Tribunal de Justicia de la Unión Europea
In Case C-39/03 ORDER OF THE COURT (First Chamber)15 December 2004 (1)
Fecha: 15-Dic-2004
- 1 By an appeal lodged on 3 February 2003, the Commission of the European Communities, in accordance with Articles 225EC and the first paragraph of Article 56 of the Statute of the Court of Justice, sought to have set aside the judgment of the Court of First Instance of the European Communities of 26 November 2002 in Joined Cases T‑74/00, T‑76/00, T‑83/00 to T‑85/00, T‑132/00, T‑137/00 and T‑141/00 Artegodan and Others v Commission [2002] ECR II‑4945, by which the Court of First Instance annulled, in so far as they related to the medicinal products marketed by the 16 applicants at first instance, including Cambridge Healthcare Supplies Ltd (‘Cambridge’), Commission Decisions C(2000) 452, C (2000) 453 and C (2000) 608 of 9 March 2000 concerning the withdrawal of marketing authorisations of medicinal products for human use containing phentermine (Decision C (2000) 452), amfepramone (Decision C (2000) 453) and other ‘amphetamine-like’ anorectic substances, inter alia norpseudophedrine, clobenzorex and fenproporex (Decision C(2000) 608) (together ‘the decisions at issue’).
- 2 By separate document, lodged at the Court Registry on 3 February 2003, the Commission, pursuant to Article 62a of the Rules of Procedure, applied for an order that the case be subject to an expedited procedure. The President of the Court granted the application.
- 3 By a second separate document, lodged at the Registry on the same date, the Commission, pursuant to Article 242 EC, applied to the Court for an order suspending operation of the judgment in Artegodan and Others v Commission, cited above. By order of 8 May 2003 in Case C‑39/03 P‑R Commission v Artegodan and Others [2003] ECR I‑4485, the President of the Court dismissed the application for suspension of operation of the judgment.
- 4 By judgment of 24 July 2003 in Case C‑39/03 P Commission v Artegodan and Others [2003] ECR I-7885, the Court dismissed the Commission’s appeal and ordered it to pay the costs of those proceedings and of the application for interim relief.
- 5 Since no agreement has been reached between Cambridge and the Commission on the amount of recoverable costs, Cambridge has asked the Court to adjudicate on costs.
- 6 Cambridge assesses the costs which it has incurred in the two sets of proceedings before the Court of Justice at GBP 49 264.35 (around EUR 70000). That amount can be broken down as follows:
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- lawyers’ fees and disbursements GBP 46 187.87;
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- travel and subsistence costs in Luxembourg GBP 3076.48.
- 7 Cambridge also seeks payment of an amount of GBP 2 500 for costs in respect of this application for taxation.
- 8 In order to support those amounts, Cambridge produced to the Court fee notes prepared by its advisers for the period from March 2000 to August 2003.
- 9 In support of its application for taxation of costs, Cambridge submits that the case culminating in the judgment in Commission v Artegodan and Others, cited above, was of the greatest importance from the point of view of Community law, in that the judgment has clarified the division of powers between the Member States and the Commission in the matter of the safety of medicinal products.
- 10 The proceedings before the Court entailed a detailed legal analysis of the procedures for authorisation to market medicinal products in the Community as well as a thorough analysis of the legislative background to those procedures.
- 11 The proceedings also entailed a detailed analysis of the scientific and empirical data available concerning phentermine’s safety and efficacy.
- 12 In Cambridge’s submission, such analytical work, carried out by three lawyers, was divided between them so as to ensure that the most time-consuming work, whenever possible, was done to the greatest extent by the lawyer with the lowest charge-out rate.
- 13 Furthermore, the case was of the utmost financial significance to Cambridge, which, in March 2000, had a turnover in the region of GBP 750000 per annum, with sales of phentermine representing 35 to 40% of that turnover. Commission Decision C(2000) 452, adopted in March 2000, requiring the Member States to withdraw the marketing authorisations from medicinal products containing phentermine, resulted in substantial losses to Cambridge. If the decision had been upheld Cambridge would have been unlikely to survive.
- 14 The Commission proposed that the Court should fix the amount of recoverable costs in respect of all the proceedings before the Court of First Instance and the Court of Justice at EUR 50 000, EUR 15 000 of which was for the two sets of proceedings before the Court of Justice.
- 15 According to the Commission, Cambridge considerably overestimates the significance of the judgment in Commission v Artegodan and Others. Although the Court of First Instance annulled the decisions at issue for a number of reasons which might be of importance for the pharmaceutical sector, the judgment itself concerns only a single issue.
- 16 It is true that the case culminating in the judgment of the Court in First Instance in Artegodan and Others v Commission was complex. Conversely, the appeal to the Court of Justice was confined to a few specific points of law and was to a large extent a repetition of the arguments already considered by the Court of First Instance.
- 17 As regards the amount of work carried out, the Commission contends that the total number of hours worked and the costs incurred would have been less if Cambridge had been represented by a single lawyer. Certain costs, such as communication and copying costs, are part of law firms’ general expenses. Translation costs were not necessary, since the documents were available in English.
- 18 Under Article 73(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.
- 19 Since Community law does not contain any provisions laying down a scale of fees, the Court must consider all the facts of the case, taking into account the purpose and nature of the proceedings, their significance from the point of view of Community law, as well as the difficulties presented by the case, the amount of work generated by the dispute for the agents and advisers involved and the financial interest which the parties had in the proceedings (see, inter alia, the orders of 30November 1994 in Case C‑222/92 DEP SFEI and Others v Commission [1994] ECR I‑5431, paragraph 14, of 17 February 2004 in Case C‑321/99 P‑DEP DAI v ARAP and Others, not published in the European Court Reports, paragraph 16, and of 8 July 2004 in Case C‑286/95 P‑DEP ICI v Commission, not published in the European Court Reports, paragraph 17).
- 20 The amount of recoverable costs must be assessed by reference to those criteria.
- 21 As regards the economic interests which the proceedings represented for the parties, it must be held, in the light of Cambridge’s statements, which have not been challenged by the Commission, that the outcome of such proceedings was of great financial significance to the company.
- 22 As to the purpose and nature of the proceedings, it must be borne in mind that they entailed an appeal coupled with an application for suspension of operation of the judgment in Artegodan and Others v Commission, and an application for expedited procedure. Against that background, it must be stated that the supporting documents provided by Cambridge, which relate to the period from 1 March 2000 to 13 August 2003, consist of fee notes prepared for various periods, none of which coincides with the period of the proceedings before the Court of Justice. In the absence of a summary specifically relating to those proceedings, the distinction between the work necessary for those proceedings and the work relating to broader advisory activities does not emerge with sufficient clarity.
- 23 An appeal, by virtue of its very nature, is confined to points of law and its purpose is not to make findings of fact.
- 24 In this instance, the Commission’s grounds of appeal, to which Cambridge was required to respond, concerned two points of law.
- 25 The first concerned the Court of First Instance’s reasoning in respect of the Commission’s lack of competence to adopt the decisions at issue and concerned the interpretation of Article 15a of Second Council Directive 75/319/EEC of 20 May 1975 on the approximation of provisions laid down by law, regulation or administrative action relating to proprietary medicinal products (OJ 1975 L 147, p. 13), as amended by Council Directive 93/39/EEC of 14 June 1993 (OJ 1993 L214, p. 22).
- 26 In that regard, the Court stated that Article 15a of Directive 75/319 applies to marketing authorisations which have been granted in accordance with the mutual recognition procedure coupled with arbitration procedures, provided for by Chapter III of the directive. It held that Article 15a could not be used as a legal basis for the Commission’s decisions requiring the Member States to withdraw the marketing authorisations initially granted under purely national procedures, even though they were subsequently subject to partial harmonisation relating to the clinical particulars about the product concerned (Commission v Artegodan and Others, paragraphs 44 to 51).
- 27 In those circumstances, the Court did not examine the second point of law, which related to the Court of First Instance’s interpretation of the conditions for withdrawal of the marketing authorisations and concerned the interpretation of Article 11 of Council Directive 65/65/EEC of 26 January 1965 on the approximation of provisions laid down by law, regulation or administrative action relating to medicinal products (OJ, English Special Edition 1965-1966, p.20), as amended by Directive 93/39.
- 28 The two points of law raised in the appeal admittedly showed that there was a major legal disagreement whose resolution was not immediately obvious (see the order in Commission v Artegodan and Others, paragraph 40).
- 29 As to the amount of work which Cambridge’s lawyers were required to carry out in the appeal proceedings, it must none the less be stated that the points of law were clearly defined and had already been thoroughly analysed by Cambridge at first instance and therefore the arguments advanced in the course of the appeal restated to a great extent those which had been raised before the Court of First Instance.
- 30 It follows that, even if account is taken of the extra work generated by the application for suspension of operation of the judgment in Artegodan and Others v Commission and by the application for accelerated procedure brought by the Commission, the workload imposed on Cambridge’s advisers was consistent with that of a case of some significance but was none the less not exceptional.
- 31 In those circumstances, lawyers’ fees and disbursements amounting to GBP46187.87, as claimed by Cambridge, do not correspond to amounts objectively necessary for ensuring that the company’s interests were defended in the context of the appeal.
- 32 In those circumstances and in view of the criteria set out at paragraph 19 of this order, it is appropriate to set the amount of recoverable costs in respect of lawyers’ fees and disbursements at GBP 20 000, including costs relating to this application for taxation.
- 33 As to the travel and subsistence expenses of GBP 3076.48, incurred by Cambridge’s three lawyers for the purpose of attending the hearing before the Court on 10 June 2003, it must be stated that, for the same reasons as those set out at paragraph 29 of this order, the presence of three representatives at the hearing was not necessary. The amount in respect of those expenses must therefore be limited to GBP 2000.
- 34 In the light of the foregoing considerations, the Court will make an equitable assessment of the recoverable costs by fixing their total amount at GBP 22000.
ORDER OF THE COURT (First Chamber)
15 December 2004 (1)
(Taxation of costs)
In Case C-39/03 P-DEP,APPLICATION for taxation of recoverable costs pursuant to Article 74 of the Rules of Procedure, brought on 12 May 2004,
Cambridge Healthcare Supplies Ltd, established in Rackheath (United Kingdom), represented by D.Vaughan QC, K.Bacon, barrister, and S.Davis, solicitor,
applicant,
Commission of the European Communities, represented by R.B.Wainwright and H.Støvlbæk, acting as Agents, with an address for service in Luxembourg,
THE COURT (First Chamber),
composed of P.Jann (Rapporteur), President of the Chamber, N.Colneric, J.N.CunhaRodrigues, E.Juhász and E.Levits, Judges,
Advocate General: J. Kokott,
Registrar: R. Grass,
having heard the views of the Advocate General,
rnakes the present
Order
Arguments of the parties
Findings of the Court
On those grounds, the Court (First Chamber) orders:
The total costs to be reimbursed by the Commission of the European Communities to Cambridge Healthcare Supplies Ltd are fixed at GBP22000.
[Signatures]
- 1 –
- Language of the case: English.