Corte di giustizia UE/2012

[OSCURATO:PERSONA] ([OSCURATO:PERSONA]) 13 December 2012 ( * ) (Taxation of costs) [OSCURATO:PERSONA]252/10 P-DEP, APPLICATION for taxation of recoverable costs on the basis of [OSCURATO:PERSONA] 145 of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, brought on 30 May 2012, [OSCURATO:PERSONA] (EMSA), established in Lisbon (Portugal), represented by A.-M. Vandromme, advocaat, applicant v [OSCURATO:PERSONA] – [OSCURATO:PERSONA] kai Tilematikis AE, established in Athens (Greece), represented by K. Koutra, dikigoros, defendant [OSCURATO:PERSONA] ([OSCURATO:PERSONA]), composed of A. Rosas, President of the [OSCURATO:PERSONA], E. Juhász (Rapporteur) and D. Šváby, [OSCURATO:PERSONA], [OSCURATO:PERSONA]: P. Mengozzi, Registrar: A. [OSCURATO:PERSONA], after hearing the [OSCURATO:PERSONA], makes the following [OSCURATO:PERSONA] 1 The subject-matter of this action is the taxation of the costs incurred by the [OSCURATO:PERSONA] (EMSA) in [OSCURATO:PERSONA] C‑252/10 P. 2 By its appeal lodged on 12 May 2010, [OSCURATO:PERSONA] – [OSCURATO:PERSONA] kai Tilematikis AE (‘[OSCURATO:PERSONA]’) sought, pursuant to [OSCURATO:PERSONA] 56 of the Statute of the [OSCURATO:PERSONA] of Justice of the [OSCURATO:PERSONA], to have set aside in part the judgment of the [OSCURATO:PERSONA] of the [OSCURATO:PERSONA] of 2 March 2010 in [OSCURATO:PERSONA]70/05 [OSCURATO:PERSONA] v EMSA [2010] [OSCURATO:PERSONA]-313, by which the [OSCURATO:PERSONA] dismissed its application for annulment of EMSA’s decision not to accept the tender submitted by the appellant in tendering procedure EMSA C-1/01/04-2004 relating to the contract entitled ‘SafeSeaNet Validation and further development’ and to award that contract to the successful tenderer. 3 By its judgment of 21 July 2011 in [OSCURATO:PERSONA] C‑252/10 P [OSCURATO:PERSONA] v EMSA [2011] ECR I-0000, the [OSCURATO:PERSONA] of Justice dismissed [OSCURATO:PERSONA] appeal and ordered it to pay the costs. 4 As EMSA and [OSCURATO:PERSONA] did not reach an agreement on the amount of recoverable costs, EMSA requests the [OSCURATO:PERSONA] to fix those costs in the amount of EUR 15 254.67. 5 [OSCURATO:PERSONA] contends that EMSA’s application to have the costs fixed should be dismissed and, by way of principal claim, requests the [OSCURATO:PERSONA] to fix the total amount of recoverable costs at EUR 4 000, including all related costs or, in the alternative, to determine which costs it deems reasonable for the case in question. Arguments of the parties 6 EMSA requests the [OSCURATO:PERSONA] to fix the amount of recoverable costs at EUR 15 254.67, broken down as follows: –        EUR 4 170.44 in lawyer’s fees for the oral procedure (preparation for the hearing, presence at the hearing and travel expenses); –        EUR 10 000 in lawyer’s fees for the written procedure; and –        EUR 1 084.23 in travel expenses incurred by EMSA’s representative to attend the hearing. 7 EMSA states that the amounts claimed relate only to what was indispensable and necessary and that [OSCURATO:PERSONA] must bear full liability for those expenses. In the applicant’s submission, [OSCURATO:PERSONA], in deciding to bring an action in which it had little chance of being successful, must assume liability for the expenses incurred. EMSA adds that [OSCURATO:PERSONA] requested an oral hearing, although EMSA did not believe it was necessary. 8 EMSA points out that it was represented at the hearing by a single lawyer specialised in [OSCURATO:PERSONA] law and a single representative acting as agent; this was the minimum and modest ‘indispensable’ representation necessary for the hearing. 9 EMSA observes that the lawyer’s fees indicated in the invoices submitted reflect the usual level of fees for lawyers specialised in this field and that the lawyer’s work in the present appeal is distinct from the case at first instance or any other proceedings. 10 [OSCURATO:PERSONA] contends that the amount of legal fees claimed is exorbitant and contrary to [OSCURATO:PERSONA] 73(b) of the Rules of Procedure of the [OSCURATO:PERSONA] of Justice, now [OSCURATO:PERSONA] 144(b) of those Rules of Procedure. 11 [OSCURATO:PERSONA] submits that the fact that it brought an action should not affect the determination of the amount of costs, since its chances of being successful were reasonable and the [OSCURATO:PERSONA] upheld its action in part; its appeal concerned principally issues that were not examined at first instance. The applicant’s arguments are therefore self-contradictory because it states, on the one hand, that the appeal was destined to fail because it was based on unfounded grounds whilst claiming, on the other hand, that it had to incur substantial lawyer’s fess due to the complexity of the proceedings. 12 Nor can [OSCURATO:PERSONA] request for a hearing justify excessive fees. The applicant argues that EMSA referred to provisions corresponding to the current [OSCURATO:PERSONA] 144(b) of the Rules of Procedure, without specifying how the requirements therein are satisfied in the present case. Moreover, in comparing proceedings before the [OSCURATO:PERSONA] of Justice and the [OSCURATO:PERSONA], [OSCURATO:PERSONA] infers that the services provided by a specialised lawyer do not justify the amounts claimed in the present proceedings because they are not at the level of usual lawyer’s fees. 13 According to [OSCURATO:PERSONA], the legal fees claimed by EMSA do not satisfy the requirements as developed in the case-law, including the order in [OSCURATO:PERSONA] C‑104/89 DEP Mulder and Others v Council and Commission [2004] ECR I‑1 and the order of 20 May 2010 in [OSCURATO:PERSONA] C‑12/03 P‑DEP and C‑13/03 P‑DEP [OSCURATO:PERSONA] v Commission . The subject-matter and nature of the dispute, an appeal in the present case, requires only a review of the aforementioned judgment of the [OSCURATO:PERSONA] in [OSCURATO:PERSONA]70/05 [OSCURATO:PERSONA] v EMSA , the importance from the point of view of EU law and complexity of which do not generate extensive work for an external lawyer acting for EMSA. The lawyer’s experience and knowledge of similar cases, as well as previous invoices, weigh in favour of the costs billed being objectively disproportionate, unreasonable and unnecessary. 14 [OSCURATO:PERSONA] accordingly submits that the costs claimed are not recoverable because they are not clearly justified, nor proven by specific invoices. Findings of the [OSCURATO:PERSONA] 15 [OSCURATO:PERSONA] 144(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 recoverable costs. 16 It follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the [OSCURATO:PERSONA] of Justice and, second, to those which are necessary for that purpose. In that regard, the [OSCURATO:PERSONA] must freely assess the details of the case, taking account of the subject-matter and the nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved and the economic interests which the dispute presented for the parties (see, to that effect, order of 7 June 2012 in [OSCURATO:PERSONA] C‑451/10 P-DEP [OSCURATO:PERSONA] v TF1 , paragraphs 17 to 20). 17 The amount of the recoverable costs must be assessed in the light of those criteria. 18 As regards, firstly, the subject-matter and the nature of the dispute, its importance from the point of view of EU law and the difficulties presented by the case, it must be observed that it was an appeal involving, inter alia, a question of law in public procurement, namely the specification of criteria previously brought to the knowledge of tenderers and their weighting by a contracting authority. 19 The answer to that question did not involve merely an application of EU law as interpreted in the [OSCURATO:PERSONA] of Justice’s case-law (see, inter alia, [OSCURATO:PERSONA] C‑331/04 [OSCURATO:PERSONA] e Viaggi di Maio and Others [2005] ECR I‑10109, and [OSCURATO:PERSONA] C‑532/06 Lianakis and Others [2008] ECR I‑251). That question therefore called for in-depth analysis. 20 Furthermore, EMSA does not have specialised, organised staff to take care of legal proceedings involving public procurement matters. It was therefore justified in turning to external legal counsel with specialised knowledge and suitable experience. 21 Regarding the amount of work, it seems that EMSA’s counsel provided a detailed invoice setting out the work done and number of hours spent on each procedural step; the level of fee charged reflects normal fees for such work. 22 It is for the unsuccessful party to pay the additional costs relating to the oral procedure, those being in this case the travel expenses of EMSA’s agent and lawyer. 23 Regarding the economic interests at issue, it should be noted that the public contract at issue was part of a [OSCURATO:PERSONA] programme for the exchange of information on ship and cargo movement, with a view to ensuring safety and efficiency of maritime traffic. In that context, the dispute was definitely important for EMSA in administrative and economic terms, as the setting-side of the judgment in [OSCURATO:PERSONA]70/05 [OSCURATO:PERSONA] v EMSA was liable to have a significant adverse effect on the implementation of that [OSCURATO:PERSONA] programme. 24 It follows that the amount of EUR 15 254.67, claimed by EMSA in the present proceedings for lawyer’s fees for the written and oral proceedings and also travel expenses for an agent of EMSA, must be considered reasonable and objectively indispensable for ensuring the defence of EMSA’s interests in the appeal. 25 The costs for the present taxation proceedings are fixed at EUR 800. 26 In light of all the foregoing considerations, the recoverable costs, including the costs relating to the present taxation proceedings, can be assessed at EUR 16 054.67. On those grounds, the [OSCURATO:PERSONA] ([OSCURATO:PERSONA]) hereby orders: The total amount of the costs to be reimbursed by [OSCURATO:PERSONA] – [OSCURATO:PERSONA] kai Tilematikis AE to the [OSCURATO:PERSONA] (EMSA) is fixed at EUR 16 054.67. [Signatures] * Language of the case: English.