In Case T‑345/03

ORDER OF THE GENERAL COURT (First Chamber)

6 March 2015 (*)

(Procedure – Taxation of costs)

In Case T‑345/03DEP,

Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE, established in Athens (Greece), represented by V.Christianos, lawyer,

applicant,

v

European Commission, represented by S.Delaude, acting as Agent,

defendant,

APPLICATION for taxation of costs following the judgment of 12 March 2008 in Evropaïki Dynamiki v Commission (T‑345/03, ECR, EU:T:2008:67).

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, I. Pelikánová and E. Buttigieg (Rapporteur), Judges,

Registrar:E. Coulon,

makes the following

Order

Facts, procedure and forms of order sought

1By application lodged at the Registry of the General Court on 30 September 2003, the applicant sought annulment of the decision of the European Commission of 16 July 2003 to award to another tenderer the contract which is the subject of the Commission’s call for tenders ENTR/02/55 – CORDIS Lot 2 for the development and provision of services in support of the Community Research and Development Service (CORDIS) (‘thedecision of 16 July 2003’).

2By judgment of 12 March 2008 in Evropaïki Dynamiki v Commission (T‑345/03, ECR, EU:T:2008:67), the General Court upheld the applicant’s action and annulled the decision of 16 July 2003. The Court also ordered the Commission to bear its own costs and to pay those incurred by the applicant pursuant to Article 87(2) of the Rules of Procedure of the General Court.

3On 19 May 2008, the applicant sent a letter to the Commission requesting payment of its legal fees for the proceedings before the General Court, which it set at EUR 28000, not including miscellaneous expenses.

4By letter of 23 June 2008, the Commission asked the applicant to substantiate its claim for EUR 28000, specifying the services billed by its lawyers, their hourly rate and the number of hours spent on the case.

5By letters of 13 December 2008 and 21 January 2009, the applicant informed the Commission that the amount of costs claimed amounted to EUR 28000by way of lawyers’ fees and EUR 1000by way of miscellaneous expenses.

6On 6 February 2009, the Commission reiterated in writing its request for documentation for the costs claimed by the applicant.

7On 26 February 2010, the applicant sent the Commission two fee notes dated 18 July 2006 and 25 October 2008 respectively. The first fee note referred to an amount of EUR 4000, whilst the second stated EUR 13000by way of lawyers’ fees and EUR 1000by way of miscellaneous expenses.

8On 26 April and 24 August 2010, the applicant sent the Commission reminder letters.

9By letter of 3 September 2010, the Commission stated that it took the view that the applicant had still not substantiated all of the amounts claimed by way of costs and that, in those circumstances, it could not accede to the applicant’s claim for payment of costs.

10By letter of 10 November 2010, the applicant once again sent a reminder to the Commission.

11On 1 March 2012, the applicant sent the Commission a letter explaining that the fee notes attached to its letter of 26 February 2010 covered only the services rendered by the law firm G.S. Kostakopoulos in the period from May 2005 to November 2006, that firm having replaced MrPappas, the first lawyer who had been appointed to represent it in the case. Also attached to its letter of 1 March 2012 was fee note No2004/007 of 8 July 2004, in the amount of EUR 7500, for the work performed by MrPappas between August 2003 and July 2004, along with three bills, dated 4December 2003, 30 August 2004 and 30 September 2004 respectively, relating to services provided by another lawyer, MrDermitzakis, who had been engaged to assist MrPappas and to represent the applicant in the main proceedings in the period from August 2003 to November 2004.

12By letter of 28 March 2012, the Commission stated, in essence, that the new documents provided by the applicant did not enable an assessment to be made of the merits of the request for payment of costs, as they were not entirely unambiguous.

13Lastly, by letter of 17 September 2012, the applicant sent the Commission all of the fee notes substantiating the amount claimed by way of costs. It stated in that regard that the total amount of costs relating to the proceedings before the General Court was EUR 33497.95, but that it had decided to reduce the amount of its claim to EUR 29000. The applicant also claimed from the Commission overdue interest at the legal rate, owing as from 5 June 2008 on the amount of EUR 29000.

14By application lodged at the Court Registry on 4 October 2013, the applicant applied for taxation of costs pursuant to Article 92(1) of the Rules of Procedure, by which it asked the General Court, first, to set at EUR 29000the amount of recoverable costs to be reimbursed by the Commission and, second, to add to that amount overdue interest at the rate applied by the European Central Bank to its principal refinancing operations, plus three and a half percentage points, as from the first calendar day following notification of the order to the parties, until full payment of the costs claimed.

15By statement lodged at the Court Registry on 22 November 2013, the Commission asked the Court to fix the total amount of costs recoverable by the applicant at EUR 24000, comprising EUR 23000 by way of lawyers’ fees and EUR 1000 by way of miscellaneous expenses, plus overdue interest.

16By letter of 16 January 2015, put into the case-file, the applicant provided the Court with a more legible version of the fee note of 25 October 2008 (see paragraph 7 above), attached as an annex to its application.

Law

17As provided in Article 92(1) of the Rules of Procedure of the General Court, if there is a dispute concerning the costs to be recovered, the General Court hearing the case, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal lies.

18Under Article91(b) of the Rules of Procedure, ‘expenses necessarily incurred by the parties for the purpose of the proceedings, in particular, the travel and subsistence expenses and the remuneration of agents, advisers or lawyers’ are regarded as recoverable costs. It follows from that provision that recoverable costs are limited, first, to those incurred for the purposes of the proceedings before the Court and, second, to those that were necessary for that purpose (see order of 28 June 2004 in Airtours v Commission, T‑342/99 DEP, ECR, EU:T:2004:192, paragraph13 and the case-law cited).

19It is settled case-law that the European Union 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 General 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 the order in Airtours v Commission, paragraph18 above, EU:T:2004:192, paragraph17 and the case-law cited).

20It is also settled case-law that, in the absence of provisions of EU law laying down fee scales, the General 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, 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 in Airtours v Commission, paragraph18 above, EU:T:2004:192, paragraph18, and the case-law cited).

21It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.

The lawyers’ fees

Subject-matter, nature and importance of the dispute from an EU law perspective and difficulties of the case

22By its action, the applicant sought annulment of a decision of the Commission awarding a lot of a contract to another tenderer in a tendering procedure for the development and provision of services in support of the Community Research and Development Service (CORDIS). The main proceedings, in essence, involved the question whether the Commission had infringed the principle of equal treatment of candidates. That question was neither new nor of any particular complexity from a legal standpoint. It did, however, give rise to the production of voluminous annexes and highly technical content, as well as an in-depth analysis of the question whether the failure to make available to all prospective tenderers information on the technical specifications and the source code for CORDIS from the beginning of the tendering procedure, whereas the successful tenderer had had access to that information through the subcontract it had with the outgoing contractor, may have had significant negative repercussions for the applicant’s tender by depriving it of the opportunity to win the contract at issue. The main proceedings were therefore particularly factually and technically complex and carried a certain importance from an EU law standpoint.

The parties’ financial interest in the dispute

23The applicant states, without being contradicted by the Commission, that the estimated value of the contract to be awarded by the call for tenders ENTR/02/55 – CORDIS Lot No2 totalled EUR 5610592over a four-year period, which represented over 56.03% of the applicant’s annual turnover at the time it submitted its tender. Moreover, the applicant’s tender was for EUR 6095001.16whilst the successful tenderer’s tender was for EUR 5543392.07. The contract was thus of substantial financial interest to the parties.

The amount of work required by the proceedings from the applicant’s lawyers

24In the first place, it should be noted that the main proceedings generated a significant amount of work for the applicant’s lawyers. The legal proceedings before the General Court have involved two sets of statements being exchanged, written questions from the General Court put prior to the hearing, oral questions from the General Court put at the hearing, some of which the applicant had to answer in writing after the hearing and, lastly, a further written question put by the General Court to the applicant after the oral procedure had been reopened.

25However, contrary to the applicant’s assertions, the statements exchanged in the main proceedings were not particularly lengthy. Nor were the answers to the written and oral questions put by the General Court exceptionally long.

26In the second place, it is necessary also to point out that the ability of the Courts of the European Union to assess the value of work carried out is dependent on the accuracy of the information provided (see order in Airtours v Commission, paragraph18 above, EU:T:2004:192, paragraph 30 and the case-law cited).

27In the present case, the applicant has produced a number of fee notes in support of its claim for taxation of costs.

28Firstly, it produced invoice No 2003/006 of 23 December 2003 in the lump sum amount of EUR 7500relating to services rendered in connection with the legal proceedings before the General Court.

29Secondly, it produced invoice No 2004/007 of 8 July 2004 in the lump sum amount of EUR 7500relating to all services to be rendered in connection with the legal proceedings before the General Court, up to and including judgment in the case.

30In the written procedure before the General Court, the applicant stated that those two invoices concerned the work performed by Mr Pappas. It stated in that regard, first, that invoice No 2003/006 of 23 December 2003 covered the analysis of the file and the drafting and lodging of the application against the decision of 16 July 2003. It further stated that invoice No2004/007 of 8 July 2004 covered the analysis of the Commission’s statement in defence and the drafting and lodging of the reply, and the lodging of a request to be granted leave to reply in writing to the rejoinder, pursuant to Article 48(2) of the Rules of Procedure.

31The Court notes, however, that invoices No2003/006 and No2004/007 do not itemise the work performed by Mr Pappas; nor do they state the number of hours spent working on the file or the hourly rate charged. The assessment of the lump sum billed by Mr Pappas in the aforementioned invoices does by itself not shed any light on the amount of work actually performed by him.

32Thirdly, the applicant produced an invoice from the firm G.S. Kostakopoulos dated 25 October 2008 for a total amount of EUR 14000, including EUR 13000 by way of lawyers’ fees and EUR 1000 by way of miscellaneous expenses. Regarding the amount of EUR 13000 for lawyers’ fees, that fee note indicates that it was for the work performed by the three lawyers of the firm G.S. Kostakopoulos to whom the file was assigned, namely: analysis of the file, research on EU legislation and relevant case-law, correspondence with the applicant (telephone and e-mail), meetings with the applicant, drafting answers to the written questions from the General Court, preparation for the hearing, analysis of the Report for the Hearing, travel to Luxembourg, pleading at the oral hearing before the General Court, lodging written observations in response to the oral questions put by the General Court at the hearing and to the written questions put by the General Court after the hearing. That fee note also stated that the hourly rate charged by the firm G.S. Kostakopoulos was EUR 170and that a total of 76.5 billable hours had been spent on the file.

33However, that fee note did not specify how much time was spent by three lawyers of the firm G.S. Kostakopoulos working on each of the tasks listed above. Instead, it merely gave a breakdown of the time spent by the three lawyers by procedural stage: ‘examination of the file’, ‘questions from the General Court’, ‘hearing’ and ‘answers after the hearing’.

34In the light of the foregoing, the Court finds that the fee notes produced by the applicant do not contain sufficiently specific information, which makes it difficult to verify the costs incurred for the purpose of the proceedings before the General Court and how they were necessary for that purpose. In those circumstances, a strict assessment of the fees recoverable is necessary (see order of 23 October 2013 in Phonebook of the World v OHIM, T‑589/11DEP, EU:T:2013:572, paragraph 17 and the case-law cited).

35It should be observed, first of all, that the additional fees caused by the change in legal counsel after Mr Pappas had lodged the request to reply to the rejoinder can be held to be recoverable costs within the meaning of Article 91(b) of the Rules of Procedure only if that change was justified by reasons which made it impossible to continue the mandate of the counsel initially retained (see, to that effect, order of 19 February 2004, Latino v Commission, T‑300/97DEP, ECR, EU:T:2004:47, paragraph 19).

36Yet the applicant merely relies on its right to be free to revoke the mandate given to Mr Pappas, without giving any reasons for why it was impossible to continue with him.

37Accordingly, it is appropriate to deduct from the fees charged by the applicant’s successive lawyers the costs incurred by the change of counsel. The firm G.S. Kostakopoulos billed for examination of the file, whereas Mr Pappas had already examined the file and billed for that work. Therefore a deduction should be made from the fees billed by the firm G.S. Kostakopoulos for the fees relating to analysis of the file. In the absence of more specific information, the time spent examining the file by the firm G.S. Kostakopoulos can be assessed on an equitable basis at 10 hours. Given that the firm G.S. Kostakopoulos charges EUR 170per hour, the amount of fees billed by the firm for examining the file is therefore estimated at EUR 1700. That amount should be deducted from the lawyers’ fees claimed by the applicant.

38Next, invoice No2004/007 of 8 July 2004 referred specifically to all work to be performed up to the judgment of the General Court in the main proceedings, bearing in mind that the examination of the file and the drafting of the application had already been billed in fee note No2003/006 of 23 December 2003. Contrary to the applicant’s assertions (see paragraph 30 above), that invoice therefore covered both the work performed by Mr Pappas after the lodging of the application and all work remaining to be performed up to the judgment of the General Court in the main proceedings. That work thus included answers to any written questions from the General Court, and also representation of the applicant at the hearing. Yet it is clear that it was not Mr Pappas but rather the firm G.S. Kostakopoulos who answered the written questions from the General Court and who represented the applicant at the hearing on 13 July 2006. Accordingly, the Court considers that the amount of EUR 7500billed on 8 July 2004 does not entirely correspond to the work actually performed by Mr Pappas and is therefore excessive. In the absence of information about the hourly rate charged by Mr Pappas and the time spent by him to each of the tasks performed in connection with the main proceedings, it is appropriate to reduce the amount of his fees billed on 8 July 2004 to EUR 4000.

39In view of all the foregoing considerations, the costs recoverable by way of lawyers’ fees can be assessed on an equitable basis at EUR22800.

Disbursements

40The applicant asks the Court to fix recoverable costs by way of miscellaneous expenses at EUR 1000. In that regard it produced the invoice from the firm G.S. Kostakopoulos dated 25 October 2008, in which those expenses were broken down as follows: EUR 470for copying the file, EUR 90for copying the replies and documents addressed to the General Court, EUR 120for postage to send said replies and documents to the General Court, EUR 50for travel costs to Luxembourg, EUR 150for meals in Luxembourg and EUR 120for communication and correspondence costs.

41The amount of miscellaneous expenses claimed by the applicant is not challenged by the Commission.

42In the light of the foregoing, the amount of EUR 1000claimed by way of miscellaneous expenses does not seem unreasonable, notwithstanding the absence of documents produced in support of the amount claimed, apart from the invoice from the firm G.S. Kostakopoulos of 25 October 2008. Accordingly, the amount of costs recoverable by the applicant by way of disbursements is fixed at EUR 1000.

43It follows from all the foregoing considerations that all of the costs recoverable by the applicant in connection with proceedings before the General Court can be assessed on an equitable basis at EUR 23800.

Overdue interest

44The applicant asks the Court to order the Commission to pay overdue interest, in addition to the amount claimed by way of costs incurred in the main proceedings.

45The finding that there is an obligation to pay overdue interest and the fixing of the applicable rate fall within the jurisdiction of the General Court under Article 92(1) of the Rules of Procedure (see order of 16 January 2014 in Marcuccio v Commission, T‑450/10P‑DEP, EU:T:2014:32, paragraph 45 and the case-law cited).

46According to settled case-law, a request to add default interest to the amount owing in proceedings for taxation of costs must be upheld and applied as from the date on which the order for taxation of costs is served on the parties to the date of actual reimbursement of costs (see orders of 24 October 2011 in Marcuccio v Commission, T‑176/04DEPII, EU:T:2011:616, paragraph 38 and the case-law cited, and of 16 January 2014 in Marcuccio v Commission, T‑450/10P‑DEP, paragraph 45 above, EU:T:2014:32, paragraph 46).

47With regard to the rate of interest applicable, the Court considers it appropriate to take into account Article83(2)(b) of Commission Delegated Regulation (EU) No1268/2012 of 29October 2012 on the rules of application of Regulation (EU, Euratom) No966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L362, p.1). Consequently, the applicable rate shall be calculated on the basis of the rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points (see, to that effect, order of 16 January 2014, Marcuccio v Commission, T‑450/10P‑DEP, paragraph 45 above, EU:T:2014:32, paragraph 47).

On those grounds,

THE GENERAL COURT (First Chamber)

hereby orders:

1.The total amount of the costs to be reimbursed by the Commission to Evropaïki Dynamiki - Proigmena Systimata Tilepikoinonion Pliroforikis kai Tilematikis AE is fixed at EUR 23800.

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. The rate of interest to be applied shall be calculated on the basis of the rate applied by the European Central Bank to its principal refinancing operations in force on the first calendar day of the month in which the deadline falls, increased by three and a half percentage points.

Luxembourg, 6 March 2015.

* Language of the case: English.