In Case C-77/99 ORDER OF THE COURT (Third Chamber)

ORDER OF THE COURT (Third Chamber)

4 February 2004 (1)

(Taxation of costs)

In Case C-77/99 DEP,

Commission of the European Communities, represented by R.B. Wainwright, acting as Agent, assisted by M. Núñez-Müller, Rechtsanwalt, with an address for service in Luxembourg,

applicant,

v

Oder-Plan Architektur GmbH, in liquidation, established in Berlin (Germany), acting by its liquidator, C. Schlote,

NCC Deutsche Bau GmbH, formerly NCC Siab Bau GmbH, established in Fürstenwalde (Germany), acting by its administrator, K. Bauer, represented by D. Stoecker, Rechtsanwalt,

and

Esbensen Consulting Engineers, established in Virum (Denmark), represented by D. Stoecker,

defendants,

APPLICATION for taxation of recoverable costs following the judgment of the Court of 11 October 2001 in Case C-77/99 Commission v Oder-Plan Architektur and Others [2001] ECR I-7355,

THE COURT (Third Chamber),

composed of: A. Rosas, President of the Chamber, R. Schintgen and N. Colneric (Rapporteur), Judges,

Advocate General: J. Kokott,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

Background to the dispute and forms of order sought by the Commission

1.

By application lodged at the Court Registry on 3 March 1999, the Commission of the European Communities brought an action under Article 181 of the EC Treaty (now Article 238 EC) for an order requiring Oder-Plan Architektur GmbH (hereinafter ‘Oder-Plan’), NCC Deutsche Bau GmbH (hereinafter ‘Deutsche Bau’) and Esbensen Consulting Engineers (hereinafter ‘Esbensen’) jointly and severally to pay it EUR 54 510, plus interest of EUR 20 798.70 for the period from 1 January 1993 to 15 January 1999, and, as from 16 January 1999, interest at the rate applied by the European Monetary Cooperation Fund for its euro transactions, plus 2% of the principal amount of EUR 54 510.

2.

The dispute arose from a contract granting Community financial support for implementation of a project in the energy sector. After it had terminated the contract, the Commission sought repayment of part of the support.

3.

By judgment of 11 October 2001 in Case C-77/99 Commission v Oder-Plan Architektur and Others [2001] ECR I-7355, the Court, first, ordered Oder-Plan, by default, jointly and severally with Deutsche Bau and Esbensen, to pay to the Commission the sum of EUR 54 510, plus interest of EUR 12 077.09 for the period from 1 January 1995 to 15 January 1999. Secondly, it ordered Deutsche Bau and Esbensen, jointly and severally as between each other and with Oder-Plan, to pay to the Commission the sum of EUR 54 510, plus interest of EUR 12 077.09 for the period from 1 January 1995 to 15 January 1999. It dismissed the remainder of the application. It also ordered Oder-Plan, Deutsche Bau and Esbensen, jointly and severally, to pay the costs.

4.

Following this judgment, the Commission informed Deutsche Bau and Esbensen by letter of 12 November 2001 that the costs to be paid by them amounted to EUR 5 949.54 in respect of lawyer's fees and EUR 250 in respect of administrative expenses. The invoices for the fees submitted by the Commission's lawyer were annexed to the letter.

5.

By letter of 27 November 2001, Deutsche Bau and Esbensen refused to pay the sums demanded by the Commission. ... They stated that the maximum sum owed by the defendants ... to the Commission was DEM 4 930, that is to say EUR 2 520.67.

...

8.

The defendant Oder-Plan has not responded to either the demands for payment, or the notes of expenses or the reminders sent by the Commission and has not made any payment.

9.

In these circumstances, the Commission, by application lodged on 19 December 2002 under Article 74(1) of the Rules of Procedure, requested the Court to tax the costs payable by the defendants, as the parties jointly and severally liable to make payment thereof, amounting in aggregate to EUR 8 199.44.

Substance

Arguments of the parties

...

Findings of the Court

...

18.

As regards lawyers' fees, Community law has no rules relating to payment on a fixed fee basis or in relation to the number of hours requiring to be worked in any particular case. The Court should therefore make a general assessment of the circumstances of the case, having regard to the nature and purpose of the case, its importance in the field of Community law, and the difficulties of the case, the amount of work the procedure before the Court may have given rise to on the part of agents or counsel instructed in it, and the financial importance of the dispute for the parties to it (see order of 6 January 2004 in Case C-104/89 DEP Mulder and Others v Council and Commission [2004] ECR I-0000, paragraph 51).

...

22.

In the light of the foregoing, the sum of EUR 5 949.44 requested in respect of lawyers' fees in relation to the procedure in the main proceedings does not exceed what was necessarily incurred within the meaning of Article 73(b) of the Rules of Procedure.

23.

With respect to the administrative expenses, an amount of EUR 250 is also appropriate, having regard to the fact that this includes not only internal administrative expenses for copying, but also expenses relating to travel to the hearing.

24.

As regards the expenses relating to the taxation procedure, by contrast with Article 69(1) of the Rules of Procedure, which provides that a decision as to costs is to be given in the final judgment or in the order which closes the proceedings, a similar provision does not appear in Article 74 of the said Rules. This is because, when determining the recoverable costs, the Court takes into account all the circumstances of the case until the order for taxation of the costs is pronounced. Accordingly, it is, first, unnecessary to decide separately on the costs incurred for the purposes of this procedure (see the order in Mulder, cited above, paragraph 87). Secondly, this means that the necessary expenses incurred in relation to this procedure are recoverable (see, to that effect, Mulder, paragraphs 87 and 88).

25.

Nevertheless, having regard to the matters referred to in paragraph 18 of this order, the sum of EUR 2 000 claimed in this respect considerably exceeds what may be regarded as an appropriate figure. In that regard, it should be noted in particular that it was only a sum of EUR 3 678.77 that was truly in dispute.

26.

In these circumstances, the total of the recoverable costs should be set at EUR 6 600.

On those grounds,

THE COURT (Third Chamber)

hereby orders:

The total costs to be paid to the Commission of the European Communities by Oder-Plan Architektur GmbH, NCC Deutsche Bau GmbH and Esbensen Consulting Engineers, as the parties jointly and severally liable to make payment thereof, are set at EUR 6 600.

Luxembourg, 4 February 2004.

R. Grass

A. Rosas

Registrar

President of the Third Chamber

1: Language of the case: German.