Order of the Court of First Instance (First Chamber, extended composition) of 6 February 1995. - Etienne Tête and others v European Investment Bank. - Taxation of costs. - Case T-460/93 DEPE.



European Court reports 1995 Page II-00229



Summary

Parties

Grounds

Operative part



Keywords

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1. Procedure ° Costs ° Recoverable costs ° Concept ° Expenses necessarily incurred by the parties ° Expenses of lawyers acting for Community institutions or bodies

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

2. Procedure ° Costs ° Taxation ° Recoverable costs ° Concept ° Matters to be taken into consideration

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

Summary

1. Where, in proceedings before the Court, a Community institution or body makes use of the possibility afforded to it by the first paragraph of Article 17 of the Statute of the Court of Justice of the EEC to be assisted by a lawyer, that lawyer' s remuneration constitutes expenses necessarily incurred for the purpose of the proceedings within the meaning of Article 91(b) of the Rules of Procedure of the Court of First Instance.

2. The Court is not empowered under Article 91 of its Rules of Procedure 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. It follows that the Court is not obliged to take into account any national scales of lawyers' fees or any agreement in relation to fees concluded between the party concerned and his agents or advisers.

Since Community law does not contain any provisions laying down a scale of fees, the Court of First Instance must consider all 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 dispute for the agents and advisers involved and the financial interest which the parties had in the proceedings.

Since, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the time of its decision, there is no need for it to rule separately on the costs incurred by the parties for the purposes of the proceedings on the taxation of costs.

Parties

In Case T-460/93 Costs,

Etienne Tête, residing at Caluire-et-Cuire (France),

Jean-Pierre Raffin, residing in Paris,

Felix Massola, residing at Villeurbanne (France),

Louis-Max Duplessy, residing at Villeurbanne,

Marie-Louise Guigen, residing at Villeurbanne,

Henri Chevaleyre, residing at Villeurbanne,

François Meillasson, residing at Villeurbanne,

Jean Margerand, residing at Villeurbanne,

Jean-Claude Pagand, residing at Villeurbanne,

Henri Alloix, residing at Villeurbanne,

Groupe des élus verts au conseil régional, based at Charbonnières-les-Bains (France),

Collectif auto-stop, based at Lyon (France),

Association sauvegarde de l' Ouest lyonnais, based at Caluire-et-Cuire,

represented by Jean-Marc Bazy, of the Lyon Bar, with an address for service in Luxembourg at the Chambers of Monique Wirion, 1 Place du Théâtre,

applicants,

v

European Investment Bank, represented by Luigi La Marca, Avocat, Principal Lawyer in the Legal Affairs Department, acting as Agent, assisted by Charles Turk, of the Luxembourg Bar, with an address for service in Luxembourg at the European Investment Bank, 100 Boulevard Konrad Adenauer,

defendant,

APPLICATION for the taxation of costs following the order of the Court of First Instance of 26 November 1993 in Case T-460/93 Tête and Others v European Investment Bank [1993] ECR II-1257,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber, extended composition),

composed of: J.L. Cruz Vilaça, President, A. Saggio, H. Kirschner, A. Kalogeropoulos and V. Tiili, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

1 By application of 18 November 1992, the applicants sought the annulment of a decision of the European Investment Bank (hereinafter "the EIB") granting to the communauté urbaine [municipal authority] of Lyon a loan to finance its contribution to the project for the northern sector of the ring road of the Lyon conurbation. By order of 26 November 1993, the Court of First Instance dismissed the application as inadmissible and ordered the applicants jointly and severally to pay the costs.

2 2 On the strength of this, the EIB sent a request to the applicants to pay its expenses and lawyers' fees amounting to BFR 1 016 640. Upon the applicants' refusal to pay that sum, the EIB claimed, by application pursuant to Article 92 of the Rules of Procedure received at the Court Registry on 12 October 1994, that the Court should:

(i) declare the claim admissible and well founded;

(ii) declare that in Case T-460/93 the EIB was entitled to have its agent assisted by a lawyer;

(iii) declare that the lawyer' s remuneration formed part of the expenses necessarily incurred for the purposes of the proceedings;

(iv) order the applicants, in accordance with the order of 26 November 1993, jointly and severally to pay the EIB by way of recoverable costs the amounts which it incurred, that is to say, a total of BFR 1 016 640 together with default interest at the legal rate running from 9 June 1994, the date on which the notice to pay expired.

The applicants contend that the Court should:

(i) fix the total amount of costs to be recovered from the applicants at BFR 180 000 including all charges;

(ii) dismiss all the EIB' s other claims;

(iii) order the parties to bear their own costs as far as the present proceedings are concerned.

3 The EIB points out that, according to the first paragraph of Article 17 and the first paragraph of Article 46 of the Statute of the Court of Justice of the EC, "... the institutions of the Community shall be represented ... by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer entitled to practise before a court of a Member State". The EIB argues that that provision confers a right on it which is not limited by any text. It is a corollary of that principle that the expenses and remuneration occasioned by the services of a lawyer must be regarded as expenses necessarily incurred by the party for the purposes of the proceedings and constitute recoverable costs within the meaning of Article 91(b) of the Rules of Procedure.

4 The EIB observes that the total amount of the expenses properly so called, namely BFR 66 640, is not disputed. As for the fees, their amount is justified, in the EIB' s view, by the amount at stake in the proceedings, since the decision sought to be annulled related to the opening of a credit of more than BFR 7.2 billion. The complexity of the case, in particular the interpretation to be given to Article 180 of the EC Treaty, together with the fact that the EIB' s reputation was called in question, also justified the amount of expenses and fees sought. In view of the issues raised and what was at stake financially in the proceedings, considerable research and interpretation work, which was summarized in EIB' s written submission of 8 March 1992, had been necessary.

5 The applicants contest the fees claimed on the grounds that a lawyer' s services were not essential, since the EIB was already represented by an agent, and in any event the amount of the fees was excessive. However, the applicants consider that a total payment of BFR 180 000 to cover expenses and fees would be justified.

6 Under the terms of Article 91(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 regarded as recoverable costs.

7 Accordingly, it should first be considered whether the fees paid by the EIB to its lawyers can be regarded as recoverable when it was already represented by an agent.

8 According to the second paragraph of Article 1 of the Rules of Procedure, the EIB is expressly treated as an institution for the purposes of the application of those rules. That provision provides that "For the purposes of these Rules, 'institutions' means the institutions of the European Communities and the European Investment Bank".

9 Moreover, the first paragraph of Article 17 of the Statute of the Court of Justice of the EC provides as follows:

"The States and the institutions of the Community shall be represented before the Court by an agent appointed for each case; the agent may be assisted by an adviser or by a lawyer entitled to practise before a court of a Member State".

10 According to the case-law of the Court of Justice, it follows from that provision that the institutions are free to decide whether they will have recourse to the assistance of a lawyer and that the lawyer' s remuneration comes within the concept of expenses necessarily incurred for the purpose of the proceedings (see the orders of the Court of Justice in Case 126/76 Costs Dietz v Commission [1979] ECR 2131, paragraphs 5 and 6, and in Case C-370/89 Costs EIB v SGEEM and Etroy, not published in the European Court Reports, paragraph 9).

11 Since, as a result, that first objection raised by the applicants must be rejected, it is appropriate to determine the amount of costs recoverable. It should be observed in limine that "the Community courts are not empowered to tax the fees payable by the parties to their own lawyers but may determine the amount of those fees which may be recovered from the party ordered to pay the costs. It follows that the Court of First Instance is not obliged to take account of any national scales of lawyers fees or any agreement in relation to fees concluded between the party concerned and his agents or advisers. Since Community law does not contain any provisions laying down a scale of fees, the Court of First Instance must consider all 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 dispute for the agents and advisers involved and the financial interest which the parties had in the proceedings (order of the Court of Justice in Case 318/82 Leeuwarder Papienwarenfabriek v Commission [1985] ECR 3727)" (order of the Court of First Instance in Case T-78/89 Costs PPG Industries Glass v Commission [1993] ECR II-573, paragraph 36).

12 In the circumstances of this case, it should be noted that in the main proceedings the EIB merely claimed that the Court should rule on the admissibility of the application. Even though the EIB raised several arguments in support of this claim, it appears from the Court' s order of 26 November 1993 that the inadmissibility of the application stemmed from the actual wording of Article 180 of the Treaty. Whilst the Court also included alternative considerations in its order, it must be held that the defence in the main proceedings was relatively straightforward and that the EIB' s prestige was not called in question in any way. Consequently, the Court considers that the total amount of recoverable costs must be set at BFR 220 000, including the uncontested costs.

13 Since this order constitutes the legal basis for the EIB' s right to the whole of that sum, the claim for default interest in relation to an earlier period commencing on 9 June 1994 must be rejected (see, to this effect, the order in PPG Industries Glass v Commission, cited above, paragraphs 28 and 29).

14 Since, in fixing the recoverable costs, the Court has taken account of all the circumstances of the case up to the time of this ruling, there is no need for it to rule separately on the costs incurred by the parties for the purposes of these ancillary proceedings (see the order of the Court of First Instance in Case T-84/91 Costs Meskens v Parliament [1993] ECR II-757, paragraph 16).

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber, extended composition)

hereby orders:

The total amount of the costs recoverable by the defendant in Case T-460/93 is fixed at BFR 220 000.

Luxembourg, 6 February 1995.