ORDER OF THE GENERAL COURT (Second Chamber)
25 April 2023 (*)
(Procedure – Taxation of costs)
In Case T‑564/15 RENV-DEP,
Spliethoff’s Bevrachtingskantoor BV, established in Amsterdam (Netherlands), represented by Y. de Vries and J. de Kok, lawyers,
applicant,
v
European Commission, represented by V. Bottka, S.L. Kalėda and J. Samnadda, acting as Agents,
defendant,
THE GENERAL COURT (Second Chamber),
composed of J. Schwarcz (Rapporteur), acting as President, R. Norkus and W. Valasidis, Judges,
Registrar: E. Coulon,
having regard to the judgment of 10 June 2020, Spliethoff’s Bevrachtingskantoor v Commission (T‑564/15 RENV, not published, EU:T:2020:252),
makes the following
Order
1 By its application on the basis of Article 170 of the Rules of Procedure of the General Court, the applicant, Spliethoff’s Bevrachtingskantoor BV, requests that the General Court fix at EUR 50 326.83 the amount of recoverable costs to be paid by the European Commission in respect of the costs incurred by it in the initial proceedings before the General Court in Case T‑564/15 and in the appeal proceedings before the Court of Justice in Case C‑635/16 P.
Background to the dispute
2 By application lodged at the Registry of the General Court on 25 September 2015 and registered under case number T‑564/15, the applicant brought an action for annulment of Commission Implementing Decision C(2015) 5274 final of 31 July 2015 establishing the list of proposals selected for receiving EU financial assistance in the field of Connecting Europe Facility (CEF) – Transport sector, following the calls for proposals launched on 11 September 2014 based on the Multi-Annual Work Programme.
3 By order of 11 October 2016, Spliethoff’s Bevrachtingskantoor v Commission (T‑564/15, not published, EU:T:2016:611) (‘the initial order’), the General Court dismissed the action as inadmissible and ordered the applicant to pay the costs.
4 By application lodged at the Registry of the Court of Justice on 8 December 2016 and registered under case number C‑635/16 P, the applicant brought an appeal against the initial order.
5 By judgment of 28 June 2018, Spliethoff’s Bevrachtingskantoor v Commission (C‑635/16 P, EU:C:2018:510) (‘the judgment on appeal’), the Court of Justice set aside the initial order, referred the case back to the General Court and reserved the costs.
6 By judgment of 10 June 2020, Spliethoff’s Bevrachtingskantoor v Commission (T‑564/15 RENV, not published, ‘the judgment after referral’, EU:T:2020:252), the General Court dismissed the action and ordered the Commission to bear its own costs and to pay those incurred by the applicant relating to the appeal proceedings before the Court of Justice in Case C‑635/16 P and to the initial proceedings before the General Court in Case T‑564/15. It ordered the appellant to pay the costs relating to the proceedings referred back to the General Court in Case T‑564/15 RENV.
7 By letter of 19 February 2021, the applicant informed the Commission that the total amount of recoverable costs, including lawyers’ fees and other costs, was EUR 54 141.93.
8 By letter of 4 June 2021, the Commission requested the applicant to submit a revised claim, taking into account certain case-law decisions on recoverable costs and certain specific features.
9 By letter of 16 August 2021, the applicant submitted a revised claim, after deduction of various items from the amount claimed, resulting in a total amount of EUR 50 326.83.
10 By letter of 9 December 2021, the Commission did not accept that revised claim and informed the applicant that it was prepared to pay an amount of EUR 25 000, corresponding to approximately 50% of the costs allegedly incurred by the applicant.
11 By letter of 8 June 2022, the applicant rejected that offer and requested payment of the amount of EUR 50 326.83.
12 No agreement was reached between the parties on the amount of recoverable costs.
Forms of order sought
13 The applicant claims that the Court should fix the amount of recoverable costs to be reimbursed by the Commission at EUR 50 326.83, together with default interest, in respect of the initial proceedings before the General Court and the appeal proceedings before the Court of Justice.
14 The Commission contends that the General Court should:
– fix the amount of recoverable costs at EUR 12 500 or less in respect of the initial proceedings or, in the alternative, at EUR 25 000 or less in respect of the initial proceedings and the appeal proceedings;
– order the applicant to pay the costs of the present proceedings or, in the alternative, fix the amount of those costs at a reasonable amount if the Commission is ordered to pay the costs.
Law
15 Under Article 170(3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Court, on application by the interested party, is to give its decision by way of an order from which no appeal is to lie, after giving the party concerned by the application an opportunity to submit its observations.
The admissibility of the application for taxation of costs
16 The Commission contends that the subject matter of the present proceedings should be limited to necessary costs of the proceedings in Case T‑564/15. The application for taxation of costs of the appeal proceedings before the Court of Justice is inadmissible, since it follows from Article 145 of the Rules of Procedure of the Court of Justice and from Article 170 of the Rules of Procedure of the General Court that each court has jurisdiction to rule on disputes relating to the costs of proceedings before it.
17 Article 133 of the Rules of Procedure provides that a decision as to costs is to be given in the judgment or order which closes the proceedings.
18 In the case of proceedings following referral of the case back to the General Court, Article 219 of the Rules of Procedure provides that the General Court is to make a decision as to the costs relating to the proceedings instituted before the General Court and the proceedings on the appeal before the Court of Justice.
19 It also follows from the case-law that recoverable costs are to be limited to necessary costs incurred for the purposes of the proceedings before the General Court, including, if applicable, where the case has been referred back to the General Court following the setting aside of a judgment on appeal, and for the purposes of the proceedings before the Court of Justice, in so far as the latter did not give a ruling on the costs in its appeal judgment (see, to that effect, order of 20 September 2017, Frucona Košice v Commission, T‑11/07 DEP, not published, EU:T:2017:650, paragraph 16 and the case-law cited).
20 In the present case, the initial order, which was the subject of an appeal, was set aside and referred back to the General Court, which gave final judgment in the case. It is clear that it was, therefore, the judgment after the case was referred back to the General Court which brought the proceedings to an end, particularly since no appeal was brought against that judgment.
21 In paragraph 127 of the judgment after referral it is stated that ‘in the appeal judgment, the Court of Justice reserved the costs [and it] is therefore for the General Court to decide in this judgment on the costs relating to the proceedings brought before the General Court and to the appeal proceedings before the Court of Justice, in accordance with Article 219 of the Rules of Procedure’.
22 In paragraphs 130 and 131 of the judgment after referral, the General Court accordingly held that ‘since the Commission has been unsuccessful in the appeal proceedings before the Court of Justice, it must be ordered to bear its own costs and to pay those incurred by the appellant in connection with those proceedings and the proceedings before the General Court prior to the appeal’ and that ‘since the applicant has been unsuccessful on the merits in the proceedings referred back to the General Court, it must be ordered to pay the costs relating to those proceedings’.
23 The applicant was therefore fully entitled to lodge an application for taxation of costs in respect of the initial proceedings before the General Court and of the appeal proceedings before the Court of Justice. That application must be declared admissible.
Consideration of the substance of the application for taxation of costs
24 Under Article 140(b) of the Rules of Procedure, expenses necessarily incurred by the parties for the purposes 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 from that provision that recoverable costs are limited to those incurred for the purposes of the proceedings before the General Court, including, where applicable, after the case has been referred back to the General Court following the setting aside of a judgment on appeal, and before the Court of Justice, in so far as the latter did not rule on costs in its judgment on appeal (see, to that effect, orders of 18 April 2006, Euroalliages and Others v Commission, T‑132/01 DEP, not published, EU:T:2006:112, paragraph 29, and of 24 January 2014, British Aggregates v Commission, T‑210/02 RENV-DEP, not published, EU:T:2014:65, paragraph 32).
25 As regards lawyers’ fees, the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but may determine the amount of those fees which may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, 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 (see order of 26 January 2017, Nürburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 10 and the case-law cited).
26 It should also be borne in mind that, in the absence of provisions of EU law laying down fee scales, the EU Courts must make an unfettered assessment of the facts of the case, taking into account the subject matter and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest that the parties had in the proceedings (see order of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 11 and the case-law cited).
27 It is in the light of those considerations that the amount of recoverable costs incurred in the present case in respect of the various proceedings must be assessed.
28 The applicant requests the Court to fix the total amount of recoverable costs at EUR 50 326.83. That amount corresponds to the costs relating to the proceedings which gave rise to the initial order, assessed at EUR 17 232.36, and to those relating to the proceedings which gave rise to the judgment on appeal, assessed at EUR 33 094.47.
29 The Commission considers, in essence, that the total amount of EUR 50 326.83 claimed by the applicant is not justified and invites the Court to fix the total amount of recoverable costs at EUR 25 000 or less.
30 It should be clarified that the amounts mentioned by the applicant and by the Commission do not include value added tax (VAT), which cannot be recovered from the costs recoverable by a VAT taxable person who recovers it from the tax authorities in the current context of his or her affairs (see, to that effect, order of 26 January 2017, Nordschleife, T‑181/14 DEP, EU:T:2017:41, paragraph 12).
31 In the first place, as regards the subject matter and nature of the dispute, its significance from the point of view of EU law and the difficulties presented by the case, it should be noted that the present dispute concerned an application for annulment of the decision allegedly contained in the email of the Innovation and Networks Executive Agency (INEA) of 17 July 2015 relating to the proposal submitted by the applicant in response to the call for proposals launched on the basis of the Multi-Annual Work Programme for European Union financial assistance in the field of the Connecting Europe Facility (CEF) –Transport sector. The case raised, in essence, the question, first, whether the rejection decision had been correctly assessed by the Commission in the light of the criterion of the relevance of the proposal, quality and impact and, second, whether the principle of equal treatment had been infringed. In fact, the Commission did not select the measures proposed by the applicant, but opted for other similar proposals which also concerned fleets of vessels and related to sulphur emission reduction technologies. These were matters of assessment which did not involve any particular complexity such as to justify a detailed examination of the legislation or particular research, either legal or factual; nor were they of any particular importance from the point of view of EU law as a whole.
32 It should also be noted in that regard that, after the action had been brought and further to the objection of inadmissibility put forward by it, the Commission also raised two questions of admissibility alleging, first, that the email of 17 July 2015 was not by its nature subject to challenge and, second, that since it was not the author of the contested act, the action could not be directed against it. Those procedural issues, which were of no particular importance from the point of view of EU law and were resolved by an order of the General Court, were, however, the subject of the appeal and, in that context, although they were not legally complicated, they required particular attention on the part of the applicant. To that end, it put forward three pleas in law, two of which were upheld and the last of which was not examined.
33 In the second place, as regards the economic interests at stake, the proceedings were of significant economic importance to the applicant. Whilst a decision in favour of the call for proposals could in particular have enabled the installation of scrubbers in order to reduce sulphur emissions on board the company’s 25 vessels in order to comply with the International Convention for the Prevention of Pollution from Ships (MARPOL) and not give an advantage to its competitors, the retrofitting of large fleets of vessels was not sufficient and should have been part of a broader investment also involving the ports concerned. However, the applicant itself admitted that its proposal of 25 February 2015 submitted with a view to receiving an amount of EUR 20 million did not relate to any port investment.
34 In the third place, as regards the amount of work generated by the proceedings for the applicant’s representatives, it must be borne in mind that the primary consideration of the Courts of the European Union 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 (see order of 29 November 2016, TrekStor v EUIPO – Scanlab (iDrive), T‑105/14 DEP, not published, EU:T:2016:716, paragraph 16 and the case-law cited).
35 Furthermore, it must be borne in mind that, according to the case-law, it is necessary to consider the hourly rate which it is sought to have applied, since remuneration at a high hourly rate is appropriate only for the services of professionals who are capable of working efficiently and rapidly. Accordingly, the taking into account of such a level of remuneration must be counterbalanced by a necessarily strict evaluation of the total number of hours of work essential for the purposes of the proceedings concerned (order of 10 April 2018, Philips Lighting Poland and Philips Lighting v Council, T‑469/07 DEP, not published, EU:T:2018:184, paragraph 24).
36 It should also be noted that the division of the work of preparing the pleadings among several lawyers necessarily involves some duplication of effort. In those circumstances, the Court cannot allow the total number of hours of work claimed as being objectively indispensable to the judicial proceedings (order of 10 April 2018, Philips Lighting Poland and Philips Lighting v Council, T‑469/07 DEP, not published, EU:T:2018:184, paragraph 25).
Recoverable costs in the case which gave rise to the initial order
37 In the present case, the amount of EUR 17 232.36 claimed in respect of the proceedings which gave rise to the initial order in Case T‑564/15 and corresponding to a total of 44.2 hours after the invoices were reconsidered by the applicant is broken down as follows:
– EUR 12 440.56 for 33.4 hours relating to the preparation of the action for annulment, which comprises 12 pages and 132 pages of annexes and in support of which it relies on two pleas in law, a manifest error of assessment and an infringement of equal treatment;
– EUR 279.06 for 0.6 hours for the minutes of a meeting between the applicant and the Commission;
– EUR 1 452 for 3.2 hours relating to follow-up on the proceedings with the Court Registry and study of the Commission’s objection of inadmissibility, comprising 18 pages and 39 pages of annexes;
– EUR 3 060.74 for 7 hours relating to the applicant’s observations on the objection of inadmissibility, comprising 7 pages and accompanied by an annex of 3 pages.
38 It is also apparent from the fee statements produced by the applicant that the performance of those tasks involved the work of a partner who spent a total of 27.8 hours on those tasks at an hourly rate of EUR 460, an associate who spent 0.3 hours on them at an hourly rate of EUR 430 and an associate who spent 16.1 hours on them, for whom the hourly rate charged is EUR 205.
39 As regards the number of hours of work claimed by the applicant, it must be borne in mind that the present case did not raise any novel legal issues or present any particular difficulties. In those circumstances, the Court considers that the 44.2 hours of work claimed by the applicant are excessive, notwithstanding the fact that the applicant has already deducted a total amount of EUR 1 424.50 corresponding to 6.7 hours of work for non-recoverable costs, such as sending by e-Curia, preparing and formatting annexes or certain telephone conversations.
40 In the light of the foregoing considerations and in accordance with the case-law cited in paragraphs 34 to 36 above, the Court fixes the total amount of working time objectively required by the applicant’s lawyers for the purposes, principally, of preparing the action for annulment, analysing the objection of inadmissibility and drafting the observations on that objection at 38 hours.
41 As regards the hourly rate invoiced of EUR 460, or EUR 430 for an experienced partner and EUR 205 for an associate, the average hourly rate which may be deducted from it by dividing the total amount claimed by the number of hours declared is EUR 390. The Court considers that rate to be excessive. The average hourly rate to be used in the present case cannot exceed EUR 350, which, moreover, is already an hourly rate which can be considered appropriate only as remuneration for the services of a particularly experienced professional, capable of working very efficiently and rapidly.
42 In those circumstances, EUR 13 300 represents a fair assessment of the fees recoverable by the applicant in respect of the initial order.
Recoverable costs in the case giving rise to the judgment on appeal
43 As regards the appeal proceedings before the Court of Justice in Case C‑635/16 P, the amount stated in the application of EUR 33 094.47, corresponding to a total of 80.8 hours, is broken down as follows:
– EUR 29 574.47 for 76.1 hours of work for the preparation of the appeal, comprising 19 pages and 137 pages of annexes, in support of which it relies on three grounds of appeal alleging errors of law by the General Court in declaring the action for annulment inadmissible;
– EUR 1 190 for 2 hours spent on analysis of the response and the application for leave to lodge a reply;
– EUR 720 for 1.2 hours spent analysing the rejoinder and the question whether a hearing should be requested;
– EUR 900 for 1.5 hours spent on the preparation of a request for a hearing.
44 It is also apparent from the fee statements produced by the applicant that the performance of those tasks involved the work of a partner who spent a total of 75.2 hours at an hourly rate of EUR 595 or EUR 600, and an associate who spent 5.6 hours at an hourly rate of EUR 230 or EUR 215.
45 As regards the number of hours of work claimed by the applicant, it must be borne in mind that the appeal did not raise any novel legal issues or present any particular difficulties. In those circumstances, the Court considers that the 80.8 hours of work claimed by the applicant are excessive, notwithstanding the fact that it has already made deductions from the non-recoverable costs, including the complaint lodged with the European Ombudsman, parallel proceedings before the General Court, and costs in respect of which it wishes to avoid further discussions, such as the analysis of the rejoinder or the examination of the Advocate General’s Opinion.
46 In the light of the foregoing considerations and in accordance with the case-law cited in paragraphs 34 to 36 above, the Court fixes the total amount of working time objectively required by the applicant’s lawyers for the purposes of the appeal proceedings at 55 hours of work, taking adequate account of the importance that that case might have for the applicant in terms of its effective judicial protection.
47 As regards the hourly rate for an experienced partner invoiced at EUR 595 until April 2017 and EUR 600 as from May 2017, and EUR 230 for a grade 11 associate and EUR 215 for a grade 10 associate, the average hourly rate which may be deducted from it by dividing the total amount claimed by the number of hours declared is EUR 410. The Court considers that rate to be excessive. The average hourly rate to be used in the present case cannot exceed EUR 350, which, moreover, is already an hourly rate which can be considered appropriate only as remuneration for the services of a particularly experienced professional, capable of working very efficiently and rapidly.
48 In those circumstances, EUR 19 250 represents a fair assessment of the fees recoverable by the applicant in respect of the judgment on appeal.
The costs relating to the present taxation of costs proceedings
49 It should be noted that, in fixing recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (see order of 11 April 2019, Stada Arzneimittel v EUIPO – Urgo recherche innovation et développement (Immunostad), T‑403/16 DEP, not published, EU:T:2019:249, paragraph 31 and the case-law cited).
50 In the present case, the applicant has neither requested reimbursement of the expenses relating to the present taxation of costs proceedings nor provided any supporting evidence in that regard. Therefore, there is no need to increase the amount of recoverable costs by adding thereto an amount relating to the present taxation of costs proceedings.
The claim for default interest
51 The applicant requests the Court to order the Commission to pay it default interest on the amount of costs to be reimbursed, from the date of signature of the present order until the date of actual payment.
52 According to settled case-law, an application made in the course of proceedings for taxation of costs to add default interest to the amount due must be allowed for the period between the date of notification of the order of taxation of costs and the date of actual recovery of the costs (see order of 27 November 2020, Flabeg Deutschland v Commission, T‑103/15 DEP, not published, EU:T:2020:585, paragraph 60 and the case-law cited).
53 The applicable interest rate is to be calculated on the basis of the rate applied by the European Central Bank (ECB) to its main refinancing operations in force on the first day of the month in which payment is due, which is the date of notification of the present order, increased by 3.5 percentage points (see orders of 20 January 2021, Council v Gul Ahmed Textile Mills, C‑100/17 P‑DEP, not published, EU:C:2021:41, paragraph 47 and the case-law cited, and of 13 January 2021, MIP Metro v EUIPO – AFNOR (N & NF TRADING), T‑807/16 DEP, not published, EU:T:2021:9, paragraph 42 and the case-law cited).
54 Consequently, the amount of recoverable costs will accrue default interest, from the date of notification of the present order, at the rate calculated on the basis of the rate fixed by the ECB for its main refinancing operations applicable during the period concerned, increased by 3.5 percentage points.
55 It follows from all of the foregoing that the amount of recoverable costs in the case dealt with by the General Court which gave rise to the initial order is EUR 13 300 and that the amount of recoverable costs in the case which gave rise to the judgment on appeal is EUR 19 250, which results in a total of EUR 32 550. That amount takes account of all the circumstances of the case up to the date on which the present order is made. Default interest from the date of notification of this order is to be added to that amount.
On those grounds,
THE GENERAL COURT (Second Chamber)
hereby orders:
1. The total amount of the costs to be reimbursed by the European Commission to Spliethoff’s Bevrachtingskantoor BV is fixed at EUR 32 550.
2. That amount shall bear default interest from the date of notification of the present order until the date on which payment is made.
Luxembourg, 25 April 2023.
Registrar | | Acting President |