ORDER OF THE COURT (First Chamber)
21 April 2005 (*)
(Taxation of costs)
In Case C-156/03 P-DEP,
APPLICATION for taxation of recoverable costs under Article 74 of the Rules of Procedure, lodged on 10 December 2004,
Les Laboratoires Servier SA, established in Neuilly-sur-Seine (France), represented byI.S.Forrester QC, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities, represented byR.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, K.Lenaerts, N.Colneric, K.Schiemann and E.Juhász,Judges,
Advocate General: J. Kokott,
Registrar: R. Grass,
after hearing the Advocate General,
makes the following
Order
1By application lodged on 4 April 2003, the Commission of the European Communities sought, in accordance with Article 225EC and the first subparagraph of Article 56 of the Statute of the Court of Justice, to have set aside the judgment of the Court of First Instance of the European Communities of 28 January 2003 in Case T-147/00 Laboratoires Servier v Commission [2003] ECR II-85, whereby the Court of First Instance had annulled Commission Decision C(2000)573 of 9 March 2000 concerning the withdrawal of marketing authorisations of medicinal products for human use which contain dexfenfluramine and fenfluramine (‘the contested decision’).
2By a separate document, lodged at the Court Registry on 4 April 2003, the Commission, in accordance with Article 242EC, requested the Court to order suspension of operation of the judgment in Laboratoires Servier v Commission. By order of 20 June 2003 in Case C-156/03 P-R Commission v Laboratoires Servier [2003] ECR I-6575, the President of the Court dismissed the application for suspension of operation of that judgment.
3By order of 1 April 2004 in Case C-156/03P Commission v Laboratoires Servier, not published in the ECR, the Court dismissed the Commission’s appeal and ordered it to pay the costs of the proceedings and of the interim measures proceedings.
4As Laboratoires Servier and the Commission were unable to agree on the amount of the recoverable costs, Laboratoires Servier requested the Court to adjudicate on the costs.
Arguments of the parties
5Laboratoires Servier evaluate the costs which they have incurred in the two sets of proceedings before the Court at EUR 48637. That sum may be broken down as follows:
–drafting the response to the Commission’s appeal: EUR 35901,
–drafting the observations in response to the Commission’s application for suspension of operation of the judgment: EUR 12736.
6In order to substantiate those amounts, Laboratoires Servier produced before the Court the fee notes drawn up by its counsel during the period April 2003 to August 2004.
7In support of their application for taxation, Laboratoires Servier claim that the Commission’s appeal entailed a detailed examination of arguments, not all of which had been raised before the Court of First Instance. Detailed research into the ‘principle of maintenance’ was required, and it was also necessary to attend the hearing in the related case of C-39/03P Commission v Artegodan [2003] ECR I‑7885.
8Furthermore, the stakes in the dispute were extremely important to Laboratoires Servier, which ascribe fundamental importance to customer safety and were therefore justified in using all available means to demonstrate that their products are harmless.
9Laboratoires Servier emphasise that the Commission was unsuccessful at every stage of the proceedings. In spite of the letter which they sent to the Commission in August 2004, the Commission refused to withdraw following pronouncement of the judgment in Commission v Artegodan and Others, and the appeal was dismissed as unfounded.
10The Commission proposes that the Court should fix the amount of recoverable costs relating to all the proceedings before the Court of First Instance and the Court of Justice at EUR 40000, including EUR 14000 for both sets of proceedings before the Court of Justice.
11In its submission, Laboratoires Servier considerably overestimate the importance of the order of 1 April 2004 in Commission v Laboratoires Servier. Although the Court of First Instance annulled the contested decision on a number of grounds which might be of significance to the pharmaceutical sector, the order, like the judgment in Commission v Artegodan and Others, related to only a limited aspect.
12The Commission acknowledges that the case leading to the judgment of the Court of First Instance in Laboratoires Servier v Commission was indeed complex. On the other hand, the appeal before the Court of Justice was limited to a few specific points of law and to a large extent repeated arguments already considered by the Court of First Instance.
13As regards the extent of the work carried out, the Commission contends that the total number of hours worked and the costs incurred would have been less if Laboratoires Servier had been represented by a single counsel. Certain expenditure, such as the costs of communication and photocopying, come within the general costs of lawyers’ chambers. Furthermore, the hourly rate billed by one of the counsel seems to be exorbitant.
Findings of the Court
14Under 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 to be regarded as recoverable costs.
15As Community law contains no provisions laying down a scale of fees, the Court must freely assess 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, and also the difficulties presented by the case, the amount of work generated by the dispute for the agents or counsel involved and the financial interest which the parties had in the proceedings (see, in particular, order of 30 November 1994 in Case C-222/92DEP SFEI and Others v Commission [1994] ECR I-5431, paragraph 14; order of 8 July 2004 in Case C-286/95P-DEP ICI v Commission [2004] ECR I-0000, paragraph 17; and order of 15 December 2004 in Case C‑39/03P-DEP Cambridge Healthcare Supplies v Commission, not published in the ECR, paragraph 19).
16The amount of the recoverable costs must be assessed in the light of those criteria.
17As regards the financial interest which the parties had in the proceedings, it must be held, in the light of the assertions of Laboratoires Servier, which were not disputed by the Commission, that the outcome of such proceedings was of great significance for that company.
18As regards the purpose and nature of the proceedings, it must be borne in mind that the proceedings related to an appeal, together with an application to suspend operation of the judgment of the Court of First Instance in Laboratoires Servier v Commission. Such proceedings are by their very nature limited to questions of law and do not have as their purpose the establishment of facts.
19In the present case, the Commission’s appeal dealt with a single question of law.
20That question related to the Court of First Instance’s reasoning concerning the Commission’s lack of competence to adopt the contested decision and involves 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 L147, p.13), as amended by Council Directive 93/39/EEC of 14 June 1993 (OJ 1993 L214, p.22).
21As for the fact that the Commission did not withdraw its appeal following pronouncement of the judgment in Commission v Artegodan and Others, it must be borne in mind that the parties’ attitude is of no relevance for the calculation of the costs. Unlike Article 69(5) of the Rules of Procedure, where the parties’ conduct may be taken into consideration by the Court for the purpose of determining which party is to pay the costs, under Article 74(1) of the Rules of Procedure the Court adjudicates only on the recoverable costs, a concept defined in Article 73 of the Rules of Procedure (order of 28 June 2002 in Case C‑320/96P-DEP Metropole Television v UER, not published in the ECR, paragraph 23).
22In that regard, the Court has observed that Article 15a of Directive 75/319 applies to the marketing authorisations which were granted according to the mutual recognition procedure together with arbitration procedures provided for in Chapter III of that directive. The Court held that that provision cannot serve as the legal basis for decisions of the Commission ordering Member States to withdraw marketing authorisations initially granted in the context of purely national procedures even if they are subsequently subject to partial harmonisation in respect of the content of the clinical information relating to the product concerned (order of 1 April 2004 in Commission v Laboratoires Servier, paragraphs 38 to 46).
23The question of law raised in the appeal did admittedly reveal the existence of a major legal disagreement whose resolution was not immediately obvious (see order of 20 June 2003 in Commission v Laboratoires Servier, paragraph 34).
24As regards the amount of work that Laboratoires Servier’s counsel were required to provide in the appeal proceedings, it must however be observed that that question of law was clearly delimited and that it had already been analysed in depth by Laboratoires Servier at first instance, so that the arguments put forward in the appeal to a large extent reiterated those submitted to the Court of First Instance.
25It follows that, even taking into consideration the additional work generated by the application for suspension of operation of the judgment of the Court of First Instance in Laboratoires Servier v Commission, the burden placed on Laboratoires Servier’s counsel corresponded to that of a case having a certain degree of complexity, but without being exceptional.
26In those circumstances, the lawyers’ fees of EUR 48637 claimed by Laboratoires Servier do not correspond to amounts which were objectively indispensable in order to ensure the defence of its interests in the appeal and the interim measures proceedings.
27Accordingly, and regard being had to the criteria set out at paragraph 15 of this order, the amount of recoverable lawyer’s fees, including those relating to the present application for taxation, must be set at EUR 20000.
On those grounds, the Court (First Chamber) hereby orders:
The total amount of the costs which the Commission of the European Communities must reimburse to Laboratoires Servier is fixed at EUR 20000.
[Signatures]
* Language of the case: English.