ORDER OF THE COURT (Eighth Chamber)
21 February 2022 (*)
(Taxation of costs)
In Case C‑558/17 P-DEP,
APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court of Justice, brought on 8 July 2021,
OZ, residing in Luxembourg (Luxembourg), represented by B. Maréchal, avocat,
European Investment Bank (EIB), represented by G. Faedo and M. Loizou, acting as Agents,
THE COURT (Eighth Chamber),
composed of N. Jääskinen, President of the Chamber, M. Safjan (Rapporteur) and N. Piçarra, Judges,
Advocate General: J. Kokott,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Advocate General,
makes the following
1 The present case concerns the taxation of the costs incurred by OZ in Cases C‑558/17 P and T‑607/16.
2 By an appeal brought on 14 September 2017, OZ sought, in accordance with Article 56 of the Statute of the Court of Justice of the European Union, to have set aside the judgment of the General Court of the European Union of 13 July 2017, OZ v EIB (T‑607/16, not published, EU:T:2017:495), by which the General Court dismissed her action seeking, first, annulment of the report of the Investigation Panel of the European Investment Bank (EIB) of 14 September 2015 and the decision of the President of the EIB of 16 October 2015 not to take action on her complaint alleging sexual harassment (‘the decision at issue’) and, second, compensation for the damage which she claims to have suffered as a result of that report and that decision.
3 By its judgment of 4 April 2019, OZ v EIB (C‑558/17 P, EU:C:2019:289), the Court (i) set aside the judgment of 13 July 2017, OZ v EIB (T‑607/16, not published, EU:T:2017:495), in so far as that judgment rejected, first, the claim for compensation set out by OZ in her application based on the liability of the EIB for alleged unlawful acts committed during the investigation procedure, including the failure to respect the appellant’s right to a fair hearing, and, second, the claim for annulment set out in the application; (ii) dismissed the appeal as to the remainder; (iii) annulled the decision at issue; (iv) dismissed the action as to the remainder; and (v) ordered the EIB to bear its own costs and pay those incurred by OZ relating to the proceedings at first instance and the appeal proceedings.
4 Since no agreement was reached between OZ and the EIB on the amount of recoverable costs, OZ brought the present application under Article 145 of the Rules of Procedure of the Court of Justice.
Forms of order sought
5 OZ requests that the Court fix the amount of recoverable costs to be paid by the EIB in respect of the costs which she incurred in Cases C‑558/17 P and T‑607/16.
6 The EIB contends, principally, that that request should be rejected as inadmissible and, in the alternative, that the recoverable costs should be fixed at an amount not exceeding EUR 13 226.46, and that OZ should be ordered to pay the costs relating to the present taxation of costs proceedings.
Arguments of the parties
7 In support of her application, OZ refers to all the services provided by her lawyer and his colleagues since the initiation of the conciliation procedure within the EIB. This gave rise to fees in the amount of EUR 60 000, including value added tax (VAT).
8 The EIB disputes both the need to bring this application and the amount of the costs claimed by OZ, and further requests that the latter be ordered to repay to it the fees that it has incurred in the present proceedings.
9 As regards the need to bring the present application for taxation of costs, the EIB claims that, in the present case, there is in fact no dispute on its part, and that OZ prematurely decided to make that application rather than pursue discussions with the EIB regarding the amount of reasonably recoverable costs.
10 In the latter connection, the EIB disputes the recoverability of the fees relating to the services provided to OZ by her lawyer prior to lodging her application at first instance, whether the number of hours invoiced by the latter were necessary, and the appropriateness of the hourly rate of EUR 300 for the services provided in person by that lawyer.
11 The EIB therefore argues that the reasonably recoverable costs should be fixed, in Case T‑607/16, at EUR 6 826.56, which is equivalent to 32 hours’ work at an average hourly rate of EUR 213.33 and, in Case C‑558/17 P, at EUR 6 399.90, which is equivalent to 30 hours’ work at the same average hourly rate.
12 In so far as concerns its application seeking reimbursement of the fees that it has incurred in respect of the present proceedings, the EIB claims that those fees amount to EUR 3 000 corresponding to a flat fee invoiced by a lawyer whom the EIB had to instruct because OZ’s application for taxation of costs fails to distinguish between those costs which were necessary and those which were not, thus resulting in additional work for both the EIB and the Court.
Findings of the Court
13 Under Article 145(1) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Court of Justice is, on application by the party concerned and after hearing the opposite party and the Advocate General, to make an order.
14 In order for there to be a dispute within the meaning of that provision, it is sufficient that the parties be unable to reach an agreement on the amount of the costs to be recovered, without it being necessary that the party who has been requested to reimburse the costs advanced by the successful party provide an explicit, comprehensive refusal.
15 In the present case, it is apparent from the information before the Court that OZ, who takes the view that she incurred lawyers’ fees in the amount of EUR 60 000, inclusive of VAT, in Cases T‑607/16 and C‑558/17 P, proposed to the EIB that an amicable settlement be reached in the amount of EUR 55 000, as recoverable costs incurred in those cases.
16 It is also apparent from that information that OZ and the EIB were unable to reach such a settlement.
17 In those circumstances, OZ’s application for taxation of costs is admissible.
18 Under Article 144(b) of the Rules of Procedure, which is applicable to appeal proceedings by virtue of Article 184(1) of those rules, ‘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.
19 It is clear from the wording of Article 144(b) that the remuneration of a lawyer is one of the ‘expenses necessarily incurred’ within the meaning of that provision, and that recoverable costs are confined to the expenses necessarily incurred for the purpose of the proceedings (see, to that effect, order of 17 December 2020, Zumex Group v Comercializadora Eloro, C‑71/16 P-DEP, not published, EU:C:2020:1060, paragraph 22 and the case-law cited).
20 It should also be recalled that the Courts of the European Union are not empowered to tax the fees payable by the parties to their own lawyers, but rather may determine the amount of those fees to be recovered from the party ordered to pay the costs. Moreover, in ruling on the application for taxation of costs, those courts are not obliged to take account of any national scales of lawyers’ fees (order of 17 December 2020, Zumex Group v Comercializadora Eloro, C‑71/16 P-DEP, not published, EU:C:2020:1060, paragraph 23 and the case-law cited).
21 In the absence of provisions of EU law laying down fee scales, the Court must make an unfettered assessment of the facts of the case, taking into account the subject matter 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 case for the agents or advisers involved and the financial interest which the parties had in the proceedings (order of 17 December 2020, Zumex Group v Comercializadora Eloro, C‑71/16 P-DEP, not published, EU:C:2020:1060, paragraph 24 and the case-law cited).
22 Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the delivery of the order on the taxation of the costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (order of 17 December 2020, Zumex Group v Comercializadora Eloro, C‑71/16 P-DEP, not published, EU:C:2020:1060, paragraph 25 and the case-law cited).
23 It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.
24 As regards, in the first place, the subject matter and nature of the proceedings, it should be observed that the present application for taxation of recoverable costs concerns both the proceedings at first instance before the General Court, and the appeal proceedings before the Court of Justice.
25 The subject matter of those cases was the decision at issue and certain unlawful acts committed by the EIB in the investigation which gave rise to that decision including, in particular, the failure to respect OZ’s right to a fair hearing.
26 In that connection, it should be observed that an action for annulment and for compensation for damage requires a detailed and in-depth factual and legal examination of the case file (see, to that effect, order of 5 December 2018, TV2/Danmark v Viasat Broadcasting UK, C‑657/15 P-DEP, not published, EU:C:2018:985, paragraph 19).
27 In the present case, there was an exchange of pleadings in the procedure before the General Court, and that procedure did not give rise to a hearing. OZ lodged a 29-page application in which she relied on two pleas in law in support of her claim for compensation.
28 The first plea alleged infringement of the rules governing the investigation procedure and infringement of the appellant’s procedural rights under Article 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms, signed in Rome on 4 November 1950 (ECHR), and Article 47 of the Charter of Fundamental Rights of the European Union (‘the Charter’), on account of a failure to comply with several stages of the investigation procedure.
29 The second plea alleged infringement of Article 8 ECHR and Article 7 of the Charter, on the basis of the appellant’s claim that the Investigation Panel’s report and the decision at issue contained, according to OZ, elements relating to her private life, in particular regarding her psychological health, which were irrelevant in the light of the subject matter of the investigation.
30 In Case C‑558/17 P, OZ lodged a 31-page appeal. Following an exchange of pleadings, the Court held a hearing.
31 The appellant relied on three grounds in support of her appeal, alleging, first, infringement of Article 47 of the Charter and Article 6 ECHR, second, infringement of Article 7 of the Charter and Article 8 ECHR and, third, a denial of justice.
32 As regards, in the second place, the significance of the dispute from the point of view of EU law and the difficulties presented by it, it should be noted that, in order to obtain the important clarification, given by the Court in the appeal proceedings, that the fact that a summary, at the very least, of the statements made by the person accused of harassment and the various witnesses heard was not disclosed to OZ, and that she was not heard on the subject of those statements was in breach of the requirements flowing from Article 41 of the Charter, OZ had to rebut a number of arguments drawn, by the EIB, from the case-law of the Court of Justice and the General Court and establish that the latter had erred in law.
33 In the latter connection, the Court further ruled that it required the benefit of an Opinion of the Advocate General.
34 It must therefore be found that this was a particularly significant and difficult dispute.
35 As regards, in the third place, the extent of the work which the proceedings required, it should be observed that, in the calculation of the amount of recoverable costs, OZ has included fees relating to work done by an experienced lawyer and several of his colleagues.
36 In that connection, it should be borne in mind that while, in principle, the remuneration of only one agent, adviser or lawyer is recoverable, it is possible that, depending on the individual circumstances and. most importantly, the complexity of each case, the fees of a number of lawyers may be considered ‘necessary expenses' under Article 144(b) of the Rules of Procedure (order of 22 April 2020, Bilbaína de Alquitranes and Others v Commission, C‑691/15 P‑DEP, not published, EU:C:2020:284, paragraph 51 and the case-law cited).
37 It follows that, when fixing the amount of the recoverable costs, the Court should take account of the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings, irrespective of the number of lawyers amongst whom that work was shared (orders of 19 December 2019, Unitec Bio and Others v Council, C‑602/16 P-DEP, not published, EU:C:2019:1148, paragraph 35, and of 11 June 2020, Ferrero v BMB, C‑693/17 P-DEP, not published, EU:C:2020:449, paragraph 27).
38 Moreover, while hourly rates ranging between EUR 140 and EUR 300 depending on the lawyer concerned do not appear to be manifestly excessive in view of the circumstances of the case, it should be recalled that lawyers whose services are billed at an average hourly rate of over EUR 200 must be able to demonstrate that they are highly qualified and very experienced, and are presumed to handle the cases entrusted to them efficiently and speedily. Accordingly, the fact that remuneration at that rate is taken into account requires in return a strict assessment of the total number of hours’ work essential for the purposes of the proceedings in question (order of 22 April 2020, Bilbaína de Alquitranes and Others v Commission, C‑691/15 P-DEP, not published, EU:C:2020:284, paragraph 55).
39 Although it is apparent that the defence of OZ’s interests in both sets of proceedings did indeed entail a considerable amount of work, it is clear, however, that the very succinct application for taxation of costs that she has lodged does not, in itself, allow that amount to be assessed in detail. In so far as concerns the lawyers’ invoices annexed to that application, it should be observed, furthermore, that some of the services invoiced relate to periods prior to the proceedings at first instance, which cannot be taken into account for the purposes of taxing the costs relating to those proceedings (see, to that effect, order of 6 January 2004, Mulder and Others v Council and Commission, C‑104/89 DEP, EU:C:2004:1, paragraph 47).
40 As regards, in the fourth place, the financial interest which the parties had in the proceedings, it should be observed that the claims for compensation submitted by OZ amounted to more than EUR 26 000 which is a not inconsiderable sum, notwithstanding the fact that the Court did not award it.
41 In so far as concerns, in the fifth place, the fees incurred for the purposes of the present proceedings, it is apparent from the annexes to OZ’s application for taxation of costs that her lawyer charged her an amount of EUR 1 715.97, including VAT, corresponding to seven hours and 20 minutes’ work, which appear to relate to the present proceedings. Although an application for taxation of costs is largely standardised and, in principle, does not present any difficulties (order of 19 December 2019, Unitec Bio and Others v Council, C‑602/16 P-DEP, not published, EU:C:2019:1148, paragraph 41), such an amount does not appear to be disproportionate.
42 In the light of all of the considerations set out in paragraphs 24 to 41 of the present order, it must be found that 120 hours’ work at an average hourly rate of EUR 250 are objectively necessary for the purposes of the proceedings in Cases C‑558/17 P and T‑607/16.
43 In so far as concerns the EIB’s application seeking a reduction of the sum of recoverable costs by deducting therefrom an amount of EUR 3 000, corresponding to the fees which it claims to have incurred in the present proceedings, this should not be granted. Such a reduction in the total amount of the recoverable costs would in fact be tantamount to penalising OZ for the way in which her lawyer represented her, which would not be compatible with the purposes of these proceedings which, in any event, does not include any decision as to the costs relating thereto (see, to that effect, order of 20 January 2021, Council v Gul Ahmed Textile Mills, C‑100/17 P-DEP, not published, EU:C:2021:41, paragraph 44).
44 It follows from all of the foregoing considerations that EUR 30 000 constitutes a fair assessment of the costs recoverable from the EIB by OZ in Cases C‑558/17 P and T‑607/16.
On those grounds, the Court (Eighth Chamber) hereby orders:
The total amount of costs to be paid by the European Investment Bank (EIB) to OZ in Cases C‑558/17 P and T‑607/16 is fixed at EUR 30 000.
Luxembourg, 21 February 2022.
A. Calot Escobar
President of the Eighth Chamber
* Language of the case: English.