Court.
17 UPS claims that the Court should fix the amount of costs recoverable from the Commission in respect of the proceedings that gave rise to the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144) at EUR 1 175 284.41.
18 In the annex to its application, UPS provides detailed overviews of the time spent by its legal and economic advisers, split according to the stages of the proceedings and the hourly rates applied and setting out a brief description of the work carried out.
19 On the same day, UPS lodged an application for taxation of costs with the Court Registry, registered as Case T‑194/13 DEP II, by which it requested the Court to fix the amount of costs recoverable from FedEx in connection with the intervention at EUR 372 108.74.
20 On 9 April 2020, the Commission submitted its observations on the present application for taxation of costs. It contends, principally, that the Court should fix the amount of costs recoverable from it at EUR 37 500. In the alternative, the Commission requests the Court to fix that amount at EUR 182 500.
Law
21 Under Article 170(1) to (3) of the Rules of Procedure, 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 its observations.
22 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 regarded as recoverable costs.
23 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, secondly, to those which were necessary for that purpose (orders of 24 January 2002, Groupe Origny v Commission, T‑38/95 DEP, EU:T:2002:13, paragraph 28, and 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).
24 In its application for taxation of costs, UPS submits that the costs relating to the main proceedings before the Court in Case T‑194/13, which it seeks to recover from the Commission, amount to EUR 1 175 284.41.
25 Those costs are broken down as follows:
– EUR 895 515.52 in respect of lawyers’ fees, corresponding to 1 878.1 hours of work, calculated on the basis of various hourly rates of between EUR 220 and EUR 775, depending on the lawyers concerned;
– EUR 219 476.59 in respect of economists’ fees, corresponding, for one firm of economists, to 206.25 hours of work and, for a second firm, to 167 hours of work; and
– EUR 60 292.30 in respect of lawyers’ disbursements, including travel, copying and communication expenses.
26 In its observations, the Commission contends, first, that it has not been sufficiently substantiated by UPS that the costs claimed are genuine and recoverable and, second, that the costs are excessive.
27 As regards, first of all, lawyers’ fees, it thus requests the Court to fix, principally, the amount of recoverable costs at EUR 25 000, in so far as that amount corresponds solely to the costs incurred by UPS for the purposes of preparing the first plea, the merits of which led to the Court annulling the contested decision, and, in the alternative, to fix them at EUR 165 000, should the Court find that the costs incurred in respect of the work relating to all the pleas in the action are recoverable.
28 Next, with regard to economists’ fees, the Commission requests the Court to fix only those of one of the two firms of economists involved at EUR 12 500, corresponding to 50 hours of work at an hourly rate of EUR 250. Lastly, in respect of lawyers’ disbursements, the Commission objects to their reimbursement on the ground that they are not substantiated and, if that objection is not accepted, requests the Court to grant UPS at most a lump sum of EUR 5 000.
Lawyers’ fees
29 With regard to lawyers’ fees, it should be observed that, 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 which may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, those courts do not have to take into consideration a national scale fixing lawyers’ fees or any agreement concluded in that respect between the party concerned and its agents or advisers (see order of 17 March 2016, Norma Lebensmittelfilialbetrieb v OHIM, T‑229/14 DEP, not published, EU:T:2016:177, paragraph 10 and the case-law cited).
30 It is also settled case-law that, in the absence of provisions of EU law laying down fee scales, 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 orders of 31 January 2012, Commission v Kallianos, C‑323/06 P-DEP, not published, EU:C:2012:49, paragraph 13, and of 29 November 2016, Brune v Commission, T‑513/16 DEP, not published, EU:T:2016:709, paragraph 29 and the case-law cited).
31 It is in the light of those considerations that the Court must assess, in the present case, the amount of the costs recoverable in respect of lawyers’ fees.
32 In the present case, UPS sought reimbursement of the fees of a team of 25 professionals in a law firm comprising partners, senior lawyers, junior lawyers and trainees for their work carried out from 1 February 2013 to 7 March 2017.
33 In support of its application, UPS submitted a breakdown indicating the number of hours spent by each member of the team over four specific periods during the proceedings before the Court, together with a brief description of the tasks performed.
34 That breakdown can be summarised as follows:
– from February to April 2013, in total 872.7 hours of work were spent on drafting the application initiating proceedings;
– from July to September 2013, in total 306.7 hours of work were spent on drafting the reply;
– from January 2014 to November 2015, in total 58 hours of work were spent on examining the rejoinder and answering the questions put by the Court prior to the hearing;
– from December 2015 to March 2017, in total 640.7 hours of work were spent, during the oral part of the procedure, on drafting observations on the documents that could be consulted at the Registry of the General Court, on preparing for the hearing and drafting observations on the documents sent by the Commission to the Court following a measure of organisation of procedure after the hearing.
35 In the light of the foregoing, it is necessary to examine whether, bearing in mind the subject matter and nature of the proceedings, their significance from the point of view of EU law, the complexity of and difficulties presented by the case, the financial interests which the parties had in the proceedings and the amount of work carried out, the assessment of the costs that UPS seeks to recover in respect of lawyers’ fees is justified.
36 In the first place, as regards the nature and subject matter of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case, it should be noted that the action concerned the application of Article 4 of the Merger Regulation.
37 More specifically, the action sought annulment of a Commission decision, adopted following an in-depth examination procedure, declaring the merger to be incompatible with the internal market and the EEA Agreement.
38 Apart from the difficulties inherent in merger control, which requires a prospective analysis of the reference market, the contested decision was unusual in that, by that decision, the Commission prohibited the merger proposed by UPS on the ground that it would create a significant impediment to effective competition in several Member States.
39 Furthermore, the Commission’s assessment was based on an econometric model designed to anticipate the effects of the merger on prices on the various national markets. That model was challenged by UPS, on account, in particular, of the Commission’s failure to disclose the final version of that model, which it had relied on in the contested decision.
40 The action was therefore of a complex nature, especially since it related to important questions of principle for EU law, in particular as regards the burden of proof on the Commission where it relies on econometric models in order to oppose a merger.
41 In the second place, the case involved significant financial interests for UPS. First, the value of the merger was, at the time, estimated at EUR 5.2 billion. Second, because of the Commission’s refusal to allow the implementation of the proposed merger, UPS was exposed to the risk that a competitor would acquire the target company.
42 As regards, in the third place, the amount of work generated by the main proceedings for the applicant’s advisers, it must be borne in mind, first, that, according to settled case-law, although it is open to the applicant to entrust the protection of its interests to several advisers at the same time, so as to obtain the services of more experienced lawyers while entrusting the more time-consuming work to lawyers charging lower fees, the primary consideration of which the Court must take account 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 (orders 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 44; of 29 October 2004, Schneider Electric v Commission, T‑77/02 DEP, not published, EU:T:2004:321, paragraph 58; and of 29 March 2007, First Data and Others v Commission, T‑28/02 DEP, not published, EU:T:2007:101, paragraph 29).
43 Secondly, 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 of 29 October 2004, Schneider Electric v Commission, T‑77/02 DEP, not published, EU:T:2004:321, paragraph 59).
44 As regards, first of all, the drafting of the application, UPS refers to 872.7 hours of work, of which 115.5 hours involved 3 partners, 515.8 hours involved 7 experienced lawyers, and 241.4 hours involved 10 junior lawyers and trainees, which corresponds, in essence, to more than 109 individual working days of 8 hours.
45 The application of around 50 pages included 40 annexes, 38 of which were documents from the administrative phase. Only Annexes A.6 and A.40 were documents drawn up subsequently, it being clarified that, unlike Annex A.6, which includes a study carried out by a firm of economists on the basis of the contested decision, Annex A.40 summarises information exchanged during the administrative phase.
46 Admittedly, the contested decision was of considerable length, in that it comprised almost 450 pages. Moreover, it was based on a complex econometric model for verifying the impact of the merger on prices, a model of which UPS had not been aware before the contested decision was adopted. A detailed study of that decision and of the underlying reasoning of the Commission was therefore essential.
47 Furthermore, in the same way as for the first plea, relating to the impact of the merger on prices, it cannot be disputed that the drafting of the second, third, fourth and fifth pleas of the action, which related, in essence, to equally essential points of the contested decision, such as FedEx’s future competitive position, the analysis of the closeness of competition, the analysis of countervailing buyer power and the existence of efficiency gains, also required sustained work by UPS’ advisers, in the light of the clear complexity of the issues addressed.
48 Contrary to what the Commission contends in its observations, account must be taken of the costs incurred by the applicant’s legal advisers for the purpose of drafting all the pleas of the action. Whether or not the costs incurred by lawyers in drafting the application are recoverable does not depend on whether they relate to pleas in law that have been upheld by the Court but whether they meet the criteria set out in paragraph 30 above. In the light of those criteria, the work provided by UPS’ advisers in drafting the second to fifth pleas of the action, which called into question the lawfulness of the contested decision on points other than those addressed under the first plea of the action, was, a priori, just as important as the work carried out in drafting the latter plea.
49 The fact remains, first, that, apart from the central question relating to the econometric model seeking to verify the impact of the merger on prices, the contested decision concerned issues that had already been the subject of significant debate between UPS and the Commission following the statement of objections and throughout the administrative procedure, namely from 15 June 2012 to 30 January 2013, so that the content of the contested decision was not entirely unfamiliar to UPS’ lawyers.
50 The latter had in-depth knowledge of the dispute after representing UPS in the administrative procedure. Their work has thus been facilitated, and the time spent drawing up the application reduced (see, to that effect, order of 9 September 2015, Smurfit Kappa Group v Commission, T‑304/08 DEP, not published, EU:T:2015:707, paragraph 79 and the case-law cited).
51 Secondly, although UPS indicates several times in its application for taxation of costs that the contested decision included, in addition to a new econometric model designed to assess the impact of the merger on prices, other new evidence and information not disclosed prior to the adoption of that decision, it must be stated that UPS does not substantiate that assertion in any way. Since it lacks sufficient detail, that assertion cannot serve to provide full justification for the amount of work carried out by UPS’ advisers.
52 Thirdly, contrary to UPS’ claims, the adoption by the Court of various measures of organisation of procedure or the exchange of argument at the hearing cannot, as a matter of principle, demonstrate that the amount of work claimed for drafting the application was necessary, especially since, as regards the measures of organisation of procedure relating to FedEx’s expansion plans, those measures were adopted in response to a request made by UPS following the lodging of the reply.
53 Fourthly, it is true that the application contains procedural pleas that were not subject to debate in the administrative procedure. However, those pleas are confined, other than to specific deficiencies in the statement of reasons, to the failure to disclose, before the adoption of the contested decision, the econometric model for verifying the impact of the merger on prices and to the refusal to grant access to certain items of exculpatory evidence. The formulation of such pleas, the complexity of which is relative to the other points of law raised in the application, cannot justify the amount of work claimed either.
54 Fifthly, nor can the fact that the request for an expedited procedure was lodged at the Court Registry on the same day as the application justify the amount of work carried out by UPS’ advisers.
55 Regardless of the fact that the breakdown submitted by UPS does not make it possible to identify with sufficient precision the number of hours spent on drafting and finalising the request for an expedited procedure, hours which were, for three of the four lawyers, also spent carrying out other tasks, one of the junior lawyers claims to have needed 18.4 actual hours of work for the purposes of drafting that request, an amount of time which, in itself, does not appear entirely necessary for a straightforward four-page document.
56 Sixthly, UPS provides no justification in its application for taxation of costs for the 162.7 hours billed by one of its junior lawyers for drawing up and formatting the annexes to the application and for rereading the application, which corresponds, in essence, to more than 20 individual working days of eight hours.
57 Without any details being given in the application for taxation of costs or in the summary table detailing the tasks carried out, it must be stated that such a number of hours appears clearly excessive, especially since, as the Commission points out, most of the annexes to the application were documents already submitted in the administrative procedure. Likewise, only Annex A.6 was genuinely a document drawn up after the contested decision and prior to the lodging of the application. However, the document submitted was not the work of UPS or the law firm which represented it, but a firm of economists, as is apparent, moreover, from the table in the annex to the application for taxation of costs, which sets out, for that firm, a total of 54.25 hours of work at the stage of drawing up the application.
58 Accordingly, the amount of work claimed by UPS for the purposes of drawing up the application is, in the present case, excessive.
59 Next, UPS states that drafting the 26-page reply required 306.7 hours of work, involving a partner, four experienced lawyers and four junior lawyers or trainees, which corresponds, in essence, to more than 38 individual working days of eight hours.
60 The reply also contained six annexes, all of which concerned exchanges between UPS, FedEx and the Commission during the administrative procedure.
61 In that regard, it should be noted at the outset that, in its application for taxation of costs and in respect of drawing up the reply, UPS does not provide any details other than those set out in the summary table of tasks performed, which is annexed to its application.
62 It follows from the summary table that, in drawing up the reply, three of the experienced lawyers confined themselves to working on the second, third and fourth pleas, respectively, while the fourth experienced lawyer and the partner worked on all five pleas and reread the whole document.
63 Such a division of work necessarily entails a duplication of effort in drafting the reply, and the amount of work required must therefore be put into perspective. That duplication is obvious between the fourth experienced lawyer and the partner, who, in essence, carried out identical tasks, one for 83.5 hours and the other for 69.5 hours.
64 Moreover, although UPS states in its application for taxation of costs that the Commission’s pleadings, without distinguishing between the defence and the rejoinder, raised new questions, in particular concerning the closeness of competition within the relevant market, it must be noted that UPS in no way supports that assertion.
65 Accordingly, in the light of the foregoing and bearing in mind the incompleteness of UPS’ present application, the amount of work carried out for the purpose of drawing up the reply must be regarded as excessive.
66 Next, UPS refers to 58 hours of work between the end of the written procedure and the hearing, which involved two partners, two experienced lawyers and a junior lawyer or trainee. Those hours of work were necessary for the purposes, in particular, of examining the Commission’s rejoinder, of further examining the facts, of drafting answers to the questions put by the Court by way of measures of organisation of procedure and, in general, of managing the case.
67 In that regard, the questions put to UPS by the Court before the hearing were intended to clarify the scope and wording of certain pleas in the application. According to UPS, the answer to those questions required the involvement of two experienced lawyers for a maximum of 13 hours of work, which does not appear to be manifestly disproportionate, especially since, at the same time, additional exchanges took place in order to rule out any issues in respect of confidentiality before the Court.
68 By contrast, the analysis of the rejoinder required almost 53 hours of work. Even if, as UPS maintains, the rejoinder dealt with new points, in particular as regards the closeness of competition and the country-by-country analysis, such a period corresponding to more than six individual working days of eight hours appears, in itself, excessive. Furthermore, that period cannot be artificially isolated from the period spent on preparation for the hearing, which necessarily involves a thorough examination of the rejoinder.
69 Therefore, the amount of work required during the phase prior to the hearing does not, in the light of the information provided by UPS in its application, justify 58 hours of work.
70 Lastly, according to UPS, the oral part of the procedure required 640.7 hours of work, in which 11 lawyers, including partners, experienced lawyers and junior lawyers, were involved, which corresponds, in essence, to more than two and a half months of work, based on individual days of eight hours.
71 The hours of work billed correspond, according to UPS, to consulting the documents produced by the Commission following the Court’s adoption of a measure of inquiry and made available at the Registry before the hearing, to drafting observations and to examining the Commission’s observations. They also correspond to preparing for the hearing, to exchanging with economists and, for one of the lawyers concerned, to examining the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144).
72 However, it must be noted that, in the light of the explanations submitted by UPS, the latter has failed to demonstrate that the various tasks allegedly undertaken by its advisers for the purposes of the oral part of the procedure required 640.7 hours of work on the part of those advisers.
73 It must be stated at the outset that receiving and examining the judgment of 7 March 2017, United Parcel Service v Commission (T‑194/13, EU:T:2017:144) cannot be regarded as having been carried out for the purposes of the proceedings, with the result that the 8.8 hours of work invoiced for that purpose cannot have generated recoverable costs.
74 In addition, according to the minutes of the hearing of 6 April 2016, it began at 10.08 and ended at 17.27, with a break between 12.30 and 14.00, that is to say almost six hours of hearing, which is minimal in relation to the 640.7 hours of work carried out by UPS’ advisers during the oral part of the procedure.
75 Moreover, the amount of work claimed cannot be explained by the consultation at the Registry of the documents produced following the Court’s adoption of a measure of inquiry or the drafting of a dozen pages of observations and the examination of the Commission’s three pages of observations.
76 The same is true of the preparation for the hearing, as detailed and diligent as it may have been. The time spent preparing for the hearing is close to the time spent drawing up the application, which cannot reasonably be justified, in so far as, at the end of the written procedure, it was established that UPS’ advisers were familiar with the case file.
77 Therefore, the amount of work claimed by UPS in connection with the oral part of the procedure appears excessive.
78 In the fourth place, as regards the hourly rates applied by UPS’ advisers, it is apparent from the case-law that high lawyers’ fees may be appropriate only to remunerate the services of a particularly experienced professional, capable of working quickly and effectively (order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 52).
79 In the present case, the hourly rates applied by the applicant’s lawyers vary between EUR 220 per hour, for the least experienced lawyers, and EUR 775 per hour for a partner. In the light of the hourly rates of the 25 lawyers involved, UPS submits an average hourly rate of EUR 477.
80 First, while, in the case of a team of 25 lawyers, it is appropriate to take an average hourly rate into account, an average rate of EUR 477 is, in the present case, excessive. On the one hand, hourly rates of EUR 775 or close to EUR 700 charged individually by some of UPS’ lawyers cannot be considered, in respect of recoverable costs, to be objectively necessary for the purposes of the proceedings before the Court, even in order to remunerate the services of a particularly experienced professional. On the other hand, an average rate of EUR 477 cannot justify the remuneration for the services provided by UPS’ least experienced lawyers. It should therefore be fixed at EUR 400, a rate which has been deemed appropriate for competition cases (see, to that effect, order of 25 October 2018, Socitrel and Companhia Previdente v Commission, T‑413/10 DEP, T‑414/10 DEP and T‑409/13 DEP, not published, EU:T:2018:751, paragraph 99).
81 Secondly, it cannot be ruled out, in the absence of very precise information on the tasks carried out by a team of 25 lawyers, that there might have been some duplication of their efforts. Contrary to UPS’ assertion that the duplication of tasks was limited to an absolute minimum, it is not apparent from the summary table that the most experienced lawyers were involved solely for the purposes of reviewing, particularly in the form of rereading, the work of less experienced lawyers. Moreover, the duplication of effort is clearly demonstrated at the stage of drawing up the application and the reply, where several lawyers were required to perform tasks that were essentially identical.
82 Thirdly, while it appears that an average hourly rate of EUR 400 is in fact consistent with that of a particularly experienced professional, such high lawyers’ fees may be appropriate only to remunerate the services of such a professional who is capable of working quickly and effectively (see, to that effect, order of 9 September 2015, Smurfit Kappa Group v Commission, T‑304/08 DEP, not published, EU:T:2015: 707, paragraphs 80 and 87). Therefore, any remuneration at such a level must be counterbalanced by a strict evaluation of the total number of hours of work necessary.
83 In the light of the foregoing considerations, the Court considers that the costs recoverable by the applicant from the Commission in respect of lawyers’ fees can be assessed on an equitable basis at EUR 240 000.
Economists’ fees
84 By its application for taxation of costs, UPS seeks reimbursement from the Commission of EUR 219 476.59 in respect of economists’ fees, corresponding, for one firm of economists, to 206.25 hours of work, and, for a second firm of economists, to 167 hours of work.
85 According to the Commission, all the costs which UPS seeks to have reimbursed in respect of economists’ fees cannot be recoverable. For the first firm of economists, the Commission contends that the expenses incurred were not necessary for the purposes of the proceedings. For the second, the Commission submits that the recoverable costs must be calculated restrictively, especially since UPS’ application for taxation of costs and the table in the annex to that application do not make it possible to identify the hourly rates charged or the breakdown of the amounts actually paid.
86 In that regard, it must be recalled that, given the essentially economic nature of the assessments carried out by the Commission in merger control procedures, the involvement of economic experts in addition to the work of legal counsel may, sometimes, be justified and thus give rise to costs that may be recovered pursuant to Article 140(b) of the Rules of Procedure (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 55; see also, to that effect, order of 19 December 2006, WestLB v Commission, T‑228/99 DEP, EU:T:2006:405, paragraph 78 and the case-law cited).
87 In order for that to be the case, such involvement of economic advisers must be objectively necessary for the purposes of the proceedings. That may in particular be the case where the economic expert’s report turns out to be crucial to the outcome of the case, such that its production by a party saves the Court from having to order the commissioning of an expert’s report pursuant to its powers of inquiry under Article 91(e) of its Rules of Procedure (order of 19 December 2006, WestLB v Commission, T‑228/99 DEP, not published, EU:T:2006:405, paragraph 79).
88 In the first place, as regards the objective necessity of the costs incurred as a result of the involvement of economic advisers, UPS states that the economists’ fees have not been duplicated. The first firm of economists was involved in respect of the second and third pleas in law, namely those concerning the assessment of efficiency gains and the closeness of competition, whereas the second firm of economists was involved only in respect of the first plea, namely that concerning the analysis of the impact of the merger on prices and the Commission’s econometric model.
89 In that regard, having regard to the nature of the dispute, the involvement of the second firm of economists in respect of the first plea of the action appears to be objectively necessary. The econometric model on the basis of which the Commission established, in the contested decision, the impact of the merger on prices was clarified only during the proceedings before the Court. That involvement appears all the more justified since a large part of the oral argument at the hearing covered that issue, necessitating the involvement of economists at that hearing, as is moreover apparent from the summary table annexed to the application for taxation of costs and from the minutes of the hearing.
90 However, the same cannot be said of the fees paid to the first firm of economists. In the application in the main proceedings, UPS makes no express reference, in respect of the second and third pleas, to the work carried out by those economists. Annex A.3 to the application contains only a report drawn up by the latter, dated 6 November 2012, which was carried out following the statement of objections, and Annexes A.9 and A.10 contain only a reference to the work of those economists, in the context of clarifications provided by UPS and TNT to the Commission in respect of efficiency gains, on 28 September 2012, namely during the administrative procedure. Similarly, although, in the reply, UPS refers specifically to the clarifications provided by those economists, it does so only by reference to the annexes relating to exchanges which took place during the administrative procedure.
91 Moreover, UPS does not demonstrate at all in its application for taxation of costs that the fees of those economists were objectively necessary. Unlike for the second firm of advisers, UPS does not insist on the fact that the arguments put forward and the evidence provided by the economists of the first firm did not come from the administrative procedure.
92 The fact remains that it is clear from the minutes of the hearing that two economists from the first firm were called upon to express their views at the hearing. The costs corresponding to the preparation for the hearing and the involvement of those economists must also be regarded as having been objectively necessary for the purposes of the proceedings.
93 In the second place, for the purposes of assessing the amount of recoverable costs, it must be stated at the outset that UPS provides, in support of its application, only a table describing, according to the stages of the proceedings before the Court, the tasks performed and their duration, without mentioning the hourly rates charged.
94 In other words, the documents sent by UPS do not make it possible to identify with precision the way in which the amount of EUR 219 476.59 was divided between the two firms of economists. UPS also fails to justify to the requisite factual and legal standard that the costs incurred were genuine, in so far as the table annexed to the application for taxation of costs is not accompanied by any signed and dated invoices.
95 Accordingly, the incomplete information provided in the present case by UPS necessarily requires the Court to make a strict assessment of the amount of the recoverable fees (see, to that effect, order of 13 February 2008, Verizon, T‑310/00 DEP, EU:T:2008:32, paragraph 53).
96 In that regard, so far as the second firm of economists is concerned, in the absence of very precise information on the tasks carried out by a large team of five economists, it cannot be ruled out, first, that there may have been some duplication of their efforts.
97 Moreover, that duplication is apparent, in the light of the table in the annex to the application for taxation of costs, in so far as, as regards the provision of advice in respect of the first plea of the action, participation in the hearing and the study of the Commission’s responses, several economists were entrusted with the same tasks.
98 The same is true of the first firm of economists. In the absence of very precise information on the tasks performed by the two economists prior to the hearing, a duplication of effort cannot be ruled out. In the light of the table in the annex to the application, those two economists were assigned the same tasks for 17.67 hours and 39.33 hours respectively.
99 Secondly, an amount of EUR 219 476.59 in economists’ fees for a total of 373.25 hours of work entails an hourly rate of EUR 588, which is clearly excessive.
100 Accordingly, the fees recoverable in respect of the economists’ involvement may be fixed on an equitable basis at EUR 25 250, which includes the travel and subsistence expenses of the four economists present at the hearing.
Lawyers’ disbursements
101 By its application for taxation of costs, UPS seeks recovery of lawyers’ travel and subsistence expenses and copying and communication expenses. Those expenses amount to EUR 60 292.30.
102 In its observations, the Commission contends, principally, that the Court should reject the application for reimbursement of lawyers’ disbursements, in so far as the copying and communication expenses are not recoverable and the travel and subsistence expenses are not substantiated in any way by sufficient evidence. In the alternative, the Commission requests the Court to fix the costs corresponding to those disbursements at EUR 5 000.
103 In that regard, as submitted by the Commission, it must be stated that, in its application for taxation of costs, UPS does not substantiate in any way that the costs it seeks to recover are genuine, in the light, in particular, of invoices or of any other supporting evidence.
104 The absence of such information does not, however, prevent the amount of recoverable costs being set on the basis of an equitable assessment, but places the Court in a situation where it must necessarily assess the claims made by UPS strictly (see, to that effect, order of 13 February 2008, Verizon, T‑310/00 DEP, EU:T:2008:32, paragraph 53).
105 In the first place, it should be borne in mind that communication and copying expenses may, in principle, be regarded as recoverable costs (see, to that effect, order of 2 June 2009, Sison v Council, T‑47/03 DEP, EU:T:2009:166, paragraph 51).
106 However, the lack of detailed records of the expenses incurred by UPS leaves the Court unable to identify precisely, out of the EUR 60 292.30 of which recovery is sought in respect of administrative expenses, the amounts that correspond exactly to the communication and copying expenses. The lack of descriptions or records relating to those expenses likewise leaves the Court unable to verify that those expenses were incurred solely for the purposes of the main proceedings.
107 Accordingly, in the light of the incompleteness of UPS’ application, the recovery of copying and communication expenses must be assessed restrictively.
108 In the second place, it cannot reasonably be disputed that travel and subsistence expenses for the purposes, inter alia, of participating in the hearing, are, in principle, recoverable costs.
109 In its application for taxation of costs, UPS states that the expenses of which recovery is sought cover, first, the travel and subsistence expenses of two lawyers for the purposes of consulting confidential documents at the Court Registry in February 2016 and, second, the travel and subsistence expenses of six lawyers for the purposes of the hearing on 6 April 2016. UPS states that, since the team of lawyers in charge of the file was based both in Brussels and in Amsterdam, the travel and subsistence expenses were necessary.
110 However, failing any supporting evidence provided in that regard by UPS, the Court cannot verify whether the latter were, in the present case, reasonable, so that it is also necessary to assess the travel and subsistence expenses restrictively and to fix all the recoverable lawyers’ disbursements on a flat-rate basis at EUR 5 000.
111 In the light of all the foregoing considerations, and in the absence of an application for taxation of the costs relating to the present taxation of costs proceedings, the total costs recoverable from the Commission can be assessed on an equitable basis at EUR 270 250.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
The total amount of the costs to be reimbursed by the European Commission to United Parcel Service, Inc., is fixed at EUR 270 250 (two hundred and seventy thousand two hundred and fifty euro).
Luxembourg, 17 August 2020.