61996B0065

Procedure - Costs - Taxation - Recoverable costs - Matters to be taken into consideration - Intervener

(Rules of Procedure of the Court of First Instance, Art. 91(b))

$$The Community judicature is not empowered to tax the fees payable by the parties to their own lawyers but to determine the part of that remuneration which may be recovered from the party ordered to pay the costs. In that regard, as Community law does not lay down any provisions on scales of costs, the Community judicature must freely assess the circumstances of the case, taking into account the subject-matter and nature of the dispute, its importance in terms of Community law and the difficulties of the case, the extent of the work which the proceedings before the Court could have caused to the agents or advisers acting in the case and the economic interests which the dispute represented for the parties. To this end, it does not have to take account of a national scale of costs fixing lawyers' fees or any agreement concluded in this respect between the party concerned and its agents or advisers.

As regards taxation of the costs of an intervener, account must be taken of the fact that, as a general rule, the procedural task of an intervener is significantly aided by the work of the main party in support of which it has intervened. As an intervention is, by its nature, subordinate to the main action, it cannot therefore present as many difficulties as that action, save in exceptional cases.

Finally, although in principle the remuneration of a single lawyer may be regarded as falling within the concept of expenses necessarily incurred within the meaning of Article 91(b) of the Rules of Procedure of the Court of First Instance, the primary consideration is none the less 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 paras 18-20, 28 )

In Case T-65/96 DEP,

Kish Glass & Co. Ltd, established in Dublin (Ireland), represented by M. Byrne, Solicitor, with an address for service in Luxembourg,

applicant,

v

Commission of the European Communities, represented by R. Lyal, R. Caudwell and B. Doherty, acting as Agents, with an address for service in Luxembourg,

defendant,

supported by

Pilkington United Kingdom Ltd, established in Saint Helens, Merseyside (United Kingdom), represented by J. Kallaugher, Solicitor, A. Weitbrecht, and M. Hansen, lawyers, with an address for service in Luxembourg,

intervener,

APPLICATION for taxation of the costs to be reimbursed by the applicant to the intervener, Pilkington United Kingdom, pursuant to the judgment of the Court of First Instance in Case T-65/96 Kish Glass v Commission [2000] ECR II-1885,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (Fourth Chamber),

composed of: M. Vilaras, President, V. Tiili and P. Mengozzi, Judges,

Registrar: J. Palacio González, Administrator,

makes the following

Order

Facts, procedure and forms of order sought by the parties

1 By application lodged at the Registry of the Court of First Instance on 11 May 1996, Kish Glass & Co. Ltd (hereinafter Kish Glass) brought an action for annulment of the Commission Decision of 21 February 1996 (IV/34.193 - Kish Glass) rejecting the complaint made by the applicant. By order of 30 June 1997, the President of the Third Chamber of the Court of First Instance granted Pilkington United Kingdom Ltd (hereinafter Pilkington) leave to intervene in support of the form of order sought by the Commission.

2 By judgment of 30 March 2000 in Case T-65/96 Kish Glass v Commission [2000] ECR II-1885, the Court of First Instance dismissed the action and ordered Kish Glass to pay the costs. By order of 10 August 2000, the Court of First Instance ordered Kish Glass to pay the costs incurred by Pilkington.

3 On 15 June 2000, Kish Glass brought an appeal against the judgment of the Court of First Instance of 30 March 2000. That appeal is pending before the Court of Justice.

4 Following the order of the Court of First Instance of 10 August 2000, Kish Glass received from Pilkington's lawyer a fee note for BEF 4 946 703.

5 By application lodged at the Registry of the Court of First Instance on 12 February 2001, Kish Glass made a request for taxation of costs pursuant to Article 92(1) of the Rules of Procedure of the Court of First Instance, requesting that the total recoverable costs to be paid to Pilkington be fixed at BEF 400 000.

6 By letter received by the Registry of the Court of First Instance on 7 March 2001, the Commission declined to submit observations.

7 On 7 March 2001, Pilkington lodged its observations in which it asked the Court of First Instance to fix the amount of recoverable costs at BEF 4 946 703.

Law

Arguments of the parties

8 Kish Glass takes the view, first, that the amount requested by Pilkington by way of recoverable costs is excessive given that it was an intervener in the main proceedings.

9 It submits, second, that the costs due by way of lawyer's fees should be limited to those incurred for the purposes of the written and oral procedures before the Court of First Instance and exclude those which bear no relation to the intervention procedure. In that connection, Kish Glass points out that part of the expenses invoiced to Pilkington relate to the revision of a study drawn up by Lexecon. As that study played no role in the proceedings before the Court of First Instance, the related expenses should not be considered to be recoverable costs. Kish Glass argues that the same applies to the fees invoiced for services after the hearing, when no action was required by either the main parties or the intervener for the purposes of the subsequent proceedings before the Court of First Instance.

10 Thirdly, Kish Glass submits that the lawyer's fees charged to Pilkington for the preparation of the application for leave to intervene and the submissions lodged for the written procedure and for attendance at the hearing are excessive and out of proportion to those charged to Kish Glass by its own lawyers.

11 Finally, Kish Glass points out that Pilkington was assisted during the proceedings by four senior partners without any justification being offered. In addition, it notes that each of the invoices sent to Pilkington included an item entitled network services and submits that those figures should not be taken into account as recoverable costs, since they are general expenses which the solicitors' practice normally covers.

12 Pilkington contends that the costs it incurred in connection with the main proceedings are not excessive given the significance of the case for its own interests and the complexity of the issues raised.

13 In particular, Pilkington argues that the preparation of the application for leave to intervene required a detailed analysis of the inquiry conducted by the Commission both from a legal and an economic point of view. Furthermore, the drafting of statements in intervention, the study of the pleadings lodged by the other parties to the dispute and the preparation of oral arguments for the hearing as well as attendance at the hearing itself required a thorough study of the case and the relevant case-law.

14 Moreover, Pilkington points out that, since the dispute in the main proceedings essentially concerned the question of the definition of the relevant market, it found it necessary to retain the services of Lexecon, a firm of economic analysts. In particular, an economist from Lexecon assisted Pilkington's lawyers at the hearing of 28 April 1999.

15 Finally, Pilkington points out that, following the judgment of the Court of First Instance of 30 March 2000, it was obliged to apply to the Court under Article 85 of the Rules of Procedure for a ruling on the costs it incurred as intervener.

Findings of the Court of First Instance

16 Under Article 92(1) of the Rules of Procedure:

If there is a dispute concerning the costs to be recovered, the Court of First Instance hearing the case shall, on application by the party concerned and after hearing the opposite party, make an order, from which no appeal shall lie.

17 Under Article 91(b) of those rules expenses necessarily incurred by the parties for the purposes 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.

18 According to settled case-law, the Community judicature is not empowered to tax the fees payable by the parties to their own lawyers but to determine the part of that remuneration which may be recovered from the party ordered to pay the costs (order of the President of the Third Chamber of the Court of Justice in Case 318/82 Leeuwarder Papierwarenfabriek v Commission [1985] ECR 3727, paragraph 2; orders of the Court of First Instance in Joined Cases T-18/89 and T-24/89 DEP Tagaras v Court of Justice [1992] ECR II-153, paragraph 13, in Case T-78/89 DEP PPG Industries Glass v Commission [1993] ECR II-573, paragraph 36, and in Case T-2/95 DEP Industries des poudres sphériques v Council [2000] ECR 463, paragraph 21).

19 As Community law does not lay down any provisions on scales of costs, the Community judicature must freely assess the circumstances of the case, taking into account the subject-matter and nature of the dispute, its importance in terms of Community law and the difficulties of the case, the extent of the work which the proceedings before the Court could have caused to the agents or advisers acting in the case and the economic interests which the dispute represented for the parties. To this end, it does not have to take account of a national scale of costs fixing lawyers' fees or any agreement concluded in this respect between the party concerned and its agents or advisers (orders in Leeuwarder Papierwarenfabriek v Commission, cited above, paragraph 3, and in Tagaras v Court of Justice, cited above, at paragraph 13; orders of the Court of First Instance in Case T-2/93 DEP Air France v Commission [1995] ECR II-533, paragraph 16, in Case T-175/94 DEP International Procurement Services v Commission [1998] ECR II-601, paragraph 10, and in Industrie des poudres sphériques v Council, cited above, paragraph 22).

20 Finally, account must be taken of the fact that, as a general rule, the procedural task of an intervener is significantly aided by the work of the main party in support of which it has intervened (order of 4 February 1993 in Case C-191/86 DEP TEC v Council, not published in the ECR). As an intervention is, by its nature, subordinate to the main action, it cannot therefore present as many difficulties as that action, save in exceptional cases (order in Case T-97/95 DEP Sinochem v Council [1999] ECR II-743, paragraph 17, Industrie des poudres sphériques v Council, cited above, paragraph 23).

21 In the present case, it must be emphasised, first, that the dispute concerned complex economic and legal issues, which were studied by Pilkington's lawyers.

22 Second, it must be pointed out that Pilkington did not confine itself to reiterating the arguments of the defendant but put forward further arguments. The observations it submitted were relevant and helped to clarify the issues raised by the dispute.

23 Third, as regards the economic interest of the dispute, suffice it to note that the complaint which was the subject of the contested decision concerned serious infringements of Article 82 EC, which were allegedly committed by Pilkington.

24 Accordingly, the nature of the dispute and the financial interests which the parties, and Pilkington in particular, had in the proceedings are such as to justify substantial fees (see Air France v Commission, cited above, paragraph 24).

25 However, the work which the case may have demanded of Pilkington's advisers, including research into and analysis of academic legal writing, the legislation and the case-law, was not of an extent justifying an amount as high as that claimed by way of fees. In addition, Pilkington's advisers were already familiar with the case as they had represented the company during the administrative procedure relating to the case. This not only facilitated their work but also reduced the time which they had to devote to the case (orders in Case T-290/94 DEP Kaysersberg v Commission [1998] ECR II-4105, at paragraph 20, and in Industrie des poudres sphériques v Council, cited above, at paragraph 30).

26 It must be held that the attendance of an economist at the hearing to assist the Pilkington legal team was not necessary. The related expenses and fees do not therefore constitute expenses necessarily incurred within the meaning of Article 91(b) of the Rules of Procedure.

27 As regards the document drawn up by the economic analysts retained by Pilkington, it must be observed, first, that the document was submitted late to the Court of First Instance and was therefore not taken into account by it and, second, that it was drawn up in 1994 in connection with the administrative procedure relating to the case in question. It follows that the expenses and fees due for the revision of that document are not necessary expenses within the meaning of the paragraph of the Rules of Procedure cited above.

28 Finally, it must be borne in mind that, according to settled case-law, although in principle the remuneration of a single lawyer may be regarded as falling within the concept of expenses necessarily incurred within the meaning of Article 91(b) of the Rules of Procedure (order in PPG Industries Glass v Commission, cited above, paragraph 39), the primary consideration is none the less 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 (order in Kaysersberg v Commission, cited above, paragraph 20).

29 Moreover, the extent to which the Community judicature can assess the value of a lawyer's work depends on the degree of detail of the information provided (orders of the Court of First Instance of 12 May 1997 in Case T-561/93 DEP Ladbroke v Commission, not published in the ECR, paragraph 23, and in Joined Cases T-177/94 DEP, T-377/94 DEP and T-99/95 DEP Altmann and Others v Commission ECR-SC I-A-299 and II-883, paragraph 20).

30 Accordingly, in the light of the foregoing considerations, the recoverable costs incurred in this case to date are fairly assessed at a total amount of BEF 1 200 000.

On those grounds,

THE COURT OF FIRST INSTANCE (Fourth Chamber)

hereby orders:

The total amount of costs to be reimbursed by Kish Glass & Co. Ltd to the intervener, Pilkington United Kingdom Ltd is fixed at BEF 1 200 000.