Court of Justice of the European Communities (including Court of First Instance Decisions)

ORDER OF THE GENERAL COURT (First Chamber)

31 January 2020 (*)

(Procedure — Joinder — Taxation of costs)

In Cases T‑914/16 DEP and T‑10/17 DEP,

Proof IT SIA, established in Riga (Latvia), represented by D. Pāvila, lawyer,

applicant,

v

European Institute for Gender Equality (EIGE), represented by V. Ost and M. Vanderstraeten, lawyers,

defendant,

TWO APPLICATIONS for taxation of costs made by the European Institute for Gender Equality (EIGE) following the judgments of 4 October 2018, Proof IT v EIGE (T‑914/16, not published, EU:T:2018:650) and of 16 October 2018, Proof IT v EIGE (T‑10/17, not published, EU:T:2018:682)

THE GENERAL COURT (First Chamber),

composed of H. Kanninen, President, M. Jaeger and N. Półtorak (Rapporteur), Judges,

Registrar: E. Coulon,

makes the following

Order

 Facts, procedure and forms of order sought

1        By application lodged at the Registry of the General Court on 27 December 2016, the applicant, Proof IT SIA, brought an action under Articles 263, 268 and 340 TFEU seeking the annulment of the decision notified to the applicant by letter of 16 October 2016 in the context of the procedure for the award of the ‘framework contract on maintenance and update of EIGE’s gender statistics tools and resources’ EIGE/2016/OPER/01-Lot 1 and EIGE/2016/OPER/01-Lot 2, rejecting the applicant’s tender and awarding the framework contract to a third party.

2        By application lodged at the Court Registry on 9 January 2017, the applicant brought an action under Articles 263, 268 and 340 TFEU seeking, first, annulment of the decision notified to the applicant by letter of 28 October 2016, by which the European Institute for Gender Equality rejected the tender of Proof IT SIA and awarded the contract to the successful tenderer in the procedure for the award of the ‘framework contract for online services’ EIGE/2016/OPER/03 concerning lot 1, and, second, damages together with interest.

3        By judgment of 4 October 2018 (Proof IT v EIGE, T‑914/16, not published, EU:T:2018:650), the General Court dismissed the applicant’s action and ordered it to pay the costs.

4        By judgment of 16 October 2018 (Proof IT v EIGE, T‑10/17, not published, EU:T:2018:682), the Court dismissed the applicant’s action and ordered it to pay the costs.

5        By letter of 30 October 2018, EIGE requested the applicant to pay it the amount of its recoverable costs, which it calculated as EUR 26 439.60 for both cases. On 4 December 2018, a second letter was sent by EIGE, due to the lack of response from Proof IT to the first request.

6        By email of 12 December 2018, the applicant disputed the amount claimed as excessive.

7        By two documents lodged at the Court Registry on 13 June 2019, EIGE made the present applications for taxation of costs pursuant to Article 170(1) of the Rules of Procedure of the General Court. By two documents lodged at the Court Registry on 5 August 2019, Proof IT submitted its observations on the applications for taxation of costs.

8        EIGE claims that the Court should:

–        join the two applications for taxation of costs submitted in Cases T‑914/16 DEP and T‑10/17 DEP;

–        fix the amount of the costs payable to EIGE in respect of the proceedings in the two cases at EUR 26 439.60;

–        set the amount of the costs payable to EIGE in the two proceedings for the taxation of costs at EUR 2 640;

–        order that interest be added to the amount of the costs at a rate equal to that applied by the European Central Bank to its main refinancing operations in force on the first day of the month in which payment is due, increased by three and a half percentage points, from the date of notification of the order of the General Court.

9        The applicant claims that the Court should significantly reduce the amount of recoverable costs.

 Law

10      After hearing the parties, the Court has decided to join the present cases for the purposes of the order, in accordance with Article 68 of the Rules of Procedure.

11      Under Article 170(1) to (3) of the Rules of Procedure, where there is a dispute concerning the costs to be recovered, the Court is, on application by the party concerned, to give its decision by way of an order from which no appeal shall lie, after giving the other party an opportunity to submit its observations.

12      Under Article 140(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 remuneration of agents, advisers or lawyers are to be regarded as recoverable costs. Thus, the recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the Court and, second, to those which were necessary for that purpose (orders of 3 May 2011, Comtec Translations v Commission, T‑239/08 DEP, not published, EU:T:2011:191, paragraph 20, and of 16 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint Undertaking Fusion for Energy, T‑553/13 DEP, not published, EU:T:2018:199, paragraph 16).

13      It is settled case-law that the Court 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 (see orders of 3 May 2011, Comtec Translations v Commission, T‑239/08 DEP, not published, EU:T:2011:191, paragraph 22 and the case-law cited, and of 6 March 2015, Evropaïki Dynamiki v Commission, T‑345/03 DEP, not published, EU:T:2015:168, paragraph 19 and the case-law cited).

14      In the absence, in EU law, of any 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 EU law as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (see orders of 3 May 2011, Comtec Translations v Commission, T‑239/08 DEP, not published, EU:T:2011:191, paragraph 23 and the case-law cited, and of 16 April 2018, European Dynamics Luxembourg and Evropaïki Dynamiki v Joint Undertaking Fusion for Energy, T‑553/13 DEP, not published, EU:T:2018:199, paragraph 19 and the case-law cited).

15      Moreover, it is for the Court to take account primarily of 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 (see orders of 3 May 2011, Comtec Translations v Commission, T‑239/08 DEP, not published, EU:T:2011:191, paragraph 24 and the case-law cited, and of 20 September 2017, Frucona Košice v Commission, T‑11/07 DEP, not published, EU:T:2017:650, paragraph 39 and the case-law cited).

16      Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the signature of the order on taxation of costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (see, to that effect, order of 11 December 2014, Ecoceane v EMSA, T‑518/09 DEP, not published, EU:T:2014:1109, paragraph 9 and the case-law cited). In addition, it must also be recalled that costs incurred in the context of proceedings for taxation of costs are to be settled in the order which terminates those proceedings (see, to that effect, order of 27 April 2016, Marcuccio v Commission, T‑385/13 P-DEP, not published, EU:T:2016:275, paragraph 36).

17      The amount of the recoverable costs must be assessed by having regard to those factors.

18      In the first place, as regards, first of all, the subject matter of the dispute and its nature, it should be noted that the two cases in the main proceedings do not appear to involve any particular difficulty. The applicant sought, in fact, the annulment of two EIGE decisions by which EIGE rejected the applicant’s tenders and awarded a framework contract to another tenderer. In Case T‑914/16, the applicant alleged, inter alia, in that regard, infringement of the principles of equal treatment and transparency, on the grounds that the award criteria were not interpreted consistently by EIGE throughout the procurement procedure, that EIGE acted in an arbitrary manner and that the award criteria were imprecise. The applicant further claimed that there were manifest errors in the assessment of its tender. In Case T‑10/17, the applicant also alleged, in support of its action, infringement of the principles of equal treatment and transparency on the grounds that the contract award criteria were imprecise, that the evaluation procedure was not transparent and that EIGE interpreted the award criteria in such a way that another party to the procedure benefited from knowledge acquired in performing a similar contract previously entered into with EIGE. The applicant further claimed that there were manifest errors in the assessment of its tender. It must be stated that, in the two main cases, the principal issue for the parties was the interpretation of the award criteria in order to discuss their compliance with those criteria during the procedures for the award of the framework contract. In both cases, all the pleas in law were held to be unfounded and were rejected.

19      Next, as regards the significance of the cases in terms of EU law, it must be observed that the legal issues raised were not highly complex, since they are the subject of a large body of case-law. The significance of the dispute in that regard was therefore limited.

20      In the second place, it must be stated that the applicant’s financial interest in the dispute was not negligible. Indeed, the applicant was seeking to obtain, in Case T‑914/16, the public contract with the reference EIGE/2016/OPER/01 for the award to a single operator of a four-year framework contract entitled ‘framework contract on maintenance and update of EIGE’s statistics tools and resources’. The contract was for a maximum amount of EUR 1 600 000. In Case T‑10/17, the public contract with reference EIGE/2016/OPER/03, for the award to a single operator of a four-year framework contract, divided into two lots and entitled ‘framework contract for online services’, was for a maximum amount of EUR 900 000 for lot 1 and EUR 400 000 for lot 2.

21      In the third place, as regards the extent of the work required by the proceedings before the Court, it is for the judge to take into account the total number of working hours which may appear to be objectively necessary for the purpose of those proceedings (order of 23 March 2012, Kerstens v Commission, T‑498/09 P-DEP, not published, EU:T:2012:147, paragraph 19). In the present case, it should be pointed out that, as the parties agree, although the two main disputes are not identical, they are nevertheless similar, which had the effect of reducing the parties’ lawyers’ overall workload. Indeed, the factual framework of each case, the parties’ arguments and, therefore, the legal issues raised are largely similar.

22      EIGE provided a statement of costs in support of its application for taxation of costs. First, EIGE specifies the number of hours of work invoiced and the hourly rates of the two lawyers who acted in the cases which gave rise to the judgments of 4 October (in Case T‑914/16) and 16 October 2018 (in Case T‑10/17). Those hours amount to 8 hours and 45 minutes of work at an hourly rate of EUR 425 and 96 hours and 20 minutes at an hourly rate of EUR 220, that is to say a total of 105 hours and 5 minutes of work at an average rate of EUR 237.08 per hour. Second, the tasks performed by the lawyers, in particular those relating to the preparation of procedural documents, are set out. The total amount of hours invoiced therefore includes lawyers’ fees of EUR 24 912 plus the costs of a conference call and translation costs of EUR 1 527.60. The total costs claimed therefore amount to EUR 26 439.60.

23      In the present case, however, it must be observed that the statement of costs submitted by EIGE is common to both cases, without any details being given of the hours spent by its lawyers on each of those cases.

24      As regards the costs of translating the defence pleadings from English into French, namely the sum of EUR 1 517.14 invoiced in respect of the translation of the defence in Case T‑10/17, and the 11 hours and 40 minutes of work claimed in respect of the translation of the defence in Case T‑914/16 and at the hourly rate of EUR 220, it must be borne in mind that, according to case-law applicable by analogy to EU executive bodies or agencies, the obligation imposed on EU institutions by Article 72(5) of the Rules of Procedure derives from the fact that those institutions operate in a multilingual environment and have at their disposal the necessary human resources to produce translations of procedural documents in all the languages referred to in Article 1 of Regulation No 1. If that were not the case, it would be for the Court of Justice’s translation services to translate the procedural documents submitted by EU institutions. It is therefore not consistent with Article 72(5) of the Rules of Procedure for external translators’ costs of translating procedural documents lodged at the General Court by EU institutions to be regarded as expenses necessarily incurred for the purpose of the proceedings and therefore as recoverable costs within the meaning of Article 140(b) of those rules (orders of 26 November 2004, EIB v De Nicola, C‑198/02 P(R)-DEP, not published, EU:C:2004:754, paragraphs 21 and 22, and of 11 December 2014, Longinidis v Cedefop, T‑283/08 P-DEP, EU:T:2014:1083, paragraph 64). It follows that the defendant cannot reasonably claim that the costs relating to the translation of the defence pleadings into French, which was requested of it by the General Court, constitute recoverable costs.

25      In the light of the foregoing considerations, the 11 hours and 40 minutes worked in respect of the translation of the defence pleading in Case T‑914/16 must be deducted from the total number of hours worked at the rate of EUR 220 per hour. It must therefore be held that only 84 hours and 40 minutes of work at an hourly rate of EUR 220 and 8 hours and 45 minutes at an hourly rate of EUR 425 can be claimed as recoverable costs. In the present case, however, such a number of working hours was not objectively justified for the following reasons.

26      First of all, it must be pointed out that, having regard to the subject matter and nature of the disputes in the main proceedings and the applicant’s financial interest in them, as is apparent from paragraphs 18 to 20 above, the two main cases were not complex, since the main issue was that quite commonly encountered in litigation of a possible infringement of the principles of equal treatment and transparency. Admittedly, those disputes required an in-depth analysis and involved certain technical factors, particularly of a factual nature. However, they were not cases which, in the light of the applicant’s pleas in law to which EIGE was obliged to respond, should be regarded as atypical or particularly complex. Further, the workload appears to be limited in view of the fact that the length of the defence pleadings is not excessive (39 and 29 pages respectively), that each of the two cases was the subject of a single round of pleadings and that the Court decided to give judgment without opening the oral phase of the proceedings.

27      Next, the similarities between the two cases justify a reduction in the number of working hours regarded as necessary for the purpose of the judicial proceedings before the Court.

28      Finally, it must also be held that the working hours claimed in respect of coordination between EIGE’s two lawyers do not, in the present case, constitute recoverable costs in view of the reduced complexity of the two cases.

29      Therefore, a reduction of the number of hours of work constituting recoverable costs to 70 hours in total is justified.

30      Moreover, the average hourly rate claimed of EUR 237.08 must be regarded as reasonable for remunerating the services of a particularly experienced professional, capable of working efficiently and rapidly in a case of the kind at issue in the present case (see, to that effect, order of 26 October 2017, Haw Par v EUIPO, T‑25/16 DEP, not published, EU:T:2017:774, paragraph 21).

31      Therefore, in the light of all the foregoing considerations, a fair assessment will be made of the costs recoverable by EIGE as lawyers’ fees by fixing their amount at EUR 16 595.60, corresponding to 70 hours of work paid at an hourly rate of EUR 237.08.

32      Furthermore, the costs amounting to EUR 9.66 for communications (conference call) do not appear excessive and must therefore be considered to be recoverable.

33      In addition, EIGE is claiming lawyers’ fees in the amount of EUR 2 640 (that is to say, 12 hours at an hourly rate of EUR 220) in respect of the two costs proceedings. However, it did not submit any invoices from its lawyers in relation to those fees.

34      In that regard, it must be borne in mind that an application for taxation of costs is reasonably standardised in nature and is distinguished, in principle, by the absence of any difficulty for the lawyer who has already dealt with the substance of the case (see, to that effect, orders of 10 October 2013, CPVO v Schräder, C‑38/09 P-DEP, not published, EU:C:2013:679, paragraph 42, and of 29 November 2016, Brune v Commission, T‑513/16 DEP, not published, EU:T:2016:709, paragraph 40), notably when that case does not involve any particular difficulty, as was the case in the two cases in the main proceedings.

35      Moreover, in accordance with the case-law, the failure to produce invoices or other documents proving actual payment of the legal fees and expenses incurred does not preclude the Court from fixing, on the basis of a fair assessment, the amount of recoverable costs (orders of 17 February 2004, DAI v ARAP and Others, C‑321/99 P-DEP, not published, EU:C:2004:103, paragraphs 9 to 13, and of 2 May 2005, ARAP and Others v Commission, T‑82/96 DEP, not published, EU:T:2005:150, paragraphs 17, 19 and 20).

36      In those circumstances, in the present case, a fair assessment will be made of the recoverable costs in respect of lawyers’ fees relating to the present proceedings for the taxation of costs by fixing them at EUR 440. The latter represents two hours’ work at an hourly rate of EUR 220, it being understood that that hourly rate is the rate applicable for one of its two lawyers and that it does not appear to be manifestly excessive in the circumstances of the case.

37      In the light of all the foregoing considerations, a fair assessment will be made of the recoverable costs in the present case by fixing their amount at EUR 17 045.26, corresponding to EUR 16 605.26 in respect of the costs of the two main cases and EUR 440 in respect of the costs incurred by EIGE in the two present proceedings. That amount takes account of all the circumstances of the case up to the date of the present order.

38      Finally, EIGE’s claim for default interest must be upheld for the period from the date of service of the present order for taxation of costs to the date of actual recovery of those costs. As regards the applicable rate of interest, that must be calculated on the basis of the rate applied by the European Central Bank to its main refinancing operations in force on the first day of the month in which payment is due, which is the date of service of the present order, increased by three and a half percentage points (see, to that effect, order of 10 April 2019, Giant (China) v EBMA, C‑61/16 P-DEP, not published, EU:C:2019:298, paragraph 39).

On those grounds,

THE GENERAL COURT (First Chamber)

hereby orders:

1.      Cases T‑914/16 DEP and T‑10/17 DEP are joined for the purposes of the present order.

2.      The total amount of the costs to be reimbursed by Proof IT SIA to the European Institute for Gender Equality (EIGE) is fixed at EUR 17 045.26.

3.      That amount shall bear interest at a rate equal to that applied by the European Central Bank (ECB) to its main refinancing operations in force on the first day of the month in which payment is due, which is the date of service of the present order, increased by three and a half percentage points, to run from that date until payment in full of the costs.

Luxembourg, 31 January 2020.

E.Coulon      H. Kanninen

*      Language of the case: English.

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