ORDER OF THE COURT OF FIRST INSTANCE (Second Chamber)
4 November 2008 (*)
(Taxation of costs)
In Case T‑303/04 DEP,
Evropaїki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by N. Korogiannakis, lawyer,
applicant,
v
Commission of the European Communities, represented by L. Parpala and E. Manhaeve, acting as agents,
defendant,
APPLICATION for taxation of costs pursuant to the order of the Court of 17 November 2006 in Case T‑303/04 Evropaїki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE v Commission, not published in the ECR,
THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Second Chamber),
composed of I. Pelikánová, President, K. Jürimäe (Rapporteur) and S. Soldevila Fragoso, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 29 July 2004, the applicant brought an action for annulment of award decisions made in the context of the call for tender PO/2003/192 (ESP‑DIMA) (Case T‑303/04). On the same date a request for an expedited procedure was lodged.
2 Also on 29 July 2004, the defendant made an application for interim measures (Case T‑303/04 R).
3 On 23 September 2004, an application for the Commission to produce a number of documents was lodged.
4 By Order of the President of the Court of First Instance of 10 November 2004, the application for interim measures was dismissed. The order on the costs was reserved.
5 A second application for interim measures was lodged with the Registry of the Court of First Instance on 22 November 2004 (Case T‑303/04 R-II) and in turn dismissed by Order of the President of the Court of First Instance of 22 December 2004. The order on the costs was reserved.
6 By letter of the Court of 26 June 2006, the parties were informed that the date for the oral procedure was fixed for 12 October 2006.
7 By letter of the Court of 13 July 2006, both the Commission and the applicant were requested to reply to a number of written questions. The Commission’s reply was lodged with the Court on 4 September 2006.
8 The Report for the Hearing was sent to the parties on 15 September 2006.
9 By letter lodged at the Court Registry on 11 October 2006, the applicant informed the Court of First Instance, in accordance with Article 99 of the Rules of Procedure of the Court of First Instance, that it wished to discontinue the proceedings. It requested that each party be ordered to bear its own costs.
10 By letter of 18 October 2006, the Commission informed the Court that it did not oppose the applicant’s discontinuance but requested that the applicant should bear its own costs and those incurred by the Commission, including the costs of its external counsel. In this letter, the Commission also denied that any amicable settlement existed between the parties.
11 By Order of the President of the Fifth Chamber of the Court of First Instance of 17 November 2006, the applicant was ordered to bear its own costs and the costs incurred by the Commission in the main case as well as in the two interim measures cases.
12 By letter of 20 December 2006, the Commission informed the applicant’s counsel that its costs in relation to Cases T‑303/04, T‑303/04 R and T‑303/04 R‑II amounted to EUR 22 290, representing EUR 300 in respect of the Commission’s administrative expenses and EUR 21 990 in respect of the fees charged by the Commission’s external counsel.
13 In a letter to the Commission of 12 February 2007, the applicant’s counsel stated that he considered the fees to be exorbitant and requested an exact breakdown of the figures.
14 On 28 February 2007, the Commission wrote to the applicant’s counsel and provided an overview of the services rendered by its external counsel, the range of hourly rates applied and the total amount of working hours charged to the Commission.
15 By letter of 8 June 2007, applicant’s counsel repeated its request for postponement of the payment deadline until receiving justification regarding the amount claimed.
16 The Commission replied by letter of 11 June 2007, sending a copy of its letter of 28 February 2007.
17 By letter of 15 June 2007, applicant’s counsel responded to the Commission’s letter of 28 February 2007, which he claimed to have received for the first time only with the Commission’s letter of 11 June 2007. He repeated his view that the fees for the Commission’s external counsel were exorbitant.
18 After sending a holding reply on 21 June 2007, the Commission sent a letter on 29 June 2007, in which it advised the applicant’s counsel that its Accounting Officer would proceed with the annulment of the set-off that had been executed. With regard to the substance of the Commission’s claim, reference was made to the Commission’s previous correspondence, adding that the average hourly rate paid to the Commission’s counsel amounts to EUR 128.50. The applicant was given two weeks to state its final position regarding the payment of the Commission’s costs.
19 On 5 November 2007, the Commission sent a registered letter to the applicant’s counsel, stating that, failing a positive answer to the request for payment within two weeks, the Commission would file a request for taxation.
20 No agreement having been reached between the parties on the amount of recoverable costs, the Commission brought the present action under Article 92 of the Rules of Procedure of the Court of First Instance.
21 Following the change in the composition of the chambers of the Court of First Instance with effect from 13 September 2004, the Judge-Rapporteur has been assigned to the Second Chamber. The present case has thus also been assigned to that chamber.
Law
Arguments of the parties
22 The Commission submits that the total amount of costs it incurred in connection with the proceedings before the Court is EUR 22 290. That amount is made up of EUR 300 in respect of the Commission’s administrative expenses and EUR 21 990 in respect of the fees charged by the Commission’s external counsel. The Commission takes the view that said amount is extremely reasonable having regard to the criteria set out by the Court.
23 First, as regards the purpose and nature of the proceedings, their significance from the point of view of Community law and the difficulties presented by the cases, the Commission submits that both the case in the main proceedings as well as the two requests for interim measures were highly complex from a factual, technical and economic point of view. Moreover, various procedural issues had to be appropriately dealt with.
24 Second, as regards the volume of work done, the Commission states that in the three sets of proceedings its external counsel has drafted, discussed with the Commission’s agents and services, and finalised 114 pages of written submissions in 7 different documents. For all services provided by the Commission’s lawyer and his associates, a total of 136 hrs 22 mins billable working hours was charged to the Commission at hourly rates ranging from EUR 80 to EUR 350, corresponding to an average hourly rate of EUR 161.43.
25 Third, as regards the financial interests of the parties to the proceedings, the Commission submits that these were considerable as the award decision challenged relates to a multi-million contract for the provision of external services for information systems.
26 The applicant replies that, first, it does not question the amount of EUR 300 requested by the Commission for its administrative costs. The current case is limited to the amount of EUR 21 990, claimed by the Commission for the fees of its external counsel.
27 Second, the applicant considers that, by limiting the arguments in its application to the amount of the fees it has actually paid and to the description of the method followed by its external counsel to charge those fees, the Commission has failed to explain whether or not the costs it claimed were necessary for the purpose of the proceedings before the Court of First Instance.
28 Third, the applicant recalls that, when ruling on an application for taxation of the fees recoverable from a party ordered to pay the costs, the Court is not obliged to take account of any national scale of lawyers’ fees or any agreement in that regard between a party and his agents or advisers. The taxation of such fees should be fixed on the basis of the complexity of the case, and the amount of effort needed to prepare the written submissions and the hearings. In this context, the applicant believes that, on the basis of a pragmatic approach according to which cases could be divided into ‘simple’, ‘medium’ and ‘complex’, considering their factual and legal content, and to ‘short’, ‘average’ and ‘long’, depending on the time needed to prepare for court, Case T‑303/04 R could be considered as ‘complex and short’, Case T‑303/04 R II as ‘simple and short’, and Case T‑303/04 as ‘simple and average’.
29 Fourth, as, overall, only procedural issues and specific points of public procurement law were raised in the context of a very simple call for tenders that did not require the analysis of long documents and arguments of a mixed technical and legal order, the number of hours charged by the external counsel of the Commission is well above acceptable standards. In the applicant’s opinion, an amount of EUR 12 000, corresponding to a total of 120 hours at an average hourly rate of EUR 100, would be sufficient to cover the necessary work involved in the handling of the case.
30 Fifth, the applicant states that the Commission has failed to explain why, notwithstanding the present case’s low degree of complexity, it considered the involvement of outside counsel necessary.
31 Sixth, the applicant argues that there is no foundation in the case-law for taking into account the financial interest of the case for the calculation of fees of external counsel. In any event, the financial interest would not have been taken into consideration when counsel was chosen, nor when counsel calculated his fees.
Findings of the Court
32 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. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court of Justice and the Court of First Instance, and, second, to those which were necessary for that purpose (orders of the Court of First Instance in Case T‑38/95 DEP Groupe Origny v Commission [2002] ECR II‑217, paragraph 28, and of 18 April 2006 in Case T‑132/01 DEP Euroalliages and Others v Commission, not published in the ECR, paragraph 29).
33 According to a consistent line of decisions, the Community judicature is not empowered to tax the fees payable by the parties to their own lawyers, but it 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, the Court is not obliged to take account of any national scale of lawyers’ fees or any agreement in that regard between the party concerned and his agents or advisers (orders of the Court of First Instance in Case T‑120/89 DEP Stahlwerke Peine-Salzgitter v Commission [1996] ECR II‑1547, paragraph 27; in Case T‑80/97 DEP Starway v Council [2002] ECR II‑1, paragraph 26; and of 3 October 2006 in Case T‑74/00 DEP Artegodan v Commission, not published in the ECR, paragraph 42).
34 In the absence of Community provisions laying down fee-scales, the Court must make un 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 Community law as well as the difficulties presented by the case, the amount of work generated by the proceedings before the Court for the agents or advisers involved, and the financial interests which the parties had in the proceedings (orders of the Court of First Instance in Starway v Council, paragraph 27, and of 20 December 2004 in Case T‑123/00 DEP Thomae v Commission, not published in the ECR, paragraph 22).
35 It is on the basis of those factors that the amount of the recoverable costs must be determined.
36 As to, firstly, the costs claimed by the Commission for its administrative costs, the Court notes that the amount of EUR 300 claimed by the Commission is not called into question by the applicant.
37 As to, secondly, the costs claimed by the Commission to cover the fees paid to its external counsel, it should be noted first, as regards the purpose and nature of the proceedings, their significance from the point of view of Community law and the difficulties presented by the three cases, that, contrary to what the applicant alleges, the case in the main proceedings as well as the two cases concerning the requests for interim measures were all highly complex from a factual as well as technical point of view. The facts, which covered a period from 16 March 2001 to 4 August 2004 and involved voluminous and detailed documentation, which the parties annexed to their submissions, required an in-depth analysis of, inter alia, the exact distinction between, on the one hand, the various lots of the ESP call for tender launched by the Commission in 2001, and, on the other hand, the ESP-DIMA call for tender launched by the Commission in 2003. Moreover, it is to be noted that in the three proceedings a whole range of procedural issues had to be appropriately dealt with, ranging from questions on admissibility and the conditions for expedited procedures and interim measures to issues relating to the production of documents. As to the substance, the pleas raised in the main proceedings required the development of particular aspects of public procurement law.
38 Second, as regards the amount of the work generated by the proceedings for the Commission’s counsel, it should be observed that due to the introduction by the applicant of two requests for interim measures as well as a request in the context of the main proceedings for an expedited procedure, the Commission and its external counsel had to draft an unusually high number of detailed written submissions. Moreover, the technical nature of the subject matter as well as the complexity of the issues challenged by the applicant further increased the amount of work generated by the case.
39 Third, as regards the financial interests of the parties in the proceedings, it should be noted that these were considerable, as the award decision challenged relates to a lot with a contract value of EUR 121 698 702.40. In this context, the fact that this factor was not explicitly taken into account when counsel was chosen, nor by counsel when calculating his fees, is irrelevant, given that, contrary to what the applicant alleges, the financial interests which the parties had in the proceedings is, according to a consistent line of decisions, a factor to be taken into account by the Court when it makes its unfettered assessment of the facts of the case (see the case-law cited in paragraph 34 above).
40 Fourth, it is open to the Commission to entrust the protection of its interests to a specialised law firm so as to obtain the services of more experienced lawyers, while entrusting the more time-consuming work to lawyers charging lower fees. Nevertheless, 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 the Court of First Instance in Joined Cases T‑226/00 DEP and T‑227/00 DEP Nan Ya Plastics and Far Eastern Textiles v Council [2003] ECR II‑685, paragraph 44; of 29 October 2004 in Case T‑77/02 DEP Schneider Electric v Commission, not published in the ECR, paragraph 58; and Artegodan v Commission, paragraph 52).
41 In the light of all the foregoing considerations, the Court considers that the amount of EUR 21 990, corresponding to a total of 136 hrs 22 mins working hours at hourly rates ranging from EUR 80 to EUR 350, appears to be objectively necessary for the purpose of the proceedings before the Court and that this amount is therefore a fair and correct assessment of all the costs recoverable by the Commission in relation to the services provided by its external counsel.
42 This assessment cannot be called into question by the other arguments of the applicant.
43 First, contrary to what the applicant alleges, the Commission, by limiting its arguments to the amount of fees actually paid and to the description of the method followed by the external counsel to charge those fees, has not failed to explain whether or not the costs claimed by it were necessary for the purposes of the proceedings,. As the ability of the Community judicature to assess the value of the work carried out is dependent on the accuracy of the information provided (orders in Stahlwerke Peine-Salzgitter v Commission, paragraph 31, and in Schneider Electric v Commission, paragraph 59), it must be held that the detailed information put forward as regards all the relevant factors as defined by the Court in its case-law enables both the applicant and the Court to determine the remuneration of lawyers necessarily incurred by the Commission for the purpose of the various proceedings.
44 Second, as regards the alleged duty of the Commission to justify the involvement of an outside counsel, it should be recalled that, according to a consistent line of decisions, Community institutions are free to call on the services of an external counsel. Contrary to what the applicant alleges, the remuneration of such counsel therefore falls within the notion of expenses necessarily incurred for the purpose of the proceedings (order of the Court of First Instance in Case T‑61/00 DEP APOL v Commission, not published in the ECR, paragraph 14 and case-law cited).
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber)
hereby orders:
The total amount of the costs to be paid by Evropaїki Dynamiki – Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE is fixed at EUR 22 290, which includes an amount of EUR 300 to cover the Commission’s administrative expenses.
Luxembourg, 4 November 2008.