In Case T-64/99 DEP,
UK Coal plc, formerly RJB Mining plc, established in Harworth (United Kingdom), represented by J. Lawrence, Solicitor, with an address for service in Luxembourg,
applicant,
v
Commission of the European Communities, represented by K.-D. Borchardt, acting as Agent, assisted by N. Khan, Barrister, with an address for service in Luxembourg,
defendant,
APPLICATION for taxation of the costs to be paid by the defendant to the applicant pursuant to the order of the Court of First Instance of 25 July 2000 in Case T-64/99 RJB Mining v Commission (not published in the ECR),
THE COURT OF FIRST INSTANCE
OF THE EUROPEAN COMMUNITIES (Second Chamber, Extended Composition),
composed of: A.W.H. Meij, President, K. Lenaerts, A. Potocki, M. Jaeger and J. Pirrung, Judges,
Registrar: H. Jung,
makes the following
Order
Facts and procedure
1 By decision of 29 July 1998 made pursuant to Article 66 of the ECSC Treaty, the Commission authorised the merger of Saarbergwerke AG, a German public-sector company, Preussag Anthrazit GmbH and RAG Aktiengesellschaft (RAG), the latter company having acquired the share capital of the other companies. According to the applicant, the merger involved a number of elements of State aid.
2 On 29 September 1998, the applicant brought proceedings contesting the decision authorising that merger, in which it criticised, inter alia, the Commission's failure to assess the lawfulness of the State aid inherent in the merger. Those proceedings were registered in the Court of First Instance under case number T-156/98. By judgment of 31 January 2001 in Case T-156/98 RJB Mining v Commission [2001] ECR II-337, the Court of First Instance annulled the contested decision of authorisation.
3 In addition, on 18 January and 3 March 1999 respectively, the applicant brought actions seeking annulment of the Commission's decision of 2 December 1998 authorising the aid granted by Germany to the coal industry in 1998 and of the Commission's decision of 22 December 1998 authorising similar aid in 1999. In support of those applications, the applicant claimed, inter alia, that those decisions contained no reference whatsoever to the abovementioned merger, or to the State aid issues relating to it. Those actions were registered in the Court under case numbers T-12/99 and T-63/99. By judgment of 12 July 2001 in Joined Cases T-12/99 and T-63/99 UK Coal v Commission [2001] ECR II-0000, the Court of First Instance dismissed them as unfounded.
4 By application lodged on 3 March 1999 in the present case, the applicant claimed, pursuant to Article 35 of the ECSC Treaty, that the Court should, first, annul a number of implicit decisions by which the Commission had refused to examine whether the State aid paid by Germany in connection with the abovementioned merger was compatible with Article 4(c)of the ECSC Treaty and Commission Decision No 3632/93/ECSC of 28 December 1993 establishing Community rules for State aid to the coal industry (OJ 1993 L 329, p. 12)and, second, order the Commission to pay the costs.
5 By a pleading lodged on 31 May 1999, the Commission raised an objection of inadmissibility. It submitted that the application in Case T-64/99 was inadmissible, first, on the ground of lis pendens in relation to Cases T-156/98 and T-12/99 and, second, on the ground that it constituted an abuse of process, in that the applicant had no legal interest in bringing the proceedings. The applicant replied to the objection by a pleading lodged on 2 July 1999.
6 By pleadings lodged on the same day, the applicant requested the Court, first, to enter judgment by default and, second, to give priority to the present proceedings.
7 By order of 12 November 1999, the Court joined the objection of inadmissibility to the substance of the case, dismissed the application for judgment by default, held that the application for priority to be given to the proceedings would be considered at a later stage and reserved the costs.
8 By a pleading lodged on 25 August 1999, RAG sought leave to intervene in support of the form of order sought by the Commission. By a pleading lodged on 16 September 1999, the applicant opposed that application. By order of 10 January 2000, the Court granted RAG leave to intervene, and the costs were reserved.
9 By order of the same day, after the principal parties had been heard, the Federal Republic of Germany was also granted leave to intervene in support of the form of order sought by the Commission.
10 Further to the Commission's initiating, in the course of the proceedings, a formal procedure to obtain from the German Government information about possible State aid associated with the abovementioned merger of undertakings, the applicant stated that the action in Case T-64/99 had become devoid of purpose.
11 Consequently, the Court of First Instance (Second Chamber, Extended Composition)held, by order of 25 July 2000 in Case T-64/99 RJB Mining v Commission (not published in the ECR), that there was no need to proceed to judgment either on the originating application or on the application for priority to be given to the proceedings. The Commission was ordered to bear its own costs and to pay one half of the costs incurred by the applicant, excluding the costs incurred as a result of RAG's being granted leave to intervene and of the applicant's applications for judgment by default and for priority to be given to the proceedings.
12 By letter of 8 November 2000, the applicant submitted to the Commission a breakdown of its costs, which shows that they amount to 60 961.50 pounds sterling (GBP)in total, and claimed payment of half of that sum, namely GBP 30 480.75. On 4 December 2000, the Commission rejected that claim and made a counter-offer to pay GBP 10 900. On 23 January 2001, taking account of a number of objections raised by the Commission, the applicant submitted a revised claim in the amount of GBP 21 774.80. By letter of 14 March 2001, the Commission rejected that claim and raised its counter-offer to GBP 13 000.
13 Accordingly, by application lodged at the Court Registry on 6 June 2001, the applicant applied for taxation of costs.
14 By a pleading lodged at the Court Registry on 11 June 2001, the Commission submitted its observations on that application.
Forms of order sought by the parties
15 The applicant claims that the Court should:
- award it costs in the amount of GBP 21 774.80;
- provide it with an authenticated copy of its order;
- order the Commission to pay the costs relating to the present taxation proceedings.
16 The Commission contends that the Court should, in essence, fix the amount of the costs recoverable, including the costs resulting from the present proceedings, at a reasonable sum which, in total, does not exceed GBP 13 000.
Arguments of the parties
17 By reference to its pre-litigation correspondence with the Commission (see paragraph 12 above), the applicant claims that, as is clear from its breakdown of costs of 8 November 2000, the sum claimed is based on 210.7 hours of work at an average hourly rate of GBP 174.89, a rate which is well below that of GBP 220 which, in its letter of 4 December 2000, the Commission itself regarded as justified in this case. According to the applicant, the Commission's counter-offer, based on 55 hours of work for the preparation of the entire case, is clearly inadequate.
18 As regards the time spent in preparing the case, the applicant submits that the application was of a complex and difficult nature, which required considerable preparation and research, since actions for failure to act are rare in the context of the ECSC. Furthermore, a large part of the Commission's defence turned on questions of admissibility, which required the applicant to devise novel and substantive arguments. In addition, the case required the applicant to submit full and lengthy pleadings before the Commission finally decided to take action.
19 The applicant adds that the amount of non-notified aid in this case was 1 billion German marks (DEM), which is a considerable sum. Moreover, the case was significant from the point of view of Community law and for the coal sector as a whole.
20 The applicant concludes that the costs claimed, which are indeed well below its true expenditure in this case, are reasonable.
21 The Commission replies that it is unnecessary to consider the calculation of the hourly rate further, since it is sufficient to note that, however it is assessed, it is at the top end of hourly rates claimed in proceedings before the Court. Consequently, a high degree of expertise on the part of the applicant's advisers must be assumed, which implies that little time was needed for research.
22 As regards the number of hours spent on the case, the Commission points out that its counter-offer is based on 55 hours spent by the applicant's solicitors, plus a further period of time, which is unspecified but costed at GBP 6 700, for work by the applicant's barrister, plus GBP 2 000 for attendance by the solicitors on the barrister. If the hourly rate of GBP 220 were applied, this would imply that the Commission had allowed 30 hours' work for the applicant's barrister and a further nine hours for the solicitors' attendance on the barrister, that is a total of 94 hours of lawyers' time.
23 In so far as the applicant invokes the complexity of its application for failure to act, the Commission states that the applicant's task in preparing the application was simplified by the fact that the substance of the present case was directed at an issue already raised in Cases T-156/98 and T-12/99 which were then pending (see paragraphs 2 and 3 above). Furthermore, the substantive arguments put forward in this case occupy only the last few pages of the application and comprise a repackaging of matters already submitted to the Court in Cases T-156/98, T-12/99 and T-63/99, mentioned above.
24 Finally, pursuant to the Court's judgment in Case T-156/98 (see paragraph 2 above), the applicant has submitted to the Commission a claim for the payment of costs of GBP 127 698 and stated that the case was complex and time-consuming to prepare. The applicant cannot seek substantial costs in respect of the preparation of argument on similar issues in two different cases, since this is liable to lead to double recovery.
Findings of the Court
25 Under Article 91(b)of the Rules of Procedure of the Court of First Instance, 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 First Instance and, second, to those which are necessary for that purpose (order of 15 July 1998 in Case T-115/94 (92)Opel Austria v Council [1998] ECR II-2739, paragraph 26).
26 It is settled case-law that 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 scales of lawyers' fees or any agreement in that regard between the party concerned and his agents or advisers (order in Opel Austria v Council, cited above, paragraph 27).
27 It is also settled case-law that, in the absence of Community provisions laying down fee scales, the Court must make an 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 case for the agents or advisers involved and the financial interest which the parties had in the proceedings (orders of 26 November 1985 in Case 318/82 Leeuwarder Papierwarenfabriek v Commission [1985] ECR 3727, paragraphs 2 and 3; of 9 June 1993 in Case T-78/89 DEP PPG Industries Glass v Commission [1993] ECR II-573, paragraph 36; and of 8 March 1995 in Case T-2/93 (92)Air France v Commission [1995] ECR II-533, paragraph 16).
28 It is on the basis of those criteria that the amount of the recoverable expenses in this case must be assessed.
29 In this respect it should be noted that, as regards the expenses incurred by the applicant for the purpose of the proceedings in Case T-64/99, the costs of which half are declared to be theoretically recoverable relate, in essence, only to the preparation and drafting of the application and of the observations on the objection of inadmissibility and on the Federal Republic of Germany's application for leave to intervene.
30 As regards the difficulties presented by the case and its significance from the point of view of Community law, it must be stated that, as the Commission has rightly pointed out, the substantive questions raised by the present application for failure to act were, to a large extent, the subject-matter of other cases in which the applicant had brought proceedings before the Court at an earlier date (Cases T-156/98 and T-12/99)or on the same day (Case T-63/99). Consequently, the applicant's advisers already had some knowledge of the substance of the present case, which made their research, analysis and drafting easier and significantly reduced the extent of the work which they objectively needed to carry out in that regard. The only questions of law which could be characterised as novel and complex related to the admissibility of the application under Article 35 of the ECSC Treaty, which was challenged by the Commission on various fronts.
31 As to the financial interest which the parties had in the present proceedings, it follows from the foregoing that its significance is reduced in so far as the alleged non-notified State aid was also the subject-matter of Cases T-156/98, T-12/99 and T-63/99, so that the interest asserted in this case was broadly taken into account by those cases.
32 In the light of the foregoing considerations and the circumstances of the case, it is equitable for the amount of the fees and expenses recoverable by the applicant to be fixed at GBP 13 000.
33 Since the Court, when determining the recoverable costs, has taken account of all the circumstances of the case until the time of such determination, it is not necessary to give a separate decision on the costs incurred by the parties in connection with these proceedings for the taxation of the costs (order of 5 July 1993 in Case T-84/91 DEP Meskens v Parliament [1993] ECR II-757, paragraph 16).
On those grounds,
THE COURT OF FIRST INSTANCE (Second Chamber, Extended Composition)
hereby orders:
The amount of costs recoverable by the applicant in Case T-64/99 shall be GBP 13 000.
