ORDER OF THE GENERAL COURT (Second Chamber)
31 March 2011 (*)
(Procedure – Taxation of costs)
In Joined Cases T‑5/02 DEP and T‑80/02 DEP,
Tetra Laval BV, established in Amsterdam (Netherlands), represented by A. Vandencasteele and M. Johnsson, lawyers,
applicant,
v
European Commission, represented by V. Di Bucci and V. Bottka, acting as Agents,
defendant,
TWO APPLICATIONS for taxation of costs lodged by Tetra Laval BV following the judgments in Case T-5/02 Tetra Laval v Commission [2002] ECR II‑4381 and T-80/02 Tetra Laval v Commission [2002] ECR II-4519 and the judgments in Cases C-12/03 P Commission v Tetra Laval [2005] ECR I-987 and C-13/03 P Commission v Tetra Laval [2005] ECR I‑1113,
THE GENERAL COURT (Second Chamber),
composed of N. J. Forwood (Rapporteur), President, F. Dehousse and J. Schwarcz, Judges,
Registrar: E. Coulon,
makes the following
Order
1 The present cases concern the taxation of the costs incurred by Tetra Laval BV (‘Tetra’) in two actions for annulment.
2 After hearing the parties, Cases T-5/02 DEP and T-80/02 DEP are joined for the purposes of the present order on account of the connection between them.
Facts, procedure and forms of order sought
3 By judgment in Case T-5/02 Tetra Laval v Commission [2002] ECR II-4381, the General Court annulled Commission Decision 2004/124/EC of 30 October 2001, declaring a concentration to be incompatible with the common market and the EEA Agreement (Case No COMP/M. 2416 – Tetra Laval/Sidel) (OJ 2004 L 43, p. 13), and ordered the Commission to pay the costs.
4 By judgment in Case T-80/02 Tetra Laval v Commission [2002] ECR II-4519, the General Court annulled Commission Decision 2004/103/EC of 30 January 2002 setting out measures in order to restore conditions of effective competition pursuant to Article 8(4) of Council Regulation (EEC) No 4064/89 [of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 395, p. 1, corrected version in OJ 1990 L 257, p. 13, corrigendum OJ 1998 L 3, p. 16)] (Case COMP/M. 2416 – Tetra Laval/Sidel) (OJ 2004 L 38, p. 1), and ordered the Commission to pay the costs.
5 By judgment in Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, the Court of Justice dismissed the Commission’s appeal against the judgment in Case T-5/02 and ordered it to pay the costs.
6 By judgment in Case C‑13/03 P Commission v Tetra Laval [2005] ECR I‑1113, the Court of Justice declared the Commission’s appeal against the judgment in Case T-80/02 devoid of purpose and ordered it to pay the costs.
7 As Tetra and the Commission were unable to agree on the amount of the recoverable costs, Tetra requested the Court of Justice (Case C-12/03 P-DEP and Case C-13/03 P-DEP) and the General Court (Case T-5/02 DEP and Case T‑80/02 DEP) to adjudicate on the costs.
8 In Case C-12/03 P-DEP and Case C-13/03 P-DEP Tetra requested the Court of Justice to fix the amount of the costs to be recovered at EUR 924 703.90, corresponding to the fees and disbursements of its legal counsel in connection with the two appeals before the Court. The Commission contended that the Court should dismiss the application for taxation of costs in its entirety as inadmissible and, in the alternative, that the Court should fix the recoverable costs at EUR 67 000 for Case C-12/03 P and EUR 3 000 for Case C-13/03 P.
9 By order of 20 May 2010 in Cases C-12/03 P-DEP and C-13/03 P-DEP Tetra Laval v Commission, not published in the ECR, (‘the order of the Court of Justice in Tetra’), the Court of Justice joined Cases C-12/03 P-DEP and C-13/03 P-DEP and fixed the total amount of costs to be reimbursed by Commission to Tetra with respect to the two appeals at EUR 124 000.
10 In Case T-5/02 DEP Tetra claims that the General Court should fix the amount of recoverable costs with respect to Case T-5/02 at EUR 1 655 736.78.
11 In Case T-80/02 DEP, Tetra claims that the General Court should fix the amount of recoverable costs with respect to Case T-80/02 at EUR 237 658.49.
12 In both Case T-5/02 DEP and Case T-80/02 DEP, the Commission contends that the General Court should dismiss the application for taxation of costs in its entirety as inadmissible.
13 In the alternative, the Commission contends that the Court should fix the recoverable costs at EUR 165 000 for Case T-5/02 and EUR 55 000 for Case T‑80/02.
Admissibility
Arguments of the parties
14 The Commission maintains that Tetra’s applications for taxation of costs are inadmissible in their entirety.
15 After proposing to Tetra, in its reply of 27 October 2006 to Tetra’s claim for recovery of costs of 31 January 2006 whereby Tetra sought to recover an amount of EUR 1 000 000, that the costs be settled at EUR 290 000 for the proceedings before both the General Court and the Court of Justice, the Commission received no response from Tetra for more than two years. Tetra confirmed to the Commission its intention to pursue its right to recover costs only on 23 December 2008, after receiving a second letter from the Commission stating that Tetra appeared to have waived its claims. The application for taxation of costs was then lodged with the Court of Justice only on 22 May 2009, and with the General Court, after regularisation, only on 4 September 2009.
16 Since more than two years and two months elapsed before Tetra responded to the Commission’s letter of 27 October 2006, it effectively and definitively waived its right to pursue its claims.
17 The Commission maintains that a period of two years and two months is not a reasonable period within the meaning of the case-law, which requires the parties concerned to seek recovery of costs within such a period (see order in Case 126/76 DEP Dietz v Commission [1979] ECR 2131, paragraph 1, and order in Case T‑2/93 DEP Air France v Commission [1996] ECR II-235, paragraph 12). It submits that the ‘reasonable period’ requirement applies not only to the initial lodging of an unreasonably high and unsubstantiated claim but also to pursuing a valid claim, with the appropriate follow-up and the timely submission of the relevant evidence.
18 Tetra contends that the Commission’s position in that regard is unfounded. A limitation rule of the type proposed by the Commission is not supported by the Rules of Procedure, the Statute of the Court of Justice or the Court’s case-law. The general principle of non-retroactivity of European Union law precludes in any event the application of such a rule to Tetra.
Findings of the Court
19 It follows from the Court’s case-law that a claim for recovery of costs must be submitted within a reasonable period to the party ordered to pay the costs (see, to that effect, orders in Dietz v Commission, paragraph 1, and Air France v Commission, paragraph 12).
20 It must none the less be observed that Article 92 of the Rules of Procedure of the General Court does not prescribe a time-limit for submission to the Court of a claim for taxation of costs (see, to that effect, order of 20 March 2003 in Case C‑60/97 P-DEP Commission v X, paragraph 14). Likewise, neither the Rules of Procedure of the General Court nor the case-law prescribe a time-limit for the intermediate steps in the taxation of costs proceedings after the claim for recovery of costs has been communicated to the party ordered to pay them.
21 The Court of Justice stated, in its order in Tetra (paragraph 23), that Tetra had communicated its initial claim for recovery of costs to the Commission within a period which did not exceed the reasonable period beyond which it would be reasonable to consider that Tetra had waived its right to recover the costs which it had incurred. As the applications for the taxation of costs incurred in the proceedings before the Court of Justice and the General Court were submitted together, after the Court had given judgment on the appeal, the same therefore necessarily applies in the present case.
22 Consequently, the objection of inadmissibility raised by the Commission must be rejected (see order of the Court of Justice in Tetra, paragraph 24).
Substance
Arguments of the parties
23 In Case T-5/02 DEP, the costs sought to be recovered amount to EUR 1 655 736.78, which may be broken down as follows:
– fees and disbursements for legal counsel: EUR 1 340 858.08;
– fees and disbursements for the economic consultant: EUR 314 878.70
24 In Case T-80/02 DEP, the costs in respect of which Tetra seeks reimbursement relating to fees and disbursements for legal counsel amount to EUR 237 658.49.
25 As regards the subject-matter and nature of the dispute and its importance from the point of view of European Union law, Tetra submits that the actions before the General Court in Case T-5/02 and Case T-80/02 raised new, important and complex questions, particularly with respect to the conditions in which the Commission may prohibit concentrations and therefore order a divestiture of shares on the sole basis of conglomerate effects, the criteria on which that assessment should be made, and also to the types of commitments acceptable in merger procedures, the burden of proof and the standard of proof. That importance was also underlined by the Commission itself particularly in its appeals before the Court.
26 As regards the difficulty of the work generated by the proceedings, Tetra claims that, in general, cases relating to procedures under Regulation No 4064/89 give rise to complex legal and economic issues and must be founded on detailed market analyses which require recourse to specialist counsel.
27 Tetra also takes the view that in claiming, in its letter of 27 October 2006, that the outcome of the proceedings was not ultimately determined by legal questions regarding either the possibility of assessing conglomerate mergers under Regulation No 4064/89 or the role which disincentives play in such an assessment, the Commission embarks on an ex post facto analysis, according to which recoverable costs are to be determined on the basis not of what appeared necessary at the time of the case but of what appears necessary after the outcome of the case is known. A party is entitled to incur costs in preparing its defence against an argument put forward by the Commission even if that argument is ultimately not the one on which the case is decided.
28 Tetra also rejects the Commission’s method in measuring the complexity of the present case by the number of pleas or the number of markets affected. The questions examined in this case concerned, among others, new theories of conglomerate effects.
29 As regards the Commission’s argument that the application of the expedited procedure did not add to the complexity of the case, Tetra replies that the effort of limiting the number of written briefs, rather than reducing the amount of work, resulted in a different allocation of work, more time being spent on the preparation for the oral hearing.
30 With respect to the financial interests of the parties to the proceedings, Tetra submits that the purchase price which it paid for Sidel SA, namely EUR 1.7 billion, was in itself sufficient to demonstrate its significant financial interest in the proceedings in issue. It also observes that, under the French rules applicable to public offers, it was required to acquire the shares in Sidel SA at the time of making its public offer, and therefore before the Commission adopted its decision. Accordingly, the financial risk which it bore, namely the risk of having to sell the shares at a considerable loss should the transaction be prohibited, was considerably higher than in a typical concentration.
31 Tetra maintains that the very high financial stakes involved, and also the novel and complex issues raised by the Commission, fully justify the extent to which it had recourse to legal and technical counsel. The volume of work carried out by its counsel and the level of hourly rates shown in the annexes to its application for taxation of costs are wholly justified by the importance of the cases in question.
32 More particularly, as regards the preparation of the ‘mock reply’, the work done was necessary as it formed an essential element for the preparation for the hearing before the General Court.
33 The work done in the period between the hearing before the General Court and the lodging of the Commission’s appeals mostly related to organisational matters following the hearing and measures taken when the General Court’s judgments were delivered, in particular the analysis of those judgments.
34 As regards the number of lawyers involved in the case, Tetra disputes the Commission’s argument that the discussion of legal matters between members of different law firms per se is not ‘necessary’ for the handling of the case. Furthermore, it takes the view that the number of its lawyers is objectively justified by the strategic and financial interests involved and by the complexity of the case.
35 Concerning the number of hours worked by the lawyers, apart from the fact that the figure put forward by the Commission as representing the hours of work carried out by its own agents (325 hours for both cases) is unrealistic, Tetra also maintains that that number of hours of work cannot be compared with the number of hours of work carried out by Tetra’s counsel, as the number of hours which the Commission devotes to a matter does not dictate what is deemed objectively necessary in order for a company to defend its interests.
36 As regards, more specifically, the fees and disbursements of the economic experts, Tetra takes the view that the amounts declared, including the discussions between those experts and the lawyers and the participation of Lexecon at the hearing, are justified in the light of the novel and complex leveraging theories presented by the Commission.
37 Last, as regards the disbursements in the form of, in particular, telephone calls, faxes, copying and travel, Tetra maintains that they are also incurred other than in connection with hearings before the Court, and leaves it to the Court to make an appropriate assessment of the amount of recoverable costs in that regard.
38 The Commission maintains, first of all, that Tetra’s application for taxation of costs is insufficiently reasoned. To begin with, that application, lodged at the General Court on 29 July 2009, did not differentiate between the costs incurred in Case T-5/02 and those incurred in Case T-80/02. Furthermore, the regularised application, lodged with the Court on 4 September 2009, contains new claims and justifications, which is contrary to Article 48(2) of the Rules of Procedure of the General Court. In addition, the regularised application itself provides the Court and the Commission with little justification and does not specify either the breakdown of the hours worked by the lawyers concerned or the total number of hours’ work claimed. Only by reading the 200 pages of annexes to the application is it possible to detect any justification for the actual components of the amount attaching to the proceedings in issue, several items of which, moreover, are either irrecoverable or excessive, and to arrive indirectly at the number of hours’ work claimed by each of the four law firms involved in the proceedings, the division of those hours between Case T-5/02 and Case T-80/02 not always being clear. In support of its argument, the Commission refers, first, to the case-law according to which the absence of precise information enabling the Court to ascertain which costs relate to which proceedings require it to adopt a ‘necessarily strict’ attitude with respect to recoverable costs (see order of 30 November 2009 in Case T‑56/02 OP-DEP Bayerische Hypo- und Vereinbank v Commission, not published in the ECR, paragraph 54), and, second, the case-law according to which the ability of the judicature of the European Union to assess the value of a lawyer’s work is dependent on the accuracy of the information provided (see order in Case C-89/85 DEP Ahlström Osakeyhtiö and Others v Commission [1994] ECR I‑99, paragraph 20).
39 The Commission questions whether it is in the interests of sound administration of justice for a party to send to the Court the invoices from its lawyers together with three items of correspondence under cover of a document styled as an application for taxation of costs. In the circumstances, the Commission maintains that the Court is entitled to dismiss the applicant’s claim without further analysis and to award the applicant the sum offered by the Commission’s letter of 27 October 2006, that is a total amount of EUR 220 000: EUR 165 000 for case T-5/02 and EUR 55 000 for Case T-80/02. That offer, based on the number of hours spent by the Commission’s agents on each case (235 and 90 hours respectively), is broken down as follows: EUR 196 000 for lawyers’ fees (EUR 142 000 in Case T-5/02 and EUR 54 000 in Case T-80/02), EUR 4 000 for the lawyers’ disbursements (EUR 3 000 in Case T-5/02 and EUR 1 000 in Case T-80/02) and EUR 20 000 for fees and disbursements for the economic expert in Case T-5/02.
40 If the Court finds it necessary to examine Tetra’s application for taxation of costs in more detail, in spite of its lack of relevant reasoning, the Commission then takes the view that, although it is true that the two actions concerned raised legal and economic questions of a certain complexity, those questions were, however, far from being as numerous and complex as those raised in the cases which gave rise to the orders in Case T-342/99 DEP Airtours v Commission [2004] ECR II‑1785) and of 29 October 2004 in Case T-310/01 DEP Schneider Electric v Commission, not published in the ECR). Furthermore, a relatively limited number of pleas were presented, in accordance with the requirements of the expedited procedure.
41 Furthermore, the outcome of the proceedings was ultimately not determined by legal questions concerning the assessment of conglomerate mergers or the role of the disincentives resulting from Article 82 EC in those assessments, since the Court of Justice has held that the General Court committed an error of law in that regard. Moreover, the Commission was found to have committed no manifest error of assessment in its macroeconomic analysis. The outcome of the proceedings was essentially dictated by more basic errors of assessment of the evidence in the Commission’s file and its failure to take into account the implications of certain remedies offered.
42 The expedited procedure did not add to the complexity of the case, but rather the opposite, since there was only one exchange of written pleadings.
43 As regards the complexity of the cases in question and the amount of work thereby generated, the complex elements of fact and of law have all been debated already at length in the series of proceedings which took place during the administrative procedure. Furthermore, the legal and economic questions raised by the appeals were neither as numerous nor as complex as in similar cases (see orders in Airtours v Commission and Schneider Electric v Commission).
44 In addition, while it is indisputable that Tetra had a substantial economic interest in the outcome of the two actions in question, that interest was significantly less than in the case giving rise to the order in Schneider Electric v Commission.
45 In any event, Tetra has failed to demonstrate how the factors of importance, difficulty and economic interest which it has enumerated required the hours of work and other excessive costs in question in those actions.
46 As regards Tetra’s argument relating to an ex post facto analysis by the Commission of the arguments on the basis of which the cases in question were determined, the Commission submits that the factors of importance and complexity of the cases cannot be analysed in isolation from the judgments delivered by the General Court in those cases and from the objective significance of the cases for Community law. A party is not free to recover, by way of costs, the sums relating to the services of numerous lawyers and to excessive and unnecessary work on the sole ground that a case assumes subjective importance in that party’s eyes.
47 The Commission maintains, moreover, that the number of hours’ work claimed by Tetra in the context of the two sets of proceedings before the General Court, which in its letter of 27 October 2006 is estimated at 5 247 hours or almost 131 working weeks, and also the hourly rates claimed are clearly excessive. The two actions in question did not require the uninterrupted full-time work of four law firms for the eight-month period of activity relating to the two sets of proceedings. By way of comparison, the Commission estimates that its various agents worked for approximately 235 hours in connection with Case T-5/02, 59 hours on Case T‑80/02 and 31 hours in connection with Case T-80/02 R, a total of 325 hours. Even on the assumption that Tetra needed twice as much time as the Commission’s agents actually needed in order to prepare the various documents and submissions in the cases in question, the total number of hours would be 650, which is an appropriate number in the light of the case-law on mergers (see order of 13 February 2008 in Case T-310/00 DEP Verizon v Commission, not published in the ECR, in which a number between 450 and 500 hours was accepted, which was nearly half of what the applicant had claimed). At a rate of EUR 300 per hour, Tetra would thus be entitled to recover at most a reasonable amount of EUR 196 000 for those cases (EUR 142 000 for Case T-5/02 and EUR 54 000 for Case T‑80/02). The Commission further observes that the high level of the hourly rates charged by a highly specialised lawyer should have the effect of moderating the number of hours worked (order in Airtours v Commission, paragraph 49). In addition, Tetra’s lawyers were already familiar with the cases by the stage of the actions before the General Court, since they had already represented Tetra in the administrative procedure and they are generally accustomed to dealing with merger cases of the same type.
48 The Commission maintains that the hourly rate charged by Tetra’s counsel should not exceed an average of EUR 300. In fact, the hourly rates submitted in counsel’s time-sheets appear to range between EUR 125 and EUR 660.
49 The Commission also refers to an unnecessary multiplication of lawyers and law firms by Tetra, which can increase costs unnecessarily (see orders in Case T‑78/89 DEP PPG Industries Glass v Commission [1993] ECR II-573, paragraph 40, Airtours v Commission, paragraphs 43 and 44, and Verizon v Commission, paragraph 52). Tetra has not justified its recourse to four different law firms and their staff in the proceedings in question.
50 As regards the fees and disbursements of the economic expert, the Commission notes that the sum of EUR 314 878.70 claimed in that respect corresponds to 919 working hours or 23 weeks of 40 hours per week. That sum appears to go far beyond what could be regarded as necessary, bearing in mind that the two economic annexes to the application in Case T-5/02 came to 41 pages and were to a great extent composed of general arguments based on standard economic literature and of developments of arguments and econometric studies already submitted during the administrative procedure. In those circumstances, the Commission submits that the amount of recoverable costs in that respect should not exceed EUR 20 000 for the contributions of experts to the written submissions and at the hearing (see, in that connection, order in Schneider Electric v Commission, paragraph 61).
51 Last, a number of specific items set out in the time-sheets are not justified as expenses necessarily incurred, such as restaurants and evening meals, flowers, out-of-town lodging, internal organisation expenses, travel other than to Court hearings, photocopies other than those specifically required by the Court, communication costs between two lawyers representing the same party, case-law analysis and reading articles, and costs incurred after the hearing. The Commission maintains that, as regards the two sets of proceedings at first instance and an application for interim measures which gave rise to three complete or partial days for the hearing, a maximum sum of EUR 4 000 (EUR 3 000 for Case T-5/02 and EUR 1 000 for Case T-80/02) should be allocated for those disbursements.
Findings of the Court
52 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 to be regarded as recoverable costs.
53 It follows from consistent case-law that recoverable costs are to be limited, first, to expenses incurred for the purposes of the proceedings before the Court and, second, to expenses necessarily incurred for those purposes (order of 16 December 2009 in Case T-239/01 DEP SGL Carbon v Commission, not published in the ECR, paragraph 26, and the case-law cited; see, also to that effect, order in Case C-104/89 DEP Mulder and Others v Council and Commission [2004] ECR I-1, paragraph 43 and case-law cited).
54 Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of the costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (order in Verizon v Commission, paragraph 55, and the case-law cited).
The lawyers’ fees
55 It should be borne in mind at the outset that the Courts of the European Union are 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 (see, in particular, order of 10 September 2009 in Case C-204/07 P-DEP C.A.S. v Commission, not published in the ECR, paragraph 13; order in Verizon v Commission, paragraph 29, and the case-law cited).
56 It has also consistently been held that, in the absence of any provisions of European Union law relating to tariffs or to the necessary working time, the Court must freely assess the details of the case, taking account of the subject-matter and the nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved and the economic interests which the dispute presented for the parties (see, in particular, orders of 9 January 2008 in Case C-104/05 P-DEP Pucci v El Corte Inglés, not published in the ECR, paragraph 10 and case-law cited, and Verizon v Commission, paragraph 30, and the case-law cited).
57 It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.
– The subject-matter and the nature of the disputes in question, their importance from the point of view of EU law and the difficulties of the case
58 As regards the subject-matter and nature of the disputes concerned, it must be recalled that the disputes before the General Court consisted of two actions seeking annulment, first, of Decision 2004/124, which declared the concentration between Tetra and Sidel SA was incompatible with the common market and the EEA Agreement and, second, of Decision 2004/103, by which the Commission required Tetra to divest itself of its entire shareholding in Sidel S.A. The Court observes that the two cases, relating to a large concentration with a Community dimension, present, as regards their subject-matter and their nature, a high degree of factual and economic complexity.
59 As regards the importance of the disputes from the point of view of European Union law and the difficulties of the case, it must be observed that, regarding the action brought by Tetra in Case T-5/02, it submitted in particular, with respect to the substance of the case, that, by refusing to allow the modified merger, the Commission incorrectly applied Article 2(3) of Regulation No 4064/89. The three pleas relied on in support of that claim were based on the alleged absence of appreciable anti-competitive effects of the modified merger, both in terms of (i) horizontal or vertical effects, and (ii) conglomerate effects and, (iii) that the assessment by the Commission of the commitments of the parties to the merger was inadequate.
60 Examination of those pleas led the General Court to state, in particular, that the anti-competitive consequences of the merger had been overestimated on the markets identified by the Commission, in so far as it justified its prohibition, at least in part, by the immediate horizontal and vertical effects resulting from the merger. The Court then ruled on the analysis of the conglomerate effects and leveraging. That examination led the Court, first, to specify the quality of the evidence that must be adduced by the Commission where it is required to show that a concentration is incompatible with the common market and also the scope of the General Court’s power of judicial review and, second, to rule on whether the Commission should take into account commitments as to conduct. As the Commission itself emphasised in its appeal, moreover, it is common ground that the dispute raised complex points of law which were important in the sphere of the control of concentrations, as they had a definite impact on the Commission’s future practice in the framework of that control (see, also to that effect, order of the Court of Justice in Tetra, paragraph 49).
61 The action brought by Tetra in Case T-80/02, on the other hand, was clearly subordinate and ancillary to Case T-5/02. For the purposes of this order, the importance and difficulty of Case T-80/02, in the light of Case T-5/02, must be treated as minimal.
– The economic interests which the disputes in question presented for the parties
62 As regards the economic interests which the disputes in question presented for the parties, both actions before the General Court indisputably had significant economic importance for Tetra since the contested Commission decisions compromised the acquisition by Tetra of Sidel SA at a purchase price of EUR 1.7 billion (see, to that effect, order of the Court of Justice in Tetra, paragraph 51).
– The amount of work carried out
63 The subject-matter and the nature of the disputes in question, the importance and complexity of the questions of fact and law raised by the actions for annulment in Cases T-5/02 and T-80/02 and the economic interest which both actions presented for Tetra did indeed justify a substantial workload (see, to that effect, order of the Court of Justice in Tetra, paragraph 52).
64 The fact, to which the Commission refers, that the outcome of the cases in question was ultimately not determined by certain points which it raised cannot call into question that assessment, since Tetra was none the less required to prepare its defence with respect to those points (see, to that effect, order of the Court of Justice in Tetra, paragraph 53).
65 It must none the less be observed that, as the Commission emphasises, the cases in question had already been analysed in depth by Tetra during the administrative procedure. It is common ground that most of the counsel representing Tetra in the annulment actions before the General Court had already represented it before the Commission and were familiar with the cases (see, to that effect, order of the Court of Justice in Tetra, paragraph 54, and the case-law cited).
66 As regards the fact that Tetra was assisted by four law firms in the two actions for annulment, which in the Commission’s view was unnecessary, it should be observed that if, in principle, the remuneration of a single agent, counsel or lawyer is recoverable, it may be that, depending on the specific characteristics of each case, foremost among which is its complexity, the remuneration of a number of lawyers may be regarded as coming within the concept of ‘expenses necessarily incurred’ within the meaning of Article 91(b) of the Rules of Procedure (see, to that effect, order of the Court of Justice in Tetra, paragraph 55, and the case-law cited).
67 It follows that, when fixing the amount of the recoverable costs, the Court should take account of the total number of hours’ work corresponding to the services provided and considered objectively necessary for the purposes of the proceedings concerned, irrespective of the number of lawyers who may have provided those services (order of the Court of Justice in Tetra, paragraph 56, and the case-law cited).
68 In that regard, the possibility for the Courts of the European Union to assess the value of the work carried out by a lawyer depends on the degree of precision of the information supplied (order of the Court of Justice in Tetra, paragraph 57, and the case-law cited).
69 In the present case, Tetra’s application for taxation of costs sets out the overall amounts invoiced for work carried out by the four law firms which assisted Tetra in the two actions before the General Court, but does not state the total number of hours of work claimed by Tetra for those actions: that number emerges only indirectly after a calculation carried out upon reading the multiple pages of the annexes to the application for taxation of costs, in which the various fee notes submitted by the four law firms are reproduced. Furthermore, as the Commission correctly observes, Tetra has not distinguished the expenses incurred for the purpose of Case T-5/02 from those in connection with Case T-80/02 (see, to that effect, order of the Court of Justice in Tetra, paragraph 58).
70 It must be recalled that the fee invoices included as an annex to the application have a purely probative and instrumental function. Therefore, it is not the task of the General Court to search for and identify among those documents those that could make up for the lack of precise information and detailed explanations in the application itself (order in Verizon v Commission, paragraph 50).
71 Those omissions are particularly regrettable since the Commission, in its letter of 27 October 2006, submitted a series of thorough and detailed observations which the application for taxation entirely fails to address.
72 In those circumstances, it would have been particularly important for the applicant to show the need for those hours of work, by providing precise information on the tasks accomplished by its various lawyers for the purpose of the proceedings, on the number of hours devoted to each of those tasks and on the hourly rates applied (see order in Verizon v Commission, paragraph 52).
73 The lack of more detailed information on hourly rates and the time spent on each item makes it especially difficult to verify precisely the costs incurred for the purpose of the proceedings before the Court and those which were necessary for that purpose, and requires the Court to apply a strict test when assessing the fees recoverable in this case (see order in Verizon v Commission, paragraph 53, and the case-law cited).
74 It must also be observed that, in its letter to Tetra of 27 October 2006, the Commission estimated, without that number being disputed by Tetra, that the total number of hours’ work claimed by Tetra in connection with the two sets of proceedings amounted to 5 247 hours, which represents almost 131 working weeks on the basis of eight hours charged per day. Having regard to all the characteristics of the disputes in question set out above, in particular the fact that the cases in question had already been analysed in depth by Tetra during the administrative procedure, the number of hours of work appears to be excessive (see, to that effect, order of the Court of Justice in Tetra, paragraph 59).
75 It should be stated that, in the expedited proceedings, Tetra’s counsel drafted an application in each case concerned. In addition to the proceedings for interim relief in Case T-80/02, they also attended an informal meeting with the Judge Rapporteur, lodged written submissions and participated in the hearing on 3 and 4 July 2002.
76 While it was indeed open to Tetra, as stated at paragraph 66 of this order, to entrust its defence to a number of lawyers, a comparison of the fee notes submitted by the four law firms which assisted Tetra before the General Court shows that their work overlapped, as its subject-matter was in part the same (see, to that effect, order of the Court of Justice in Tetra, paragraph 61).
77 Last, certain periods must be disregarded in the calculation of the fees. The lawyers’ fees relating to a period after the oral procedure before the General Court, such as those claimed with respect to the analysis of the judgments of the General Court and the preparation of the appeals, cannot thus be characterised as expenses necessarily incurred for the purpose of the proceedings at issue (see, to that effect, order in Mulder and Others v Council and Commission, paragraphs 48 and 50, and order of the Court of Justice in Tetra, paragraph 62).
78 As regards the hourly rates, it is appropriate, in light of all the characteristics of the disputes in question, to fix the hourly rate applicable to Tetra’s counsel at EUR 300.The fact that remuneration at that rate is taken into account requires, on the other hand, in return a strict assessment of the total number of hours’ work essential for the purposes of the proceedings in question (order of the Court of Justice in Tetra, paragraph 63).
79 Taking account of all of the foregoing and having regard to the criteria laid down in paragraph 56 of this order, considering also the objections expressed by the Commission in its letter of 27 October 2006, which the applicant has not seriously attempted to establish are irrelevant or unfounded, it is appropriate to fix at approximately 700 the number of hours of work necessary to Tetra for the purpose of the proceedings at issue before the General Court. At an hourly rate of EUR 300, the lawyers’ fees recoverable by Tetra can be assessed on an equitable basis at EUR 210 000.
The lawyers’ disbursements
80 As regards the lawyers’ disbursements set out in the various invoices submitted by the law firms which assisted Tetra, it should be stated that the information supplied by Tetra does not make it possible to determine whether all those disbursements were necessary (see, to that effect, order of the Court of Justice in Tetra, paragraph 65).
81 Thus, Tetra does not explain to what extent certain expenses such as, in particular, those for food and evening meals or travel other than for the purpose of attending the hearing before the General Court were necessary for the purposes of the proceedings in question before the Court. As to the expenses connected with communications between Tetra’s various counsel, they cannot be considered in their entirety to be expenses necessarily incurred for the purposes of those proceedings. Nor does Tetra justify the high level of certain expenses, such as printing costs (see, to that effect, order of the Court of Justice in Tetra, paragraph 66).
82 In those circumstances, the lawyers’ disbursements should be assessed, as a fixed sum, at EUR 10 000.
The fees and disbursements of the economic expert
83 Having regard to the economic nature of the complex assessments which the Commission undertook for the purpose of adopting the decisions at issue in the present case, the involvement of an economic expert along with the applicant’s legal advisors could be treated as necessary, within the meaning of Article 91(b) of the Rules of Procedure, and therefore the remuneration of the person concerned constitutes in principle recoverable costs within the meaning of that provision.
84 However, the applicant’s assessment of the cost of the work of its economic advisors and their oral involvement before the General Court at the hearing is not objectively justified in its entirety, having regard in particular, first, to the modest size of the documents drawn up by the persons concerned and produced before the Court and, second, the fact that those documents were based to a large extent on arguments already debated during the administrative procedure.
85 In the absence of more detailed information in the application for taxation of costs (see, in that connection, the considerations set out in paragraphs 68 to 73 above, applicable mutatis mutandis to the economic expert’s fees and disbursements claimed in the present case), the Court considers it appropriate to fix the amount of costs recoverable for the economic expert’s fees and disbursements at EUR 20 000.
86 In light of all the foregoing considerations, the recoverable costs, including those relating to the present taxation proceedings, can be assessed on an equitable basis at a total amount of EUR 240 000.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. Cases T-5/02 DEP and T-80/02 DEP are joined for the purposes of this order.
2. The total amount of the costs to be reimbursed by the European Commission to Tetra Laval BV is fixed at EUR 240 000.
Luxembourg, 31 March 2011.