ORDER OF THE COURT (Tenth Chamber)
21 May 2024 (*)
(Taxation of costs)
In Case C‑663/17 P‑DEP,
APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court of Justice, brought on 2 May 2023,
European Central Bank (ECB), represented by C. Hernández Saseta and E. Koupepidou, acting as Agents,
applicant,
v
Trasta Komercbanka AS, established in Riga (Latvia),
Ivan Fursin, residing in Kyiv (Ukraine),
C & R Invest SIA, established in Riga,
Figon Co. Ltd, established in Nicosia (Cyprus),
GCK Holding Netherlands BV, established in Amsterdam (Netherlands),
Rikam Holding SA, established in Luxembourg (Luxembourg),
represented by O. Behrends, Rechtsanwalt,
Estate of Mr Buimisters, represented by its guardian/trustee Mr Bērziņš,
defendants,
THE COURT (Tenth Chamber),
composed of Z. Csehi, President of the Chamber, M. Ilešič and D. Gratsias (Rapporteur), Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
after hearing the Advocate General,
makes the following
Order
1 The subject matter of this action is the taxation of the costs incurred by the European Central Bank (ECB), first, in the context of Cases C‑663/17 P and C‑665/17 P and, second, in connection with the proceedings at first instance in Case T‑247/16 relating to the action brought by Mr Ivan Fursin, Mr Igors Buimisters, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA (‘the shareholders of Trasta Komercbanka’) seeking annulment of ECB Decision ECB/SSM/2016 – 529900WIP0INFDAWTJ81/1 WOANCA-2016-0005 of 3 March 2016 withdrawing the authorisation granted to Trasta Komercbanka AS (‘the contested decision’).
2 By application lodged at the Registry of the General Court on 13 May 2016, Trasta Komercbanka and the shareholders of Trasta Komercbanka brought an action for annulment of the contested decision. The ECB, by separate document, raised a plea of inadmissibility regarding the action. By order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623), the General Court, first, held that there was no need to adjudicate on the action in so far as it was brought by Trasta Komercbanka and, second, rejected the plea of inadmissibility in so far as it concerned the shareholders of Trasta Komercbanka.
3 Appeals against that order were brought before the Court of Justice by the ECB, in Case C‑663/17 P, by the European Commission, in Case C‑665/17 P, and by Trasta Komercbanka and the shareholders of Trasta Komercbanka, in Case C‑669/17 P.
4 By judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), the Court of Justice, first, dismissed as inadmissible the appeal in Case C‑669/17 P, in so far as it had been brought by the shareholders of Trasta Komercbanka, and, second, set aside the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623). Ruling itself on the plea of inadmissibility raised by the ECB, it dismissed as inadmissible the action brought by the shareholders of Trasta Komercbanka and referred the case back to the General Court for a ruling on the action brought by Trasta Komercbanka. The Court of Justice ordered, first, Trasta Komercbanka and the shareholders of Trasta Komercbanka to bear their own costs and to pay those incurred by the ECB in connection with the appeals in Cases C‑663/17 P and C‑665/17 P and, second, the shareholders of Trasta Komercbanka to bear their own costs and to pay those incurred by the ECB in connection with the proceedings at first instance relating to the action brought by those shareholders. It reserved the costs in Case C‑669/17 P.
5 Since no agreement was reached between the ECB, Trasta Komercbanka and the shareholders of Trasta Komercbanka on the amount of recoverable costs relating to the appeals in Cases C‑663/17 P and C‑665/17 P and to the proceedings at first instance in Case T‑247/16 relating to the action brought by those shareholders, the ECB, pursuant to Article 145 of the Rules of Procedure of the Court of Justice, made the present application.
Forms of order sought
6 The ECB requests the Court to fix the amount of recoverable costs at EUR 162 256.72 and to confirm their allocation between Trasta Komercbanka, in the total amount of EUR 7 032.09, and the shareholders of Trasta Komercbanka, in the amount of EUR 25 870.77 each.
7 It is apparent from the case file that one of the shareholders of Trasta Komercbanka, Mr Buimisters, died on 19 September 2021 and that the obligation to reimburse the costs incurred by the ECB in accordance with the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923) forms part of the estate of Mr Buimisters, which, in accordance with the Latvian law applicable to the succession to his estate, has legal personality and is represented by its guardian, on whom the present application for taxation of costs has been served. The estate of Mr Buimisters did not submit any observations.
8 Trasta Komercbanka, Mr Ivan Fursin, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA (‘Trasta and Others’) contend that the Court should, first, dismiss the application for taxation of the costs incurred by the ECB and, second, order the ECB to bear its own costs and to pay those incurred by Trasta Komercbanka in respect of Case C‑669/17 P.
Arguments of the parties
9 The ECB submits that it entered into a framework agreement with a law firm which assisted it (‘the law firm’), inter alia, in Cases C‑663/17 P, C‑665/17 P, C‑669/17 P and T‑247/16, and considers that it is entitled to recover the fees and expenses paid to that law firm in respect of, first, the proceedings relating to Cases C‑663/17 P and C‑665/17 P and, second, those relating to Case T‑247/16.
10 In the first place, as regards Cases C‑663/17 P and C‑665/17 P, the ECB submits that the total amount of the fees and expenses invoiced by the law firm in respect of the proceedings in Cases C‑663/17 P, C‑665/17 P and C‑669/17 P amounts to EUR 76 375.47, plus travel expenses in the amount of EUR 800 relating to the participation of its lawyers and its own agents in the hearing. However, the law firm granted it a rebate in the form of a credit note for EUR 5 000 from which, however, EUR 1 312.50 was deducted in respect of business expenses, resulting in a net reduction of EUR 3 687.50. According to the ECB, in so far as that rebate concerns, in part, fees and expenses relating to Case T‑247/16 as well as another case unrelated to the present proceedings, the part of the rebate applicable to the expenses and fees relating to Cases C‑663/17 P, C‑665/17 P and C‑669/17 P, calculated in proportion to the amount of work invoiced for each of the cases concerned, amounts to EUR 3 338.48 and, consequently, the total amount of costs incurred by the ECB in respect of the proceedings in those three cases should be reduced to EUR 73 836.99.
11 According to the ECB, those three cases overlapped in substance and required a similar amount of work, in particular as regards the preparation of the oral part of the procedure. The ECB therefore considers that the costs which it incurred in connection with Cases C‑663/17 P and C‑665/17 P correspond to two thirds of the amount of EUR 73 836.99, namely EUR 49 224.66. Accordingly, each of the persons ordered to pay the costs incurred by the ECB in connection with Cases C‑663/17 P and C‑665/17 P should pay the ECB EUR 3 516.05 for each of those two cases, or EUR 7 032.09 for both of those two cases.
12 In the second place, as regards Case T‑247/16, the ECB states that the total amount of the fees and expenses invoiced by the law comes to EUR 132 177.46, corresponding to EUR 39 448.29 for the work carried out in connection with the analysis of the admissibility of the action and EUR 92 729.17 for the work carried out in relation to the substance of the case. However, a part of the rebate referred to in paragraph 10 of the present order, namely EUR 306.72, reduces those fees and expenses, so that the total fees and expenses incurred by the ECB in connection with the proceedings in Case T‑247/16 amount to EUR 131 870.74.
13 In so far as the action in Case T‑247/16 was brought by seven applicants and the Court of Justice, by judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), ordered six of them, namely the shareholders of Trasta Komercbanka, to pay the costs incurred by the ECB in respect of that case, the ECB considers that it is entitled to recover six sevenths of the amount of EUR 131 870.74, namely EUR 18 838.68 from each of the shareholders of Trasta Komercbanka.
14 In the third place, the ECB is of the view that the amount of work carried out by the law firm and the hourly rates applied by that firm’s lawyers must be regarded as necessary and reasonable. The cases to which the present application relates raised new, fundamental and complex legal issues relating to the conditions under which an action for annulment may be brought against a decision of the ECB withdrawing a credit institution’s authorisation. Indeed, such a decision of the ECB was challenged before the EU Courts for the first time in those cases.
15 The ECB points out, in addition, that the fees and expenses invoiced by the law firm include the working time needed to review the ‘extensive application’ and its annexes, various meetings with ECB staff members, the review of voluminous background documentation as well as preparation for the hearing, which included the preparation of the opening statement and numerous briefing documents.
16 In the fourth place, the ECB states that it apportioned the costs it incurred proportionately among the various defendants and asks the Court to validate that apportionment in order to ensure legal certainty.
17 For their part, Trasta and Others request from the Court, in the first place, ‘a cost order’ with respect to the appeal in Case C‑669/17 P, in so far as it was brought by Trasta Komercbanka. They claim that, in the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), the Court of Justice had reserved its decision on costs, which is no longer necessary since the proceedings following referral back to the General Court have since been completed. Accordingly, the ECB should be ordered to bear its own costs and to pay those incurred by Trasta Komercbanka in connection with the appeal brought by the latter in Case C‑669/17 P.
18 In the second place, Trasta and Others submit that, since the ECB’s appeal in Case C‑663/17 P was identical to that of the Commission in Case C‑665/17 P, the ECB benefited from the Commission’s support and did not have to carry out an in-depth legal analysis.
19 In the third place, Trasta and Others submit that the legal issues raised in those appeals were not of equal importance. First of all, the main legal analysis, carried out by all the parties to those appeals, relates to the issue of the continued power of representation of the lawyer initially designated to represent Trasta Komercbanka, which explains why Cases C‑663/17 P, C‑665/17 P and C‑669/17 P were allocated to the Grand Chamber and a hearing was organised. Next, the issue of whether the shareholders of Trasta Komercbanka could participate in the proceedings was secondary in nature. Indeed, those shareholders filed as applicants in Case T‑247/16 purely as a precaution, in view of the ECB’s refusal to accept the continued representation of Trasta Komercbanka by the lawyer initially appointed to represent it.
20 The fees and expenses invoiced by the law firm relate exclusively to the work carried out by that firm in connection with the issue of the representation of Trasta Komercbanka, on which the latter was successful, which explains why, in particular, the ECB is not seeking reimbursement of fees and expenses incurred in order to obtain advice under Latvian law from Latvian lawyers.
21 Furthermore, Trasta and Others note that, in the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), the Court of Justice ruled exclusively on questions relating to the admissibility of the action in Case T‑247/16, with the result that costs incurred in relation to the substance of that case are not recoverable.
22 In the fourth place, Trasta and Others submit ‘merely as a precaution’ additional considerations according to which, first, costs incurred as a result of unlawful conduct are not recoverable. According to Trasta and Others, in the present case, the ECB cannot claim reimbursement of the costs which it incurred since they arise from the ECB’s unlawful refusal to acknowledge the continued power of representation of the lawyer initially appointed to represent Trasta Komercbanka.
23 Second, the costs incurred by the ECB in relation to the question of the standing of the shareholders of Trasta Komercbanka are not recoverable either, since the inclusion of those shareholders as applicants in the action brought before the General Court did not give rise to any additional work for the ECB. According to Trasta and Others, the question as to whether a bank whose authorisation has been withdrawn may itself challenge that withdrawal or whether that challenge lies with the shareholders of that bank would, in any event, have had to be examined in Case T‑247/16 brought before the General Court and in the appeals brought before the Court of Justice, even if the shareholders of Trasta Komercbanka had not brought an action before the General Court. Indeed, the General Court rejected the retention of the power of representation of Trasta Komercbanka’s lawyer, on the ground that it was possible for the shareholders of Trasta Komercbanka to challenge the withdrawal of the bank’s authorisation, whereas the Court of Justice reached the opposite conclusion and did not, therefore, accept that those shareholders had standing to bring proceedings.
24 In addition, according to Trasta and Others, the number of shareholders of Trasta Komercbanka that brought the action is irrelevant, since they were treated as a separate category of applicants. The ECB makes a logical error by starting from the premiss that the workload increases with the number of applicants involved.
25 Third, Trasta and Others submit that the ECB’s request is based on another incorrect premiss, that each of the appeals in Cases C‑663/17, C‑665/17 and C‑669/17 involved an equal workload for the ECB, further to that necessary for the other appeals, whereas, for all the parties, all the work carried out in the context of the appeals brought before the Court related to the question of the representation of Trasta Komercbanka.
26 Fourth, Trasta and Others consider that the ECB has not appropriately substantiated or specified the costs it incurred. Large parts of its application are obscure, in particular the part concerning the rebate granted by the law firm. In reality, the ECB is asking the Court to exempt it from the obligation to justify in a specific and precise manner the costs which it seeks to recover. However, it is not for the Court to carry out the work of the ECB and the imprecise nature of its application should lead to it being dismissed.
27 Fifth, Trasta and Others rely on the principle of equality of arms. In so far as the ECB has always insisted that a minimal representation of Trasta Komercbanka on a pro bono basis, both in Case T‑247/16 brought before the General Court and in the appeals brought before the Court of Justice, was sufficient, it cannot be accepted that it was justified in having recourse to external lawyers to represent it.
Findings of the Court
Admissibility
28 In its application for taxation of costs, the ECB set out the subject matter and nature of the cases concerned, their significance from the point of view of EU law and their degree of difficulty. In addition, it indicated the precise amounts that it had to pay to the law firm and submitted, as an annex to its application, the invoices issued by that law firm, which provide a detailed overview of the hours worked, the hourly rates applied and the nature of the work carried out. In those circumstances, contrary to what Trasta and Others submit, in essence, by their arguments summarised in paragraph 26 of the present order, the application for taxation of costs is admissible (see, to that effect, order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraphs 25 and 26).
29 However, it is apparent from Article 145(1) of the Rules of Procedure that the subject matter of proceedings for taxation of costs is the determination of the amount of recoverable costs and not the apportionment of those costs between several parties ordered to pay them, bearing in mind that, in the context of an appeal, where a number of parties are ordered to pay the costs they are ordered to do so jointly and severally (judgments of 22 December 1993, Pincherle v Commission, C‑244/91 P, EU:C:1993:950, paragraph 38, and of 21 June 2001, Moccia Irme and Others v Commission, C‑280/99 P to C‑282/99 P, EU:C:2001:348, paragraph 110).
30 Accordingly, the ECB’s head of claim by which it asks the Court to ‘confirm’ the apportionment of the recoverable costs between several parties ordered to pay the costs must be rejected as inadmissible.
31 In the light of the subject matter of proceedings for taxation of costs recalled in paragraph 29 of the present order, Trasta and Others’ request for an order that the ECB pay the costs incurred by Trasta Komercbanka in connection with Case C‑669/17 P is also inadmissible.
32 In that regard, it should be borne in mind, as Trasta and Others acknowledge, that, in the present case, the Court decided to reserve the costs incurred by Trasta Komercbanka in Case C‑669/17 P.
33 Indeed, under Article 137 of the Rules of Procedure, applicable to appeal proceedings by virtue of Article 184(1) of those rules, a decision as to costs is to be given in the judgment or order which closes the proceedings. Article 184(2) of those rules, for its part, provides that, where the appeal is unfounded or where the appeal is well founded and the Court itself gives final judgment in the case, the Court is to make a decision as to the costs.
34 It follows that, where the appeal is well founded and the Court of Justice, after setting aside the decision of the General Court, decides, in accordance with the first paragraph of Article 61 of the Statute of the Court of Justice of the European Union, to refer the case back to the General Court, it is not for the Court of Justice, but for the General Court, to decide on the costs of the proceedings, since it is the order or judgment adopted by the General Court after referral back to the General Court which closes the proceedings.
35 Moreover, it should be added that, contrary to what Trasta and Others appear to consider, the General Court ruled on costs in the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), which brought an end to the dispute between the ECB and Trasta Komercbanka, ordering each party to bear its own costs.
Substance
36 Under Article 144(b) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) of those rules, ‘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.
37 It is clear from the wording of Article 144(b) that the remuneration of a lawyer is one of the ‘expenses necessarily incurred’, within the meaning of that provision, and that recoverable costs are confined to the expenses necessarily incurred for the purposes of the proceedings (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 28 and the case-law cited).
38 It should also be recalled that the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but rather may determine the amount of those fees to be recovered from the party ordered to pay the costs. To that end, the Courts of the European Union are not obliged to take account of any national scales of lawyers’ fees (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 29 and the case-law cited).
39 In the absence of provisions of EU law laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the subject matter and nature of the proceedings, their significance from the point of view of EU law as well as the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest which the parties had in the proceedings (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 30 and the case-law cited).
40 Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the delivery of the order on the taxation of the costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 31 and the case-law cited).
41 It is in the light of those considerations that the amount of the costs recoverable by the ECB in connection, first, with Cases C‑663/17 P and C‑665/17 P and, second, with the proceedings at first instance relating to the action brought by the shareholders of Trasta Komercbanka in Case T‑247/16 must be assessed.
Costs in Cases C‑663/17 P and C‑665/17 P
42 As regards the recoverability of the costs incurred by the ECB, contrary to the latter’s contention, it cannot be presumed that the recoverable costs in respect of Cases C‑663/17 P and C‑665/17 P correspond to two thirds of the fees and expenses that were invoiced by the law firm in respect of those two cases and Case C‑669/17 P. In the light of the considerations set out in paragraphs 36 to 39 of the present order, the Court cannot proceed on the basis of presumptions or speculation, but must, first, identify the proportion of the fees and expenses invoiced by that law firm which correspond to the work carried out in respect of Cases C‑663/17 P and C‑665/17 P and then, second, determine the amount of those fees and expenses which must be regarded as having been ‘necessary’ within the meaning of Article 144(b) of the Rules of Procedure and, therefore, as being recoverable from the parties ordered to pay the costs incurred by the ECB in connection with those two cases.
43 It should be recalled, in that regard, that the appeals in Cases C‑663/17 P and C‑665/17 P, on the one hand, and the appeal in Case C‑669/17 P, on the other, related to separate parts of the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623).
44 More specifically, the first two appeals mentioned in the preceding paragraph related to point 2 of the operative part of that order as well as the grounds of that order which constituted the essential basis for it. By that point of the operative part of that order, the General Court rejected the plea of inadmissibility regarding the action brought against the contested decision by the shareholders of Trasta Komercbanka.
45 By contrast, the appeal in Case C‑669/17 P concerned point 1 of the operative part of the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623), and the grounds constituting the essential basis for it. By that point of the operative part of that order, the General Court held that there was no need to adjudicate on the action brought by Trasta Komercbanka against the contested decision.
46 It should also be recalled that, as is apparent from the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 42), Cases C‑663/17 P, C‑665/17 P and C‑669/17 P were joined only for the purposes of the oral part of the procedure and the judgment, with the result that the costs incurred by the ECB in connection with the written part of the procedure, which was separate for each of those cases, are easily identifiable. Those costs are recoverable in so far as they can be regarded as ‘essential’ within the meaning of Article 144(b) of the Rules of Procedure.
47 Moreover, it should be borne in mind that it is apparent from the first paragraph of Article 19 of the Statute of the Court of Justice of the European Union that the EU institutions are, as regards the manner in which they intend to be represented or assisted before the Court, free to decide whether they will have recourse to the assistance of a lawyer or to appoint as an agent either one of their officials or a person who is not a member of their staff. Therefore, where the EU institutions are assisted by a lawyer or designate as agent a person who is not a member of their staff, who they must pay, the remuneration of that lawyer or that person comes within the concept of ‘expenses necessarily incurred by the parties for the purpose of the proceedings’, within the meaning of Article 144(b) of the Rules of Procedure, without that institution being required to demonstrate that the involvement of that lawyer or that person was objectively justified (order of 30 January 2019, ECB v Mallis and Others, C‑105/15 P‑DEP, EU:C:2019:90, paragraph 17 and the case-law cited).
48 It must also be noted that, while, in principle, the remuneration of only one agent, adviser or lawyer is recoverable, it is possible that, depending on the individual circumstances of each case, most notably its complexity, the fees of more than one lawyer may be considered to be necessary expenses for the purposes of Article 144(b) of the Rules of Procedure (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 38 and the case-law cited).
49 Therefore, Trasta and Others’ argument based on the ‘principle of equality of arms’ and summarised in paragraph 27 of the present order must be rejected.
50 Similarly, the arguments of Trasta and Others, summarised in paragraphs 20 and 22 of the present order, that, respectively, first, the work carried out by the law firm did not concern the question of the standing of the shareholders of Trasta Komercbanka and, second, that question did not, in any event, give rise to any additional work for the ECB’s representatives, cannot succeed, since it is apparent from the law firm’s invoices, annexed by the ECB to its application for taxation of costs, that an amount of EUR 32 330 was invoiced to the ECB in connection with the preparation and drafting of the appeal in Case C‑663/17 P.
51 It must, however, be noted that it is also apparent from the invoices referred to in the preceding paragraph that no services were invoiced to the ECB by that law firm in connection with the drafting of the ECB’s response in Case C‑665/17 P, which is clearly explained by the fact that that response was very short, merely stating, in essence, that the ECB shared the Commission’s arguments and making a request to join Cases C‑663/17 P, C‑665/17 P and C‑669/17 P.
52 In addition, as regards Trasta and Others’ argument summarised in paragraph 22 of the present order, that, in essence, the ECB cannot claim reimbursement of the costs which it has incurred since those costs arise from the ECB’s unlawful refusal to acknowledge the continued power of representation of the lawyer initially appointed to represent Trasta Komercbanka, it must be held that, as is apparent from the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 50), the ECB, while acknowledging that the lawyer who brought the action on behalf of Trasta Komercbanka had a power of attorney issued by its board of directors, defended before the Court the lawfulness of the revocation of that power of attorney by the liquidator of Trasta Komercbanka, appointed after that power of attorney was issued.
53 Although that legal argument was rejected by the Court, as is apparent from the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 78), it cannot be claimed that the mere fact of having put forward such an argument constitutes unlawful conduct on the part of the ECB. It should be added that, contrary to what Trasta and Others claim, it is not apparent from that judgment that the ECB had argued that the representation of Trasta Komercbanka by a single lawyer, working pro bono, was sufficient.
54 As regards the fixing of the amount of recoverable costs in Cases C‑663/17 P and C‑665/17 P, it should be observed, in the first place, that in each of those two cases the matter was brought before the Court in appeal proceedings which, by their very nature, are confined to points of law and do not, except in the case of distortion, concern the determination or assessment of the facts of the case.
55 The subject matter of the dispute in those cases was limited to a single question, namely whether the shareholders of a bank constituted in the form of a commercial company may be regarded as being directly and individually concerned by a decision of the ECB withdrawing that bank’s authorisation, thus allowing them to bring an action for annulment against such a decision.
56 As regards, in the second place, the significance of the dispute from the point of view of EU law and the difficulties presented by the questions examined in the appeal proceedings, it should be noted, first, that, prior to the judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others (C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923), the Court of Justice had not specifically ruled on the standing of the shareholders of a commercial company to bring proceedings against a decision of the ECB withdrawing that company’s banking licence and, second, that the question whether persons who are not the addressees of a decision of an institution, body, office or agency of the European Union are nevertheless directly and individually concerned by that decision was already the subject of well-established case-law of the Court of Justice. Accordingly, the dispute in Cases C‑663/17 P and C‑665/17 P must be regarded as being of average difficulty or significance from the point of view of EU law.
57 As regards, in the third place, the financial interest that the parties concerned had in that dispute, it must be noted that, despite the fact that no precise value can be attributed to the banking licence withdrawn by the contested decision, it must be accepted that that withdrawal was of great economic significance for Trasta Komercbanka and its shareholders, in so far as it entailed the cessation of the banking activity previously carried on by Trasta Komercbanka and even gave rise to a decision of a Latvian court ordering the liquidation of Trasta Komercbanka (judgment of 5 November 2019, ECB and Others v Trasta Komercbanka and Others, C‑663/17 P, C‑665/17 P and C‑669/17 P, EU:C:2019:923, paragraph 17). Accordingly, the financial interest that the parties concerned had in the dispute must be regarded as significant.
58 As regards, in the fourth place, the amount of work required by the appeal proceedings, it is apparent from a combined reading of the application for taxation of costs and Annex A4 thereto that the drafting of the appeal in Case C‑663/17 P required 113 hours invoiced by the law firm. Of those 113 hours, 34 hours and 30 minutes were invoiced at an hourly rate of EUR 390, charged by a first lawyer belonging to that law firm, 9 hours at an hourly rate of EUR 290, charged by a second lawyer belonging to that law firm, and 69 hours and 30 minutes at an hourly rate of EUR 190, charged by a third lawyer from the same firm who was not instructed to represent the ECB before the Court.
59 In that regard, it is important to bear in mind that, when fixing the amount of the recoverable costs, the Court must take account of the total number of hours of work which may appear to be objectively necessary for the purposes of the proceedings, irrespective of the number of lawyers amongst whom the work was shared (order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 39 and the case-law cited).
60 Moreover, while hourly rates ranging between EUR 190 and EUR 390 depending on the lawyer concerned do not appear to be manifestly excessive in view of the circumstances of the case, it should be recalled that lawyers whose services are billed at an average hourly rate of more than EUR 290 must be able to demonstrate that they are highly qualified and very experienced, and are presumed to handle the cases entrusted to them efficiently and speedily. Accordingly, the fact that remuneration at that rate is taken into account requires in return a strict assessment of the total number of hours’ work essential for the purposes of the proceedings in question (see, to that effect, orders of 21 February 2022, OZ v EIB, C‑558/17 P‑DEP, EU:C:2022:140, paragraph 38, and of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 40).
61 In addition, account must be taken of the fact that, in the present case, the ECB’s lawyers already had a thorough knowledge of the case in question, since they had represented the ECB during the proceedings at first instance (see, to that effect, order of 21 December 2023, Missir Mamachi di Lusignano v Commission, C‑54/20 P‑DEP, EU:C:2023:1032, paragraph 41).
62 In the light of the considerations set out in paragraphs 54 to 61 above, it is appropriate, in the present case, to regard 30 hours of work at an average hourly rate of EUR 290 as being objectively necessary for the drafting of the appeal in Case C‑663/17 P, which corresponds to the total sum of EUR 8 700.
63 As regards the fees and expenses claimed by the ECB in respect of the preparation for and participation in the hearing, it must be borne in mind, first, that Cases C‑663/17 P, C‑665/17 P and C‑669/17 P were joined for the purposes of the oral part of the procedure and the judgment and, second, that, as is apparent from paragraphs 33 and 35 above, following the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809), the ECB must bear its own costs relating to both the proceedings at first instance and the appeal proceedings, as regards the action brought by Trasta Komercbanka.
64 Therefore, in so far as the ECB cannot claim reimbursement of the costs relating to Case C‑669/17 P, it must be held that, in respect of the fees which it incurred in connection with the hearing relating to Cases C‑663/17 P and C‑665/17 P, only those which the ECB would not have incurred had the hearing related exclusively to Case C‑669/17 P may be regarded as ‘necessary’, within the meaning of Article 144(b) of the Rules of Procedure, and, therefore, recoverable.
65 As a result, the method of calculation proposed by the ECB, consisting of dividing in equal parts the costs incurred at the hearing between Cases C‑663/17 P, C‑665/17 P and C‑669/17 P, cannot be accepted in as much as it could result in the parties ordered to pay the costs of the first two cases having to pay part of the costs incurred in respect of the third case, even though the ECB was ordered to bear its own costs in relation to that third case.
66 In that regard, it should be borne in mind that, for the purposes of the hearing in Joined Cases C‑663/17 P, C‑665/17 P and C‑669/17 P, the Court had invited the parties to concentrate their oral arguments on the question of how the right to an effective remedy against any act of the European Union can be ensured in a situation such as that in the present case if, first, the former directors of a bank that went into liquidation by operation of law, under national law, following withdrawal of its banking licence following a decision of the ECB, can no longer bring an action, even indirectly, in the name of that bank against the decision to withdraw its banking licence, and if, second, the shareholders of that bank also cannot do so in view of the requirement that the shareholders of a bank constituted in the form of a commercial company may challenge such a decision only if they are considered to be directly and individually concerned by it.
67 Since that question lies at the heart of Case C‑669/17 P, it must be held that the costs incurred by the ECB for the purposes of the hearing relate, to a very large extent, to that case, with the result that only a small part of the costs incurred by the ECB are linked exclusively to Cases C‑663/17 P and C‑665/17 P.
68 In that regard, it should be noted that it is in no way apparent from the documents before the Court, in particular from the lawyers’ invoices, that any services invoiced by that firm in respect of the preparation for and participation in the hearing related exclusively to Cases C‑663/17 P and C‑665/17 P.
69 Furthermore, while it is true that, after the hearing, the Court requested, inter alia, the ECB to produce certain documents, they were not relevant to the requirement that the shareholders of a bank be directly concerned by a decision of the ECB withdrawing that bank’s licence in order to be entitled to challenge it. Therefore, the fees and expenses incurred by the ECB in response to that request by the Court cannot be regarded as having been incurred in respect of Cases C‑663/17 P and C‑665/17 P.
70 In those circumstances, out of the 219.11 hours invoiced by the law firm for the purpose of preparing for the hearing, only 4 hours of work at an average hourly rate of EUR 290 can be regarded as having been necessary for the purposes of participating in the hearing in connection with Cases C‑663/17 P and C‑665/17 P.
71 As regards the travel expenses connected with the participation in the hearing of the representatives of the ECB and of the law firm, which the ECB calculates at EUR 800, it should be noted, first, that that amount does not appear disproportionate and, second, that the costs relating to Case C‑669/17 P cannot be reimbursed to the ECB.
72 Accordingly, the amount of recoverable travel expenses in connection with the hearing in Cases C‑663/17 P and C‑665/17 P must be fixed at EUR 533.
73 In the light of all the foregoing considerations, EUR 10 393 constitutes a fair assessment of the costs recoverable by the ECB from Trasta Komercbanka and the shareholders of Trasta Komercbanka in connection with Cases C‑663/17 P and C‑665/17 P.
The costs in respect of the proceedings at first instance relating to the action brought by the shareholders of Trasta Komercbanka
74 For reasons similar to those set out in paragraph 42 above, contrary to what the ECB claims, it cannot be accepted that the costs which the ECB is entitled to recover from the shareholders of Trasta Komercbanka, in respect of the proceedings at first instance relating to the action brought by those shareholders, amount to six sevenths of the costs incurred by the ECB in connection with the proceedings at first instance in their entirety.
75 As stated in paragraph 42 above in relation to Cases C‑663/17 P and C‑665/17 P, it is necessary, also as regards that part of the proceedings at first instance, to identify the fees and expenses relating to the work carried out in connection with those proceedings and to determine the amount of those fees and those expenses which may be classified as ‘necessary’ for the purposes of Article 144(b) of the Rules of Procedure and may, therefore, be recovered.
76 With regard, in the first place, to the nature and subject matter of the dispute as regards the shareholders of Trasta Komercbanka, it must be noted that, since the ECB raised a plea of inadmissibility in respect of their action, that dispute was, initially, limited to the question as to whether those shareholders had standing to bring proceedings against the contested decision, of which they were not addressees.
77 However, subsequently, following the rejection of the plea of inadmissibility of that action by the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623), the ECB had to lodge a defence concerning the matter of the legality of the contested decision, which was disputed by the shareholders of Trasta Komercbanka.
78 With regard, in the second place, to the significance of the dispute at issue from the point of view of EU law and the difficulties presented by the questions to be examined in the proceedings at first instance, it should be noted that, for the reasons set out in paragraph 56 above, the question of the standing of the shareholders of Trasta Komercbanka to bring proceedings against the contested decision cannot be regarded as being particularly difficult or significant from the point of view of EU law.
79 By contrast, in the absence of case-law of the Court of Justice or the General Court on the withdrawal, by the ECB, of a banking licence, it must be accepted that the proceedings concerning the substance of the dispute was of particular significance from the point of view of EU law and raised issues of a certain complexity.
80 In the third place, the considerations concerning the financial interest which the parties concerned had in the dispute, set out in paragraph 57 of the present order, are also valid as regards the proceedings at first instance relating to the action brought by the shareholders of Trasta Komercbanka.
81 In the fourth place, as regards the amount of work those proceedings required, it is apparent from the law firm’s invoices submitted by the ECB that the amount of EUR 39 448.29, initially invoiced to the ECB in respect of work relating to the admissibility of the action brought by the shareholders of Trasta Komercbanka, corresponds to 100 hours of work, invoiced at an hourly rate of EUR 390 for 5 hours and 15 minutes and EUR 290 for the remainder.
82 It should be noted in that regard that, before the General Court, the ECB pleaded the inadmissibility not only of the action brought by the shareholders of Trasta Komercbanka but also the action brought by Trasta Komercbanka, and maintained that the case had become devoid of purpose with the result that there was no need to adjudicate. In those circumstances, it cannot be held that all the work invoiced by the law firm at the stage of the plea of inadmissibility concerned only the action brought by the shareholders of Trasta Komercbanka.
83 As regards the sum of EUR 92 729.17, invoiced to the ECB in respect of the work relating to the substance of Case T‑247/16, it is apparent from the invoices submitted by the ECB that that sum corresponds to 310 hours and 40 minutes of work, invoiced at hourly rates ranging from EUR 190 to EUR 390, depending on the lawyer who carried out the work.
84 That work consisted of the drafting of the ECB’s defence, lodged, as is apparent from the order of 17 November 2021, Trasta Komercbanka v ECB (T‑247/16 RENV, EU:T:2021:809, paragraph 11), on 25 October 2017. Since that submission was made following the order of 12 September 2017, Fursin and Others v ECB (T‑247/16, EU:T:2017:623), by which the General Court decided that there was no need to adjudicate on the action brought by Trasta Komercbanka, it should be noted that the work involved in drafting that statement of defence related exclusively to the action brought by the shareholders of Trasta Komercbanka.
85 Furthermore, when fixing the amount of recoverable costs in respect of the proceedings at first instance relating to the action brought by the shareholders of Trasta Komercbanka, account must be taken of the considerations set out in paragraphs 47, 48, 59 and 60 above.
86 In the light of the considerations set out in paragraphs 76 to 85 above, for the purposes of the proceedings at first instance relating to the action brought by the shareholders of Trasta Komercbanka, the following must be considered to be objectively necessary: 25 hours of work at an average hourly rate of EUR 290 as regards the work necessary for the part of the proceedings relating to the admissibility of that action, and 83 hours of work at an average hourly rate of EUR 290 as regards the work necessary for the part of the proceedings dealing with the substance of the case, which corresponds to the total sum of EUR 31 320.
87 Lastly, it should also be noted that the ECB has not claimed to have incurred recoverable costs in respect of the present taxation of costs proceedings.
88 In the light of all the foregoing considerations, the costs recoverable by the ECB will be fairly assessed by fixing, first, at EUR 10 393 the total amount of costs recoverable from Trasta Komercbanka and the shareholders of Trasta Komercbanka in respect of the appeals in Cases C‑663/17 P and C‑665/17 P and, second, at EUR 31 320 the total amount of recoverable costs in respect of the proceedings at first instance relating to the action brought by the shareholders of Trasta Komercbanka in Case T‑247/16.
On those grounds, the Court (Tenth Chamber) hereby orders:
1. The total amount of costs to be reimbursed by Trasta Komercbanka AS, Mr Ivan Fursin, the estate of Mr Buimisters, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA to the European Central Bank (ECB) in respect of Cases C‑663/17 P and C‑665/17 P is fixed at EUR 10 393.
2. The total amount of costs to be reimbursed by Mr Ivan Fursin, the estate of Mr Buimisters, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA to the European Central Bank (ECB) in respect of the proceedings at first instance relating to the action brought by Mr Ivan Fursin, Mr Igors Buimisters, C & R Invest SIA, Figon Co. Ltd, GCK Holding Netherlands BV and Rikam Holding SA in Case T‑247/16 is fixed at EUR 31 320.
Luxembourg, 21 May 2024.
A. Calot Escobar | | Z. Csehi |
Registrar | | President of the Chamber |