ORDER OF THE GENERAL COURT (Sixth Chamber)
9 September 2015 (*)
(Procedure — Taxation of costs)
In Case T‑304/08 DEP,
Smurfit Kappa Group plc, established in Dublin (Ireland), represented by T. Ottervanger, lawyer,
applicant,
v
European Commission, represented by C. Urraca Caviedes and G. Conte, acting as Agents,
defendant,
supported by
Propapier PM 2 GmbH, formerly Propapier PM2 GmbH & Co. KG, represented by H.-J. Niemeyer and C. Kovács, lawyers,
intervener,
APPLICATION for taxation of costs (joint and several) to be reimbursed by the Commission and Propapier PM2 to Smurfit Kappa Group, following the judgment of the General Court of 10 July 2012 in Smurfit Kappa Group v Commission (T‑304/08, EU:T:2012:351),
THE GENERAL COURT (Sixth Chamber),
composed of S. Frimodt Nielsen (Rapporteur), President, F. Dehousse and A.M. Collins, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 On 8 October 2007, the German authorities notified the Commission of their intention to grant investment aid in an amount, in nominal terms, of EUR 82 509 500 to Propapier PM2 GmbH & Co. KG for the construction of a paper mill and power plant at Eisenhütttenstadt, in the Brandenburg-Nordost region (Germany).
2 By Decision C(2008) 1107 of 2 April 2008, the Commission, without initiating the formal investigation procedure provided for in Article 88(2) EC (now Article 108(2) TFEU), declared that that subsidy constituted State aid compatible with the internal market.
3 By application lodged at the Registry of the General Court on 5 August 2008, the applicant, Smurfit Kappa Group plc, brought an action seeking the annulment of that decision.
4 By document lodged at the Registry of the General Court on 12 December 2008, Propapier PM2 GmbH & Co. KG, which became Propapier PM 2 GmbH in the course of the proceedings, applied for leave to intervene in support of the Commission. By order of 21 April 2009, the President of the Third Chamber of the General Court granted that leave to intervene.
5 By judgment of 10 July 2012 in Smurfit Kappa Group v Commission (T‑304/08, EU:T:2012:351; ‘the judgment’), the General Court annulled Decision C(2008) 1107 and ordered the Commission and the intervener to pay the costs.
6 By letter of 19 March 2013, the applicant requested the Commission to transfer to it a total amount of EUR 251 771 by way of costs.
7 By letter of 11 April 2013, the Commission declared that it was not responsible for the expenses specifically caused by the intervener’s intervention. In addition, it indicated that the costs claimed by the applicant were excessive in the light of the case-law.
8 By letter of 27 May 2013, the applicant maintained its claim in full, submitted justifications and indicated that the General Court’s judgment had held that the Commission and the intervener were jointly and severally liable, the Commission therefore being obliged to reimburse it the full amount claimed.
9 By letter of 19 June 2013, the Commission argued that the applicant had not submitted any substantially new arguments addressing its questions. It also stated that the intervener had to be involved in any discussion concerning the reimbursement of costs and in any potential application for taxation of costs.
10 By letter of 10 July 2013, the applicant requested the intervener to transfer to it a total amount of EUR 251 771 by way of costs. On 1 August 2013, the intervener sent a letter to the applicant indicating that it had not provided sufficient evidence to support its claims.
11 By letter of 23 August 2013, the applicant sent the intervener justifications identical to those provided to the Commission.
12 On 9 September 2013, the intervener disputed the substance of the applicant’s claim, both as regards the principle involved and the amount.
13 On 5 November 2013, given the successive refusals of the Commission and the intervener to proceed with the reimbursement of the amount of EUR 251 771, the applicant brought the present application for taxation of costs, pursuant to Article 92(1) of the Rules of Procedure of the General Court of 2 May 1991.
14 By documents lodged with the Registry of the General Court on 7 January 2014, the Commission and the intervener submitted observations on the present application.
15 The applicant submits that the Court should recognise the joint and several liability of the Commission and the intervener and set the total amount of the costs to be reimbursed to it at EUR 259 611.
16 The Commission claims that the Court should hold the intervener liable for the costs specifically caused by its intervention and to set the total amount of recoverable costs at a maximum of EUR 27 000.
17 The intervener claims that the Court should dismiss the applicant’s application or, in the alternative, hold the intervener liable for an amount not exceeding the costs caused by its intervention.
Law
Arguments of the parties
The scope of the order that the Commission and the intervener pay the costs
18 The applicant argues that the Court ordered both the Commission and the intervener to pay the costs. It is of the view that those two parties are thus jointly and severally liable for reimbursement of the full amount of the costs. In addition, the Court cannot require the applicant to determine the respective proportions of liability of the parties ordered to pay the costs.
19 The Commission maintains that, since the Court did not expressly declare that it and the intervener were jointly and severally liable for payment of the full amount of the costs, it is for the intervener to take up all the costs specifically caused by its intervention.
20 The intervener submits that it can be made liable only for the costs that were specifically caused by its intervention. It is of the view, in this respect, that Article 87 of the Rules of Procedure of 2 May 1991 draws a distinction between an ‘unsuccessful party’ in the sense of Article 87(2) and the ‘intervener’, which, according to Article 87(4), is to bear its own costs. The latter paragraph, it submits, is aimed specifically at avoiding a situation in which the intervener is jointly and severally liable for paying the costs. According to its case-law, the Court applies that distinction simply by requiring interveners to pay their own costs.
The amount of recoverable costs
– The economic importance of the case
21 The applicant argues that the dispute was, both for it and for the intervener, of substantial economic importance. In terms of the amounts at stake for the intervener, the applicant observes that these originally amounted, in nominal terms, to EUR 82.5 million. According to the Commission’s decision to initiate an in-depth investigation, the amounts now amount to EUR 50.5 million. As for its personal interest, the applicant maintains, first of all, that the aid already paid by the German authorities would become subject to recovery if the Commission found that the aid was incompatible with the internal market. Next, the applicant states that it suffered economic harm from the distortion of competition caused by the subsidised construction of one of the largest paper mills in the European Union, which has had a severe impact on the price level. Last, it argues that the economic consequences of the judgment are significant, since, in its view, the Commission has had to modify its regional-aid policy following it.
22 The Commission does not dispute that the case had a significant economic interest for the intervener (paragraph 54 of the Commission’s observations). It notes, however, that the General Court did not declare the aid to be incompatible with the internal market, but argues that the consequences of the judgment are merely that the Commission has to perform a new analysis of compatibility (paragraph 54 of the Commission’s observations). It is thus the outcome of the new formal investigation procedure alone that could have an economic impact on the intervener (paragraph 54 of the Commission’s observations).
23 In addition, the Commission states that the initial reduction of the amount of the aid does not result from the judgment, given that the German authorities informed it of that reduction by letter of 7 November 2008, thus well before the date of the judgment. Moreover, in the Commission’s view, the applicant has not demonstrated that the dispute was of substantial importance to it. The Commission relies, in this regard, on the analysis which the Court conducted in the judgment as to the application’s admissibility. Last, it maintains that not only has it not modified its regional-aid policy as a result of the judgment, but that in any event that issue has no bearing on the economic interest of the case.
24 The intervener submits that, in its view, only the applicant’s economic interest must be taken into account by the Court. In any event, the amount of EUR 50.5 million which the applicant claims to represent the intervener’s economic interest lacks substantiation and it considers that amount to be overestimated. It maintains that at least EUR 22.5 million has to be subtracted from that amount, that is to say, the amount that the German authorities could have granted it without having to give prior notification. It also states that that amount would not be sufficient to establish a considerable financial interest within the meaning of the Court’s case-law. In addition, it observes that the Court explicitly pointed out in its judgment that the applicant’s market position would by no means be substantially harmed by the State aid in question. It is of the view, furthermore, that the applicant’s economic interest in this case is limited solely to the safeguarding of its procedural rights. Last, it observes that the applicant’s pan-European business has continuously and markedly expanded since 2006 and that this trend is supported by its latest quarterly results.
– The importance of the case from the perspective of EU law
25 The applicant maintains that the case has raised new points of law and far exceeds its personal interest (paragraph 30 of the application). It is of the view, in particular, that the case has raised for the first time the question of the scope of the thresholds laid down in paragraph 68 of the Guidelines on national regional aid for 2007-2013 (OJ 2006 C 54, p. 13; ‘the Guidelines’). It maintains, in this regard, that the Court held that the Commission had misconstrued the Guidelines in relying, in its determination that the aid was compatible with the common market, on the sole fact that the thresholds laid down in paragraph 68 had not been exceeded. The applicant maintains, moreover, that the Commission was obliged to change its regional-aid policy as a result of the Court’s judgment, illustrating the high significance of the case. It states, furthermore, that the importance of the case is also illustrated by the extensive discussion of the judgment in leading law journals.
26 The Commission argues that the issue of whether it could rely, in finding that the State aid at issue was compatible with the common market, on the mere fact that the thresholds laid down in paragraph 68 of the Guidelines had not been exceeded was not a particularly complex one. It therefore maintains that that issue did not involve much work on the part of the applicant’s lawyers. The Commission also states that it has not changed its regional-aid policy to take account of the Court’s judgment, given that it was already required to adopt new provisions on the subject, the Guidelines applying only until 2013. On that subject, it adds that the judgment makes no criticism of the Guidelines themselves, but only in relation to how they were interpreted in that case. Last, it counters that the Court’s judgment has not led to more articles than any other judgment annulling a decision authorising State aid.
27 The intervener also disputes the applicant’s argument that the case has raised new points of law. It argues that the applicant itself summarises the underlying question of the case on the scope of the thresholds laid down in paragraph 68 of the Guidelines. It states that the answer to that question is contained in only three paragraphs of the judgment. In addition, it argues that, although the drafting of the new Guidelines concurred with the proceedings in the case, this was a pure coincidence. It maintains, moreover, that the removal of the thresholds laid down in paragraph 68 primarily results from the general review of the Guidelines’ principles, which had been planned well before the case began. It adds, furthermore, that the Commission’s regional-aid policy did not change as a result of the Court’s judgment, since the Commission appears to have applied in its latest decisions the same principles as those set forth in the present case. Last, the intervener argues that the significance from the point of view of EU law of a judicial decision cannot be measured in the number of articles published and that the majority of the articles cited by the applicant are either case annotations, which simply mirror the reasoning of the Court, or articles dealing only with the new Guidelines.
– The difficulties of the case
28 The applicant also emphasises the great complexity of the case. In this regard, it puts forward three arguments.
29 First, it argues that the Commission and the intervener brought up the inadmissibility of all the pleas of its application, without distinguishing between them, which created confusion and thus increased its workload. It maintains that the position of complainants under State aid law is generally known to be complicated, which abundant case-law illustrates. According to the case-law, the standing of a party challenging a decision taken at the end of the initial State aid investigation phase depends directly on the pleas put forward by that party in its application. Thus, the Commission and the intervener were wrong to argue that the applicant had put forward arguments regarding only the substance of the case, when it should have been clear from the outset that its first plea was aimed at safeguarding its procedural rights. Although it acknowledges that it raised substantive arguments, it considers that it was forced to do so in order to show the existence of doubts concerning the compatibility of the aid with the functioning of the market and that this line of reasoning was accepted by the Court.
30 Second, it observes that the intervener, supported by the Commission, contended, at great length and with a variety of arguments, that the applicant’s lawyers were not legally authorised to act. This plea of non-admissibility, ultimately rejected, required a great deal of attention from the applicant at the written phase, during the hearing and in its correspondence with the Court (paragraph 24 of the application).
31 Last, the applicant maintains that the case was complex, because it raised the question as to whether or not the Commission had experienced serious difficulties when examining the aid at issue and, as a matter of principle, the extent to which it enjoys a margin of appreciation in that regard. The applicant submits that it is settled case law that the question as to whether or not difficulties exist requires an investigation that goes beyond considering whether or not there has been a manifest error of assessment. It thus argues that an extremely important aspect of the case (although not decisive) had concerned a discussion as to whether the Commission was required to collect all the relevant information to define the relevant market and to calculate the capacity increase resulting from the construction of the new paper mill before it took its decision on the aid, even though it was entitled to limit its assessment to the 5% capacity increase test. The applicant notes, moreover, that the Commission emphasises the importance of economic analysis in State aid cases. The applicant therefore submits that it was indispensable for it to instruct a number of economists in order to be on a par with the Commission, which has a staff of specialised economists, and with the intervener, which, like the Commission, had previously submitted its own report.
32 According to the Commission, the fact that it questioned the admissibility of the action during the dispute does not imply that the case was complex. It is of the view, in this connection, that the case-law on admissibility in State aid actions is settled and that the applicant has not demonstrated that its action raised particularly complex issues in the present case. It notes that the pleas put forward by the applicant, with the notable exception of the first, were not expressly aimed at safeguarding the applicant’s procedural rights but at challenging the merits of the assessment of the compatibility of the aid in question with the internal market. The Commission takes the view that the discussions on admissibility were therefore largely due to the formulation of the applicant’s pleas.
33 The Commission then goes on to argue that the problem referred to by the intervener in relation to the authorisation of the applicants’ lawyers to act did not raise new legal issues and that that discussion arose only because of the applicant’s lack of diligence.
34 The Commission takes the view, last, that the question as to whether or not it enjoyed a margin of discretion when applying the Guidelines did not entail much work on the part of the applicant’s lawyers, since it was a purely legal question that did not require intricate reasoning. In addition, it argues that the discussion on whether it should have collected all the relevant information to define the relevant market and to calculate the capacity increase resulting from the construction of a new paper mill, before even taking its decision, was not only superfluous but could also not be considered complex. It points out, moreover, that no member of its chief economist team was involved in the case. Last, it observes that, according to the case-law, where experts give their expertise only unilaterally for one party, on that party’s behalf and initiative, the expenses incurred are in general not recoverable. On that subject, it adds that the applicant has not demonstrated that any of the exceptional circumstances that, according to the case-law of the Court, permit expert fees to be reimbursed are applicable. It also specifies that the economic studies submitted by the intervener were not instrumental to the success of any plea, nor were they produced in order to comply with an order of the Court.
35 Like the Commission, the intervener takes the view that the lengthy assessment of the admissibility of the action was caused by the applicant itself, which argued erroneously in its submissions that its market position had been substantially affected by the aid planned by the German authorities. In addition, the intervener argues that the alleged complexity of the standing of complainants in State aid matters is contradicted by the existence of a plethora of case-law on that subject.
36 The intervener considers, moreover, that the obligation, for the applicant’s lawyers, to obtain authorisation to plead was clearly set out in Article 44(5) of the Rules of Procedure of 2 May 1991. It states, consequently, that it was the applicant’s legal representatives who triggered the lengthy discussion that took place on the validity of their authorisation, which they had omitted to prove in a traceable manner for over three years, despite the intervener’s objections.
37 The intervener states, last, that there is no evidence whatsoever to suggest that the Commission encountered serious difficulties in examining the case. It argues that the Commission did examine all information useful for conducting the economic analysis of the effects of the aid and adds that the mere fact that the Commission reached a different conclusion to the applicant cannot serve as a valid indication of the difficulties that it allegedly encountered in examining the case. It stresses, in addition, that none of the applicant’s pleas, save one on the safeguarding of its procedural rights, was held to be justified. It argues, moreover, that half of the application was held to lack any merits. It adds, like the Commission, that the recoverability of experts’ fees can be invoked only if the economic expertise was decisive to the outcome of the proceedings. The intervener is of the view that the expertise provided by the applicant played no role in the Court’s reasoning. It specifies that, by its own economic expertise, it reacted only to the economic opinions of 9 November 2007 and 29 July 2008 put forward by the applicant. In its view, all of those points suggest that the economic analyses subsequently provided by the applicant were even less necessary.
– The amount of work involved in the proceedings and the appropriate rate
38 In the light of the foregoing, the applicant submits that the proceedings required a large amount of specialised work on matters both of substance and of procedure.
39 It requests of the Court the reimbursement of an amount of EUR 259 611, which is broken down as follows:
– EUR 222 491, corresponding to the lawyers’ fees incurred in the proceedings, including the following amounts: (i) EUR 56 385.50 in respect of the drafting of the application; (ii) EUR 56 408.50 in respect of the drafting of the reply; (iii) EUR 2 535 in respect of the request for confidential treatment of documents; (iv) EUR 50 461.29 in respect of the observations made on the intervention; (v) EUR 9 544 in respect of the observations made on the second statement in intervention; (vi) EUR 2 765 in respect of the answers to the questions of the Court; and (vii) EUR 42 392 in respect of the preparation for the hearing and the hearing itself;
– EUR 29 280, corresponding to the economic expertise fees;
– EUR 7 840, corresponding to the expenses relating to the recovery of costs.
40 As regards the lawyers’ fees, the applicant states that, for reasons of efficiency, two lawyers worked on the case: a senior partner, Professor Ottervanger, and an associate lawyer, Ms Henny. The former carried out 163.8 hours of work, at a rate of EUR 490 per hour over the whole period. The latter carried out 436.3 hours of work, at a rate of between EUR 295 per hour, in 2008, and EUR 420 per hour, in 2011. A junior associate also carried out a number of hours of work, at a rate of EUR 195 per hour.
41 The Commission makes the following observations in relation to the applicant’s claims.
42 First, it argues that the information provided by the applicant on how the hours worked were allocated is far from clear. It is of the view, in particular, that the applicant fails to explain why certain activities mentioned were genuinely necessary for the purpose of the proceedings. It criticises, moreover, the many incorrect calculations in the document submitted by the applicant.
43 Second, it maintains that the number of work hours claimed by the applicant’s lawyers is excessive. It suggests that the time genuinely necessary to prepare the various written and oral submissions did not exceed 90 hours. It also states that high hourly rates for a sophisticated lawyer should have a moderating effect on the number of hours necessary for the purpose of the proceedings.
44 In addition, the Commission argues that the sums spent on economic expertise are generally non-reimbursable where expertise has been provided to only one of the parties, on its behalf and initiative (paragraph 43 of the Commission’s observations). It notes, moreover, that the amount of EUR 29 280 claimed by the applicant was incurred in the context of an expert report submitted in response to the statement in intervention (paragraph 43 of the Commission’s observations).
45 Last, the Commission submits that the Court has, in its case-law, deemed hourly rates of between EUR 250 and EUR 300 to be reasonable. It states that the discrepancy with the hourly rates provided by the applicant is difficult to comprehend and maintains that an average hourly rate of EUR 300 would have been more reasonable in this case.
46 On that basis, the Commission submits that the amount of the costs which the applicant may recover should be fixed at a maximum of EUR 27 000.
47 Last, it is of the view that, in the light of the unreasonable and unsubstantiated claims of the applicant, that amount should not be increased by the expenses incurred for the purpose of the present proceedings.
48 First, like the Commission, the intervener argues that the number of working hours submitted is excessive, given the limited complexity of the case. It states that such a high number of hours was not necessary as the applicant’s counsel had already been introduced to the case, having represented the applicant during the administrative proceedings.
49 The intervener disputes, moreover, the recoverability of some of the expenses charged by the applicant. It submits that, according to settled case-law, the expenses that can be recovered as costs must be assessed on the basis of a single lawyer entrusted with the case and that the time spent by the applicant’s lawyers studying the file twice, carrying out repeated research and participating in internal meetings must therefore be discounted.
50 It also argues that under no circumstances could the preparation for the hearing and the hearing itself have necessarily taken the 91.4 hours charged by the applicant. In that regard, it highlights the hours declared by one of the lawyers to become familiarised with the file.
51 Last, the intervener questions whether the research carried out by the junior associate at the beginning of the case did not double the work provided by Ms Henny.
52 Second, it argues that the expenses relating to Ms Henny’s lobbying activities in respect of the prime minister of North Rhine-Westphalia in February 2009, mentioned in the document submitted in annex to the application, were not necessarily incurred for the purpose of the proceedings and are therefore not recoverable.
53 Third, it suggests that the costs relating to the legal authorisation of the applicant’s lawyers to act were similarly not necessary, since they could have easily been avoided from the outset of the case had the applicants’ lawyers exercised the diligence required of them.
54 Fourth, the intervener takes the view that, as the involvement of the experts appointed by the applicant was not required, the hours spent by the applicant’s lawyers studying their expert reports must also be deducted from the recoverable costs.
55 Fifth, it argues that the applicant failed to provide precise information enabling the value of the work carried out by its lawyers to be assessed. In particular, the applicant did not provide any information on the subject of the meetings or the calls which it mentions in the document submitted in annex to its application. The intervener is of the view that, similarly, the applicant does not provide sufficient details on the time spent by its lawyers drafting the application, the reply and its observations.
56 Sixth, the intervener submits that an hourly rate of EUR 250 could be appropriate remuneration only for the services of a particularly experienced professional. It adds that, given the significant amount of hours charged, it seems difficult for the applicant to argue that its lawyers were particularly experienced.
57 Seventh, it argues that the applicant did not indicate why the costs relating to its request for confidential treatment of documents were necessary for the purpose of the proceedings and states, in this regard, that that request was rejected for the most part by the Court. From this the intervener infers a clear misinterpretation of the confidentiality rules on the part of the applicant’s lawyers and considers that it should not have to bear the consequences.
58 Last, the intervener takes the view that the amount claimed by the applicant in relation to the recovery of costs and the taxation of costs proceedings is particularly excessive, since the documents to be prepared for the taxation of costs proceedings are predominantly standardised and drafting them is not difficult.
Findings of the Court
The scope of the order that the Commission and the intervener pay the costs
59 Under Article 87(2) of the Rules of Procedure of 2 May 1991, the unsuccessful party is to be ordered to pay the costs if they have been applied for in the successful party’s pleadings; where there are several unsuccessful parties, the General Court may decide how the costs are to be shared.
60 Thus, where a main party and an intervener are unsuccessful, the Court may decide that the main party alone is to bear the payment of the costs (see, to that effect, judgments of 1 December 2004 in Kronofrance v Commission, T‑27/02, ECR, EU:T:2004:348; of 13 April 2005 in Verein für Konsumenteninformation v Commission, T‑2/03, ECR, EU:T:2005:125; of 1 July 2010 in M6 v Commission, T‑568/08 and T‑573/08, ECR, EU:T:2010:272; and of 28 January 2015 in BSH v OHIM — Arçelik (AquaPerfect), T‑123/14, EU:T:2015:52). The Court may, on the contrary, choose to order the two parties to pay the same costs jointly and severally (see, to that effect, order of 20 May 1987 in Champlor and Others v Commission, 233/86 to 235/86, EU:C:1987:238).
61 In the absence of detailed information on the allocation of the expenses incurred by the successful party, the Court may, where it must rule on the allocation of the costs, not be in a position to assess satisfactorily the scope of the respective responsibilities of the unsuccessful parties. It should thus be considered that, where a judgment contains no guidance on how the costs are to be allocated between a main party and an intervener, both of which have been unsuccessful, the liability for the costs must be allocated in accordance with the respective roles of the unsuccessful parties in the proceedings and correspond in principle to the extent to which each of those unsuccessful parties caused the recoverable expenses to be incurred by the successful party.
62 This approach does not place an excessive burden on the party requesting the reimbursement of its costs, contrary to what the applicant claims. According to settled case-law, each party that requests the reimbursement of its costs is required to provide precise information on the allocation of the sums which it may have spent for the purpose of the proceedings so as to enable a determination to be made as to whether they were necessary. Such provision of information thus enables the Court to distinguish, incidentally, the expenses occasioned by each of the parties ordered to reimburse costs.
63 As the judgment contains no details regarding the scope of the mutual responsibilities of the Commission and the intervener in relation to the liability for costs, it follows from the foregoing that the reimbursement of the costs required of the intervener must be limited to the recoverable expenses incurred by the applicant by reason of its intervention.
The amount of recoverable costs
64 Pursuant to Article 170 of the Rules of Procedure of the General Court, in the event of a dispute concerning the costs to be recovered, the General Court is, on application by the party concerned and after hearing the opposite party, to make an order, from which no appeal is to lie.
65 Under 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. It follows that the recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, second, to those necessary for that purpose (see, by analogy, orders of 9 November 1995 in Ahlström Osakeyhtiö and Others v Commission, C‑89/85 DEP, EU:C:1995:366, paragraph 14, and of 30 November 1994 in British Aerospace v Commission, C‑294/90 DEP, ECR, EU:C:1994:395, paragraph 11). Article 140(b) of the Rules of Procedure therefore concerns only the proceedings before the General Court itself, in other words, the sole contentious phase of the proceedings (see, by analogy, orders of 15 March 1994 in ENU v Commission, C‑107/91 DEP, EU:C:1994:98, paragraph 2, and British Aerospace v Commission, EU:C:1994:395, paragraph 12).
66 It is settled case-law that, in the absence of EU-law provisions laying down fee-scales, the Court must make an unfettered assessment of the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of EU law as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (order of 10 January 2002 in Starway v Council, T‑80/97 DEP, ECR, EU:T:2002:1; see, also, by analogy, order of 29 October 2010 in Celia v Leche Celta, C‑300/08 P‑DEP, EU:C:2010:655, paragraph 14).
67 In this regard, it should be pointed out that the primary consideration for the Court is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings, irrespective of the number of lawyers who may have provided the services in question (orders of 30 October 1998 in Kaysersberg v Commission, T‑290/94 (92), ECR, EU:T:1998:255, paragraph 20; of 15 March 2000 in Enso-Gutzeit v Commission, T‑337/94 (92), ECR, EU:T:2000:76, paragraph 20; and of 28 June 2004 in Airtours v Commission, T‑342/99 DEP, ECR, EU:T:2004:192, paragraph 30).
68 It is in the light of all of those criteria that the amount of the costs recoverable by the applicant should be assessed.
69 In the first place, as regards the economic interests at stake, the Court finds that the applicant had a certain economic interest in the annulment of the Commission’s decision. Although the Court is not in a position to verify the exact amount of aid at issue, owing to the contradictory information provided to it by the parties, it should nevertheless be pointed out that, in the annulled decision, the Commission had declared aid of several tens of millions of euros, which was to benefit an undertaking in competition with the applicant in the paper market, to be compatible with the common market. However, as the Commission correctly asserts, the Court, in the judgment, did not resolve the issue of whether the aid at issue was compatible with the common market, but merely held that the decisive reason why the Commission had taken the view that it could declare the aid at issue compatible with the common market was vitiated by an error of law.
70 In the second place, as regards the importance of the case in terms of EU law, it is stated in the judgment at issue that the Court had to examine for the first time the issue of the thresholds laid down in paragraph 68 of the Guidelines and the Commission’s interpretation of that paragraph.
71 In the third place, as regards the difficulties of the case, first, it should be pointed out that the Commission and the intervener wrongly challenged the admissibility of all of the pleas put forward by the applicant. Nevertheless, it should also be considered that the applicant put forward several arguments challenging the substance of the Commission’s assessment in relation to the compatibility of the aid at issue with the common market and not the safeguarding of its procedural rights. Such considerations were rejected as inadmissible, as the applicant remained unable to establish that the aid at issue was liable substantially to harm its competitive position, and contributed to increasing the complexity of the case beyond what was necessary.
72 Second, it is unusual for such an amount of time to be devoted in the course of the proceedings to the question of the validity of the authorisation of the applicant’s lawyers to act. The applicant’s inability to provide the documented evidence of the validity of its lawyers’ authorisation to act for almost three years appeared to be largely at issue in the lengthy discussion on that point, as the Commission and the intervener correctly submit.
73 Third, with regard to the arguments advanced by the applicant as to whether or not the Commission had experienced serious difficulties when examining the aid and the margin of discretion which it might enjoy in that regard, it must be pointed out that the applicant has not shown that the case was particularly complex. The material which it was able to put forward to prove that the Commission ought to have collected all the relevant information to define the market and to calculate the capacity increase resulting from the contested aid served no use in resolving the dispute. In this regard, it should be stated that the economic expert reports produced by the applicant did not assist the Court in its reasoning.
74 In the fourth place, with regard to the amount of work provided, it should be noted that the difficulty of the legal questions raised, the complexity of the facts and the economic interest of the case justify the devotion by the applicant’s lawyers of a great deal of work to those matters. However, the explanations provided by the applicant in its application for taxation of the costs do not allow the Court to regard all of the expenses reported by the applicant as having been objectively necessary for the purpose of the proceedings.
75 While it follows from the foregoing that the dispute may have called for a great deal of work on the part of the applicant’s advisers, the 610 hours of work carried out by the applicant’s lawyers in respect of the proceedings, for an amount of EUR 222 491, cannot constitute in their entirety necessary expenses within the meaning of Article 140(b) of the Rules of Procedure.
76 First, it is important to note that, according to settled case-law, the ability of the Courts to assess the value of work carried out is dependent on the accuracy of the information provided to them (orders of 8 November 1996 in Stahlwerke Peine-Salzgitter v Commission, T‑120/89 (92), ECR, EU:T:1996:161, paragraph 31; of 25 June 1998 in Altmann and Others v Commission, T‑177/94 (92), T‑377/94 (92) and T‑99/95 (92), ECR — Staff Cases, EU:T:1998:139, paragraph 883; and of 6 March 2003 in Nan Ya Plastics and Far Eastern Textiles v Council, T‑226/00 DEP and T‑227/00 DEP, ECR, EU:T:2003:61, paragraph 35).
77 It is clear, however, that, even though it attributes working time to a ‘telephone call with [S]’, on 20 May 2008, or to a ‘conference call with [S]’, on 20 June 2008, the applicant provides no explanation as to how those activities were necessary for the purposes of the proceedings. As the Commission and the intervener correctly argue, similar observations can be made in relation to many other details listed in the documents submitted by the applicant, such as the mentions of ‘regional aid to [P]’, on 18 June 2008, ‘State aid to [P]’, on 19 June 2008, ‘study letter to [L]’, on 21 July 2008, ‘conference call [S] and [K]’, on 9 February 2009, ‘e-mail [M] and [St]’, on 24 July 2009, or ‘e-mail to [H]’, on 30 September 2009.
78 The lack of diligence on the applicant’s part is also to be seen in the calculation of the amounts which it provided. Thus, for 10 November 2011, the applicant records 2.2 hours of work at the rate of EUR 420 per hour, even though an amount of EUR 1 344 is indicated; likewise, for 11 November 2011, for 6.2 hours of work at the rate of EUR 420 per hour, an amount of EUR 2 940 is indicated.
79 Second, it should be pointed out that at least one of the applicant’s lawyers already had extensive knowledge of the dispute through having assisted the applicant during the administrative phase of the examination of the aid before the Commission. Certain arguments concerning the compatibility, with the internal market, of the aid planned by the German authorities had indeed already been advanced at that stage. This factor is likely to have facilitated, at least in part, the work carried out by the applicant’s lawyers and reduced the time which they had to spend on preparing the application (see, to that effect, orders of 8 November 2001 in Kish Glass v Commission, T‑65/96 DEP, ECR, EU:T:2001:261, paragraph 25; of 6 March 2003 in Nan Ya Plastics and Far Eastern Textiles v Council, cited in paragraph 76 above, EU:T:2003:61, paragraph 43; and Airtours v Commission, cited in paragraph 67 above, EU:T:2004:192, paragraph 29).
80 Third, it follows 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 in Airtours v Commission, cited in paragraph 67 above, EU:T:2004:192, paragraph 52). Therefore, as the Commission and the intervener correctly argue, any remuneration at such a level must be counterbalanced by a strict evaluation of the total number of hours of work necessary. The fees charged by the applicant’s lawyers, ranging between EUR 195 and EUR 490 per hour, may be considered high, since they match those charged at the most prestigious law firms.
81 Fourth, the remuneration of a single lawyer may, in principle, be considered to constitute necessary expenses within the meaning of Article 140(b) of the Rules of Procedure (see, to that effect, order in Kaysersberg v Commission, cited in paragraph 67 above, EU:T:1998:255, paragraph 20). Therefore, although it is important that the Court’s primary consideration be the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings, irrespective of the number of lawyers who may have provided the services in question, the time spent studying the file twice and participating in internal meetings should, as the intervener correctly submits, be discounted (see orders in Kaysersberg v Commission, cited in paragraph 67 above, EU:T:1998:255, paragraph 20; Enso-Gutzeit v Commission, cited in paragraph 67 above, EU:T:2000:76, paragraph 20; and Airtours v Commission, cited in paragraph 67 above, EU:T:2004:192, paragraph 30). It must therefore be acknowledged, as the intervener suggests, that the 91.4 hours charged by the applicant in respect of the preparation for the hearing and of the hearing itself are manifestly excessive and may have been attributable to a lack of coordination between the applicant’s lawyers.
82 Fifth, it cannot be ruled out, in the absence of very precise information on the tasks performed for the purposes of the proceedings, that the involvement of multiple legal representatives might have led to a duplication of their efforts (see, to that effect, order of 30 November 2009 in Bayerische Hypo- und Vereinsbank v Commission, T‑56/02 OP-DEP, EU:T:2009:473, paragraph 54). It is thus possible to doubt the tangible contribution to the proceedings made by the research carried out by a junior associate at the beginning of the case, as correctly asserted by the intervener. In the light of such uncertainty, that expense should be excluded from the recoverable costs.
83 Sixth, it should be pointed out that the expenses resulting from out-of-court activities cannot be claimed by the parties. Accordingly, as the intervener correctly maintains, expenses incurred in the drafting of a letter to the prime minister of North Rhine-Westphalia in February 2009 must be disregarded as costs.
84 Seventh, with regard to the expenses resulting from the questions concerning the authorisation of the applicant’s lawyers to act, it should be pointed out that these cannot be deemed necessary, either, since they could easily have been avoided, had the applicant exercised the diligence incumbent upon it from the date on which the application was lodged.
85 Eighth, in relation to the expenses pertaining to the request for confidential treatment of documents made by the applicant, those expenses cannot be regarded as having been necessary for the purposes of the proceedings. It appears that the essential part of that request was rejected by the Court and that the information in respect of which confidential treatment had been granted was in support of arguments practically all of which were rejected as inadmissible. Therefore, the expenses incurred in responding to the supplementary statement in intervention, which the intervener had submitted following the Court’s confidentiality decision, also cannot be regarded as recoverable.
86 As regards the fees of the applicant’s lawyers, it must be noted that, according to settled case-law, the Court is not empowered to tax the fees payable by the parties to their own lawyers, but to determine the amount of those fees which may be recovered from the party which has been ordered to pay the costs. When ruling on an application for taxation of costs, the Court is therefore not obliged to take account of any national scale of lawyers’ fees or of any agreement in that regard between the party concerned and his agents or advisers (orders in Stahlwerke Peine-Salzgitter v Commission, cited in paragraph 76 above, EU:T:1996:161, paragraph 27, and Starway v Council, cited in paragraph 66 above, EU:T:2002:1, paragraph 26).
87 In the present case, the fees charged by the applicant’s lawyers appear to be consistent with the level of complexity of the case. Thus, a rate such as that charged for the work carried out by Professor Ottervanger, namely EUR 490 per hour, is indeed consistent with that of a particularly experienced professional (see, to that effect, order in Airtours v Commission, cited in paragraph 67 above, EU:T:2004:192, paragraph 52). The invoicing of Ms Henny’s work, namely at a rate of between EUR 295 and EUR 420 per hour, also corresponds to the fees generally charged for an associate lawyer. The arguments put forward by the Commission and the intervener on the excessive nature of the fees of the applicant’s lawyers must therefore be rejected.
88 In the fifth place, the applicant seeks reimbursement of EUR 29 280 corresponding to economic expertise fees. In this regard, according to settled case-law, given the essentially economic nature of the assessments carried out by the Commission within the framework of the State aid control procedures, the involvement of economic advisers or experts in addition to the work of legal counsel may, sometimes, prove necessary in cases involving decisions on those matters and thus give rise to costs that may be recovered pursuant to Article 140(b) of the Rules of Procedure (see order of 19 December 2006 in WestLB v Commission, T‑228/99 DEP, EU:T:2006:405, paragraph 78 and the case-law cited).
89 In order for that to be the case, such involvement must be objectively necessary for the purposes of the proceedings. Such may in particular be the case where the expert 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 in WestLB v Commission, cited in paragraph 88 above, EU:T:2006:405, paragraph 79).
90 That is not, however, the position in the present case, since the expert report produced by the applicant did not play any decisive role in the reasoning adopted by the Court. The entirety of the sums spent by the applicant in economic expertise fees must therefore be excluded from the recoverable costs. Since the economic experts’ involvement was not required, the time spent on that expertise by the applicant’s lawyers must likewise not, as the intervener correctly maintains, be taken into account.
91 In the sixth place, with regard to the expenses incurred in respect of the present proceedings, which the applicant estimates as EUR 7 840, it should be pointed out that the Court, when fixing the amount of the recoverable costs, takes into account all circumstances of the case until the moment of the adoption of the order on the taxation of costs. It must thus be noted that the documents to be prepared in taxation of costs proceedings are largely standardised and present no legal or technical difficulty (see, by analogy, order of 10 October 2013 in OCVV v Schräder, C‑38/09 P-DEP, EU:C:2013:679, paragraph 35). The amount of EUR 7 840 sought by the applicant therefore appears to be manifestly excessive.
92 In the light of all of the foregoing considerations, the costs recoverable by the applicant in the case in the main proceedings from the Commission will be fairly assessed by setting their amount at EUR 79 170, namely EUR 30 450 in respect of the drafting of the application, EUR 29 300 in respect of the drafting of the reply, EUR 1 820 in respect of the answers to the questions of the Court, EUR 17 600 in respect of the preparation for the hearing and the hearing itself, and at EUR 3 000 in respect of the expenses incurred in the present proceedings.
93 Similarly, all the costs recoverable by the applicant in the case in the main proceedings from the intervener will be fairly assessed by setting their amount at EUR 19 520, namely EUR 17 520 in respect of the observations on the statement in intervention and the supplementary statement in intervention, EUR 2 000 in respect of the preparation for the hearing and the hearing relating to the intervention, and at EUR 920 in respect of the expenses incurred in the present proceedings.
On those grounds,
THE GENERAL COURT (Sixth Chamber)
hereby orders:
1. The total amount of the costs to be reimbursed by the European Commission to Smurfit Kappa Group plc is fixed at EUR 82 170.
2. The total amount of the costs to be reimbursed by Propapier PM2 GmbH to Smurfit Kappa Group plc is fixed at EUR 20 440.
Luxembourg, 9 September 2015.
E. Coulon | | S. Frimodt Nielsen |