In Case T‑28/02

ORDER OF THE COURT OF FIRST INSTANCE (Third Chamber) (*)

(Taxation of costs)

In Case T‑28/02DEP,

First Data Corp., established in Wilmington, Delaware (United States),

FDR Ltd, established in Wilmington, Delaware,

First Data Merchant Services Corp., established in Sunrise, Florida (United States),

represented by P.Bos and E.Mollen, lawyers,

applicants,

v

Commission of the European Communities, represented by R.Wainwright and T.Christoforou, acting as Agents,

defendant,

supported by

Visa International Service Association, established in London (United Kingdom), represented by V. Turner, Solicitor,

intervener,

APPLICATION for taxation of costs to be paid by the intervener to the applicants pursuant to the order of the Court of First Instance of 6 April 2005 in Case T‑28/02 First Data and Others v Commission, not published in the ECR,

THE COURT OF FIRST INSTANCE OF THE EUROPEAN COMMUNITIES (Third Chamber),

composed of M.Jaeger, President, V.Tiili and O.Czúcz, Judges,

Registrar: E.Coulon,

makes the following

Order

Facts, procedure and forms of order sought by the parties

1By application lodged at the Registry of the Court of First Instance on 4 February 2002 and registered under number T‑28/02 the applicants brought an action for annulment in part of Commission Decision 2001/782/EC of 9 August 2001 relating to a proceeding under Article 81 of the EC Treaty and Article 53 of the EEA Agreement (Case No COMP/29.373 – Visa International) (OJ 2001 L293, p.24) (‘the contested decision’). By that decision the Commission had granted negative clearance in relation to certain provisions of the rules and regulations governing the Visa International Service Association (‘Visa’) payment card system, in particular the rule making acquisition conditional on issuing (no-acquiring-without-issuing rule).

2By document lodged at the Court Registry on 17 June 2002, Visa sought leave to intervene in support of the form of order sought by the Commission.

3By letter of 4 July 2002, the applicants sought an order pursuant to Article 116(2) of the Rules of Procedure of the Court of First Instance that certain information in their observations on the plea of inadmissibility be given confidential treatment, on the ground that these contained trade secrets.

4By order of 20 January 2003, Visa was granted leave to intervene in support of the form of order sought by the Commission.

5By document lodged on 12 February 2003, Visa submitted its objections to the request for confidential treatment. By document registered on 10 April 2003, the applicants lodged their observations on those objections.

6By order of the Court of 14 August 2003, the request for confidential treatment was granted in relation to the information contained in the fourth to seventh sentences of paragraph 6, the third sentence of paragraph 7 and the third and fourth sentences of paragraph 13 of the applicants’ observations on the plea of inadmissibility. The costs were reserved.

7By letter of 28 January 2005, Visa informed the Court of its decision to abolish the rule at issue with immediate effect in the European region of the Visa card scheme. In addition, Visa withdrew its intervention.

8By letter of 3 February 2005, the Court requested the parties to submit their observations on Visa’s withdrawal and on the issue whether the action had become devoid of purpose.

9By order of 6 April 2005, following its withdrawal from the proceedings, Visa was removed from the Court Register as an intervener. Under Article 87(5) of the Rules of Procedure, Visa was ordered to bear its own costs and to pay the costs of the applicants and of the Commission relating to its intervention.

10Since the parties had not been able to come to an agreement on the amount of the costs to be reimbursed, the applicants, by document lodged at the Court Registry on 8 February 2006, made an application under Article 92(1) of the Rules of Procedure for taxation of costs, in which they requested the Court to fix the amount of the costs payable by Visa at EUR 87574 and USD 40804.97.

11Visa contends that the Court should fix the recoverable costs at an amount which it considers reasonable, but not exceeding the sum of EUR 15000, dismiss the application for the amount of USD 40804.97 relating to the costs of the expert economist’s advice, and order the applicants to pay Visa’s costs relating to this application for taxation of costs.

Law

Arguments of the parties

12The applicants declare that the time billed by their counsel and by the expert economist relates solely to matters linked to Visa’s intervention.

13The applicants maintain that in total 481 hours and 55 minutes have been billed that were related exclusively to Visa’s intervention, that is, 392 hours and 30 minutes spent by First Data’s counsel, representing a total of EUR 87574, and 89 hours and 25 minutes of work by the expert economist, representing a total of USD 40804.97.

14The applicants submit that the proceedings were significant from the point of view of Community law, since this was the first time a case concerning access to international payment card networks had come before the Community Courts.

15The applicants consider that Visa did not merely adopt the Commission’s arguments, but put forward legally and economically distinct arguments to which the applicants had to respond, and that this caused a significant increase in their workload as well as the production of extensive documents, including the observations of an expert economist, dealing with both legal and economic observations made by Visa. On this point, the applicants refer to paragraphs 39 to 43 and paragraphs 65 to 72 of their observations on Visa’s statement in intervention.

16As regards the financial interest that the parties had in the proceedings, the applicants maintain that there can be no doubt that the case was of considerable financial importance for them from the point of view of access to the market solely as acquirer.

17Finally the applicants consider that the decision as to the amount to be reimbursed by Visa should be made by analogy with Article 87(3) of the Rules of Procedure, with which a parallel can be drawn.

18Visa considers that the applicants’ request is neither reasonable nor justified. Further, Visa does not believe that the expenses are exclusively related to Visa’s intervention.

19Visa maintains that a breakdown of the costs shows that many of these costs are not related to Visa’s intervention but to the action for annulment brought by the applicants against the contested decision.

20In addition, as a result of the application and the reply, the applicants’ lawyers were already aware of the facts of the case, and consequently the intervention can have given rise to only a relatively small amount of additional work for them. The applicants’ lawyers were also involved in the administrative proceedings before the Commission, on behalf of another client, and consequently had complete knowledge of the case, knowledge which they used for the main proceedings. This is confirmed by the fact that, in their observations on Visa’s statement in intervention, the applicants referred on a number of occasions to arguments already developed in the application or the reply.

21Visa contends that the proceedings were not significant from the point of view of Community law, since they concerned only one specific rule of the Visa payment system.

22Visa submits that no satisfactory justification has been provided as to why the costs of an economist should be reimbursed as a result of Visa’s intervention in the main proceedings. Further, the economist did not produce any report or document which was submitted to the Court. Consequently, none of his costs should be found to be reimbursable.

23Visa maintains that an estimated amount of 50 hours at such rate as the Court considers reasonable would seem appropriate for the ‘extra work’ required solely by the intervention, to protect the applicants’ interests, from the lodging of the application for leave to intervene up to the present proceedings on costs.

24As regards the request to apply Article 87(3) of the Rules of Procedure by analogy, Visa argues that the order of the Court of 6 April 2005 orders Visa to pay those costs incurred by the applicants in relation to Visa’s intervention on the basis of Article 87(5) of the Rules of Procedure, not Article 87(3).

25In addition, costs which are not reasonable or are not related to the intervention are not covered by the order. Thus even if Visa had acted unreasonably or vexatiously, which is not the case, Article 87(3) does not allow a decision that Visa should pay costs which are excessive or costs incurred in relation to the application itself and not as a result of Visa’s intervention.

Findings of the Court

26Under Article 91(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. It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court of Justice and the Court of First Instance, and, second, to those which were necessary for that purpose (orders of the Court of First Instance in Case T‑38/95DEP Groupe Origny v Commission [2002] ECR II‑217, paragraph 28, and of 18 April 2006 in Case T‑132/01DEP Euroalliages and Others v Commission, not published in the ECR, paragraph 29).

27According to a consistent line of decisions, the Community 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 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 (orders of the Court of First Instance in Case T‑120/89DEP Stahlwerke Peine-Salzgitter v Commission [1996] ECR II‑1547, paragraph 27; in Case T‑80/97DEP Starway v Council [2002] ECR II‑1, paragraph 26; and of 3 October 2006 in Case T‑74/00DEP Artegodan v Commission, not published in the ECR, paragraph 42).

28In the absence of Community provisions laying down fee-scales, the Court must make un 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 Community law as well as the difficulties presented by the case, the amount of work generated by the proceedings before the Court for the agents or advisers involved, and the financial interests which the parties had in the proceedings (orders of the Court of First Instance in Starway v Council, paragraph 27, and of 20 December 2004 in Case T‑123/00DEP Thomae v Commission, not published in the ECR, paragraph 22).

29Although it was open to the applicants in the circumstances of this case to entrust, as they maintain they did, the protection of their interests to several advisers at the same time, so as to obtain the services of more experienced lawyers while entrusting the more time-consuming work to lawyers charging lower fees, the primary consideration of which the Court must take account is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (orders of the Court of First Instance in Joined Cases T‑226/00DEP and T‑227/00DEP Nan Ya Plastics and Far Eastern Textiles v Council [2003] ECR II‑685, paragraph 44; of 29 October 2004 in Case T‑77/02DEP Schneider Electric v Commission, not published in the ECR, paragraph 58; and Artegodan v Commission, paragraph 52).

30In that respect, the ability of the Community judicature to assess the value of the work carried out is dependent on the accuracy of the information provided (orders in Stahlwerke Peine-Salzgitter v Commission, paragraph 31, and in Schneider Electric v Commission, paragraph 59).

31Finally, according to the case-law, the failure to produce the invoices or other documents in evidence of the actual payment of the legal fees and expenses incurred does not prevent the Court making a fair assessment and fixing the amount of the recoverable costs (order of the Court of Justice of 17 February 2004 in Case C‑321/99P‑DEP DAI v ARAPand Others, not published in the ECR, paragraphs 9 to 13, and order of the Court of First Instance of 2 May 2005 in Case T‑82/96DEP ARAP and Others v Commission, not published in the ECR, paragraphs 17, 19 and 20).

32The amount of the costs recoverable in this case must be assessed in the light of those criteria, remembering that Visa was ordered to pay the costs of the applicants solely in relation to its intervention. In that connection, it must be borne in mind that, as a general rule, the procedural task of a principal party is significantly aided when it relates to an intervention. As an intervention is, by its nature, subordinate to the main action, responding to an intervention cannot therefore present as many difficulties as the principal action, save in exceptional cases.

33In the first place, the case had a certain significance from the point of view of Community law, since what was at issue was a possible obstacle to access to the market of great economic significance.

34For the same reasons, it is important to recognise, in the second place, that the applicants had significant financial interests at stake in the case. On this point, however, account must also be taken of the fact that annulment of the contested decision would not have given the applicants access to the acquiring scheme of the Visa network, since they did not possess a banking licence. Since the requirement of a banking licence in order to become a member of Visa was not the subject of the contested decision and since the Court could not substitute its assessment for that of the Commission, annulment of the part of the contested decision relating to the rule at issue in the main proceedings would not have had any direct effect as regards the legality of the rule that members of Visa must be banking institutions (order of the Court of First Instance in Case T‑28/02 First Data and Others v Commission [2005] ECR II‑4119, paragraph 52).

35As regards, in the third place, the amount of work generated by the proceedings before the Court for the applicants’ advisers, it must be recalled that the applicants lodged, first of all, their observations on Visa’s application for leave to intervene, in which they did not submit any objections to Visa’s intervention. That document consisted of 10 lines. Then, the applicants lodged an application for confidential treatment of certain matters in their observations on the plea of inadmissibility as regards Visa, which amounted to two pages. When Visa objected to the exclusion of those matters by means of a document of four pages, the applicants had to lodge their observations on those objections. Their observations were presented in a document of four pages.

36Visa’s statement in intervention amounted in total to 20 pages. Annexed to that statement were three documents, of which the first two were copies of the orders previously made in this same case, and the third a copy of a brochure of four pages designed to show that there were also other companies exercising the same activity in Europe as First Data Merchant Services. The applicants’ observations on Visa’s statement in intervention were presented over 29 pages, without any annexes. Finally the applicants had to lodge their observations on Visa’s withdrawal in a document containing three pages.

37Consequently, it must be declared that the only procedural document of significance, as to its content, which the applicants lodged in connection with the intervention is their observations on the statement in intervention. In this regard, it must be noted that the applicants themselves argued in paragraph 3 of that document that Visa often reproduced the Commission’s arguments in its intervention. Moreover, on many occasions in their observations on the statement in intervention, the applicants state that they are repeating what they presented in their application or in the reply. Accordingly, it is important to recall that the applicants’ advisers already had extensive knowledge of the case-file at issue after having brought the action in the main proceedings. That was such as not only to assist their work, but also to reduce the time which they were obliged to devote to the intervention.

38Having regard to the nature of the case and to the content of the procedural documents lodged by the applicants following Visa’s intervention, the Court considers that the time spent, that is 392 hours and 30 minutes of work, and the expenses incurred, that is EUR 87574, substantially exceed what can be regarded as necessary for the purpose of the intervention. In these circumstances, the Court considers that the fees of the applicants’ lawyers will be fairly assessed if set at EUR 15000.

39As regards the applicants’ argument to the effect that Visa should be ordered to reimburse the entirety of their expenses, by the application by analogy of Article 87(3) of the Rules of Procedure, it is sufficient to find, without examining whether that provision is applicable by analogy in the present case, that even in the context of applying that provision the obligation to reimburse the costs of the other party cannot include either costs which are unrelated to the action in respect of which the party has been ordered to pay the costs, or costs which were not necessary for that purpose.

40As concerns the request of the applicants that a sum of USD 40804.97 be paid to them in respect of the economic expert’s expenses, corresponding to 89 hours and 25 minutes of work, it must be noted, in the first place, that an economic report is not appended to any of the procedural documents lodged by the applicants in relation to Visa’s intervention. In addition, in their application for taxation of costs, the applicants do not explain in what way such work of an economic expert was necessary in order to respond to the issues raised by Visa’s intervention. Indeed, the applicants limit themselves to referring to their observations on the statement in intervention, in particular to paragraphs 39 to 43 and 65 to 72. However, no reference is made there to an economic report produced specifically because of Visa’s intervention.

41Thus although, in certain circumstances, the appointment of an economic expert may prove to be necessary, in this case, the applicants have not demonstrated any such circumstances. Accordingly, it is appropriate to dismiss entirely the application for reimbursement of the sum of USD 40804.97 by Visa in respect of costs incurred by the applicants in order to obtain the assistance of an economic expert.

42As regards Visa’s application that the applicants be ordered to pay the costs of the proceedings for taxation of costs, it is sufficient to recall that since the Court, when fixing the recoverable costs, has taken into account all the circumstances of the case up to the date of the present order, it is not appropriate to rule separately on the costs incurred for the purpose of the proceedings of taxation of costs (see, to that effect, the order in Artegodan v Commission, paragraph 61).

On those grounds,

THE COURT OF FIRST INSTANCE (Third Chamber)

hereby orders:

The total amount of the costs to be paid by Visa to the applicants is fixed at EUR 15000.

Luxembourg.

* Language of the case: English.