ORDER OF THE GENERAL COURT (Fifth Chamber)
12 January 2018 (*)
(Procedure — Taxation of costs)
In Case T‑368/15 DEP,
Alcimos Consulting SMPC, established in Athens (Greece), represented by F. Rodolaki, lawyer,
applicant,
v
European Central Bank (ECB), represented by K. Laurinavičius and M. Szablewska, acting as Agents,
defendant,
APPLICATION for taxation of costs to be reimbursed by Alcimos Consulting SMPC to the European Central Bank (ECB) following the order of 14 July 2016, Alcimos Consulting v ECB (T-368/15, not published, EU:T:2016:438),
THE GENERAL COURT (Fifth Chamber),
composed of M. Prek, acting as President, I. Labucka (Rapporteur) and V. Kreuschitz, Judges,
Registrar: E. Coulon,
makes the following
Order
Background to the dispute
1 By application lodged at the Court Registry on 10 July 2015, the applicant brought, first, an action under Article 263 TFEU seeking annulment of the decisions of the Governing Council of the ECB of 28 June 2015 by which it was decided to maintain the ceiling to the provision of emergency liquidity assistance to Greek banks at the level decided on 26 June 2015, and of 6 July 2015, by which it was decided to maintain that ceiling at that same level and to adjust the haircuts on collateral accepted by the Bank of Greece in that respect and, secondly, an action under Article 268 TFEU seeking compensation for the damage allegedly suffered as a result of those contested decisions.
2 By order of 14 July 2016, Alcimos Consulting v ECB (T‑368/15, EU:T:2016:438), the Court dismissed the action as inadmissible and ordered Alcimos Consulting SMPC to pay the costs.
3 By letter of 19 January 2017, the ECB requested the applicant to reimburse the costs it had incurred in the amount of EUR 13 680.58, by 10 February 2017 at the latest.
4 Failing any reimbursement of the costs it had incurred as of 10 February 2017, the ECB, by reminder of 20 February 2017, again requested that those costs be reimbursed, by 13 March 2017 at the latest.
5 By letter of 25 April 2017, the applicant informed the ECB that it was impossible for it to comply with that request, as it did not have sufficient financial resources due to the economic damage suffered as a result of the economic adjustment programme applicable in Greece.
Procedure and forms of order sought
6 By document lodged at the Court Registry on 18 May 2017, the ECB submitted the present application for taxation of costs pursuant to Article 170(1) of the Rules of Procedure.
7 On 23 May 2017, the Court Registry informed the applicant that the time limit for submitting written observations on the present application had been set at 10 July 2017.
8 The applicant submitted no observations within the prescribed period.
9 The ECB claims that the Court should:
– set the total amount of recoverable costs at EUR 13 068.58;
– deliver an enforceable copy of the order to the applicant.
Law
The ECB’s first head of claim
10 In the ECB’s first head of claim, it asks that the amount of recoverable costs be set at EUR 13 068.58, composed entirely of an invoice relating to a lawyers’ fee note.
11 In that regard, it should be recalled that, pursuant to Article 170 of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the General Court, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal lies.
12 According to 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.
13 It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, second, to those which were necessary for that purpose (see order of 12 January 2016, Boehringer Ingelheim International v OHIM — Lehning entreprise (ANGIPAX), T‑368/13 DEP, EU:T:2016:9, paragraph 11).
14 In the present case and regarding, at the outset, the nature of the costs of which taxation is sought, it is apparent from the first paragraph of Article 19 of the Statute of the Court, applicable before the General Court pursuant to the first paragraph of Article 53 of that Statute, that the institutions of the European Union are free to have recourse to the assistance of a lawyer. That lawyer’s remuneration is covered by the concept of expenses necessarily incurred for the purposes of the proceedings, without the institution being required to show that such assistance is objectively warranted (orders of 23 March 2012, Kerstens v Commission, T‑498/09 P-DEP, EU:T:2012:147, paragraph 20 and of 11 December 2014, Longinidis v Cedefop, T‑283/08 P-DEP, EU:T:2014:1083, paragraph 24).
15 The fact that the ECB had, in the present case, recourse to a law firm cannot therefore be objected to.
16 Nonetheless, 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 to 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 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17 and the case-law cited).
17 It has also consistently been held that, failing any applicable 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 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 (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18 and the case-law cited).
18 In setting the recoverable costs, the Court is required to take account of all the circumstances of the case until the making of the order on taxation of costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (order of 31 March 2011, Tetra Laval v Commission, T‑5/02 DEP and T‑80/02 DEP, EU:T:2011:129, paragraph 54).
19 It is on the basis of those matters that the amount of recoverable costs must be assessed in the present case, in the light of, first, the invoice issued by the ECB’s lawyers ad litem, which states the amount of EUR 13 068.58, including VAT, and, secondly, the single fee note issued, which states the hours of work carried out for each legal task.
20 The ECB’s application must, in the first place, be assessed irrespective of the specific amount that it is claiming as recoverable costs.
21 To that end it must, first, be recalled that, in order for it to be determined whether the costs actually incurred were necessary for the purposes of the proceedings, precise details must be provided by the applicant (order of 27 November 2012, Gualtieri v Commission, T‑413/06 P-DEP, EU:T:2012:624, paragraph 53).
22 More specifically, the assessment of the value of the work carried out depends on the accuracy of the information provided (order of 9 November 1995, Ahlström Osakeyhtiö and Others v Commission, C‑89/85 DEP, EU:C:1995:366, paragraph 20).
23 In the present case, it is clear that the ECB produced a sufficiently detailed note stating the fees of its lawyers and the tasks carried out in order to assess the costs incurred, which the applicant does not dispute.
24 Accordingly, the necessity of the costs incurred for the purpose of the proceedings, as regards the requirement that the information provided must be accurate, must be confirmed.
25 In any event, by reference to the fee note, the tasks carried out are clearly identified and directly connected to the proceedings in question.
26 In addition to the drafting of pleadings and documents submitted in the context of the written part of the procedure before the Court, the entirety of the legal research carried out, and the meetings of or telephone calls between the lawyers and the ECB, all fell within the scope of the proceedings.
27 Second, as regards the nature of the proceedings, the present application concerns the costs incurred in the context of, first, the application for annulment of the decision of the Governing Council of the ECB of 28 June 2015 by which it was decided to maintain the ceiling to the provision of emergency liquidity assistance to Greek banks at the level decided on 26 June 2015, and of 6 July 2015, by which it was decided to maintain that ceiling at that same level and to adjust the haircuts on collateral accepted by the Bank of Greece in that respect and, secondly, an application under Article 268 TFEU for compensation for the damage allegedly suffered as a result of those decisions.
28 There were therefore two aspects to the proceedings, in so far as they included an application for annulment of the contested decisions and an application for compensation for the damage allegedly suffered.
29 Third, the dispute was not without importance for EU law, especially as regards the admissibility of the action for annulment, in so far as the question whether the applicant had standing to bring proceedings was discussed.
30 More specifically, the Court was called on in those proceedings to answer the question whether there was a causal link between the contested decisions and the measures subsequently adopted by the national authorities, namely, the imposition of a bank holiday in Greece and the establishment of capital controls.
31 Fourth, although that case was ruled on by way of order, it nonetheless presented a certain legal difficulty, in so far as the discretion granted by the contested decisions to the national authorities had to be assessed.
32 Fifth, as regards the application for compensation, the dispute admittedly had a very limited financial impact, inasmuch as the applicant sought compensation for the damaged suffered in the amount of EUR 1.
33 However, as regards the application for annulment, it was of significant importance, in so far as it raised sensitive questions, relating to the provision of emergency liquidity assistance, and carried the risk that temporary measures liable to have an impact on the ECB’s policies and, consequently, liable to have a certain macro-economic impact, would be adopted.
34 Sixth, with regard to the amount of work generated by the proceedings in Case T‑368/15, it must be noted that the ECB’s lawyers were required to draft, in addition to written observations on the application for expedited procedure submitted by the applicant, a separate document by which the ECB submitted a plea that the action was inadmissible and a letter lodged at the Court Registry informing it of the disclosure of procedural documents by the applicant on its website.
35 In the light of those considerations, the ECB’s application must be assessed, in the second place, in respect of the specific amount which it is claiming as recoverable costs.
36 As regards the costs incurred by the ECB’s lawyers, it is apparent from examination of the fee invoice that those costs are in the amount of EUR 13 068.58, including VAT, namely, EUR 10 982.00, excluding VAT, corresponding to a total of 32 hours and 18 minutes of work at an hourly rate of EUR 340.
37 In that regard, it should be borne in mind, first of all, that an hourly rate of EUR 300 can be regarded as appropriate, according to case-law, only as remuneration for the services of a particularly experienced professional, who is capable of working very efficiently and rapidly. For remuneration at such a rate to be taken into account there must moreover in return be an assessment, necessarily strict, of the total number of hours of work essential for the purposes of the proceedings before the Court (see, to that effect, order of 15 January 2008, Organisation des Modjahedines du peuple d’Iran v Council, T‑228/02 DEP, EU:T:2008:7, paragraph 64 and the case-law cited).
38 In the present case, it is apparent from the fee note, first, that the tasks were carried out by an associate of the law firm which represented the ECB, with the ad hoc assistance — of approximately twenty minutes charged — of another associate.
39 Secondly, the evaluation of the number of work hours was carried out strictly, in so far as a precise number of hours corresponds to every task performed.
40 Therefore, by reference to the detailed fee note, those lawyers met those criteria of experience, efficiency and rapidity overall.
41 On that basis, the hourly rate charged by the ECB’s lawyers cannot, in the circumstances of the present case, be regarded as excessive.
42 Next, a total of 32 hours and 18 minutes of work on a case which gave rise to the workload set out in paragraph 34 of the present order remains reasonable.
43 Finally, it should be noted that the amount claimed in respect of VAT is regarded as recoverable costs only if the applicant claiming that amount establishes that it is not subject to VAT (see, to that effect, order of 21 May 2014, Esge v OHIM — De’Longhi Benelux (KMIX), T‑444/10 DEP, EU:T:2014:356, paragraph 42).
44 In the present case, given that the VAT on the fees is ultimately chargeable to the ECB, the amount of fees, including VAT, must be taken account of in respect of recoverable costs (see, to that effect, order of 19 December 2006, Land Nordrhein-Westfalen v Commission T‑233/99 DEP, not published, EU:T:2006:406, paragraph 45).
45 Therefore, it is apparent from the analysis conducted above of the criteria laid down in the case-law that, with regard to the nature of the proceedings, their purpose, their significance from the point of view of EU law, the difficulties presented by the case, and the financial interests of the parties, the workload in respect of Case T‑368/15 was not insignificant, so that the amount of the fees to be paid by the ECB to its lawyers must be regarded as reasonable.
46 In the light of all the foregoing considerations, the total costs recoverable by the ECB can be assessed on an equitable basis at EUR 13 068.58, an amount that takes account of all the circumstances of the case until the date on which the present order is made.
The second head of claim of the ECB
47 In its second head of claim, the ECB requests that an enforceable copy of the present order be delivered to the applicant.
48 It is however clear that such a request is of a purely administrative nature and lies outside the scope of the present proceedings on the taxation of the ECB’s recoverable costs, so that the ECB’s second head of claim must be rejected (see, to that effect, order of 23 October 2012, Chabou v OHIM — Chalou (CHABOU), T‑323/10 DEP II, not published, EU:T:2012:561, paragraph 21).
Costs incurred in connection with the taxation of costs proceedings
49 Since the sum set at 13 068.58 by way of costs in Case T‑368/15 takes account of all the circumstances of the case to date, a separate ruling need not be given on the costs incurred by the parties for the purposes of these proceedings for taxation of costs (see, to that effect, orders of 2 March 2009, Fries Guggenheim v Cedefop, T‑373/04 DEP, EU:T:2009:43, paragraph 32 and of 28 February 2013, Marcuccio v Commission, C‑513/08 P-DEP, EU:C:2013:109, paragraph 22).
On those grounds,
THE GENERAL COURT (Fifth Chamber)
hereby orders:
1. The total amount of the costs to be reimbursed by Alcimos Consulting SMPC in connection with the proceedings before the General Court is set at EUR 13 068.58.
2. That amount shall bear interest for late payment from the date on which the present order is served until the date of actual payment.
Luxembourg, 12 January 2018.
Registrar | | Acting as the President |