ORDER OF THE COURT (Second Chamber)

20 May 2010 ( )

(Taxation of costs)

In Joined Cases C-12/03 P-DEP and C‑13/03 P-DEP,

TWO APPLICATIONS for taxation of the costs to be recovered pursuant to Article 74 of the Rules of Procedure of the Court of Justice, lodged on 22 May 2009,

Tetra Laval BV, established in Amsterdam (Netherlands), represented by A. Vandencasteele and M. Johnsson, avocats,

applicant,

v

European Commission, represented by T. Christoforou, V. Di Bucci and V. Bottka, acting as Agents, with an address for service in Luxembourg,

defendant,

THE COURT (Second Chamber),

composed of J.N. Cunha Rodrigues, President of the Chamber, P. Lindh, A. Rosas (Rapporteur), U. Lõhmus and A. Ó Caoimh, Judges,

Advocate General: P. Mengozzi,

Registrar: R. Grass,

after hearing the Advocate General,

makes the following

Order

1 The present cases have as their subject-matter the taxation of the costs incurred by Tetra Laval BV (‘Tetra’) in two appeals.

2 On account of the connection between them, Cases C-12/03 P-DEP and C‑13/03 P-DEP are joined for the purposes of the order.

Case C-12/03 P

3 By an appeal lodged on 8 January 2003, the Commission of the European Communities requested the Court, in accordance with Article 49 of the Statute of the Court of Justice (now Article 56), to set aside the judgment of the Court of First Instance of the European Communities (now ‘the General Court’) of 25 October 2002 in Case T‑5/02 Tetra Laval v Commission [2002] ECR II‑4381, whereby that Court annulled Commission Decision 2004/124/EC of 30 October 2001 declaring a concentration to be incompatible with the common market and the EEA Agreement (Case No COMP/M. 2416 – Tetra Laval/Sidel) (OJ 2004 L 43, p. 13).

4 By judgment of 15 February 2005 in Case C‑12/03 P Commission v Tetra Laval [2005] ECR I‑987, the Court dismissed the Commission’s appeal and ordered it to pay the costs.

Case C‑13/03 P

5 By an appeal lodged on 8 January 2003, the Commission requested the Court, in accordance with Article 49 of the Statute of the Court of Justice, to set aside the judgment of 25 October 2002 in Case T‑80/02 Tetra Laval v Commission [2002] ECR II‑4519, whereby the General Court annulled Commission Decision 2004/103/EC of 30 January 2002 setting out measures in order to restore conditions of effective competition pursuant to Article 8(4) of Council Regulation (EEC) No 4064/89 [of 21 December 1989 on the control of concentrations between undertakings (OJ 1990 L 395, p. 1, corrected version in OJ 1990 L 257, p. 13, corrigendum OJ 1998 L 3, p. 16)] (Case COMP/M. 2416 – Tetra Laval/Sidel) (OJ 2004 L 38, p. 1).

6 By judgment of 15 February 2005 in Case C‑13/03 P Commission v Tetra Laval [2005] ECR I‑1113, the Court declared the Commission’s appeal devoid of purpose and ordered the Commission to pay the costs.

Forms of order sought by the parties

7 As Tetra and the Commission were unable to agree on the amount of the recoverable costs, Tetra requested the Court to adjudicate on the costs.

8 Tetra requests the Court to fix the amount of the costs to be recovered at EUR 924 703.90, corresponding to the fees and disbursements of its legal counsel in connection with the two appeals before the Court.

9 The Commission contends that the Court should dismiss the application for taxation of costs as inadmissible in its entirety.

10 In the alternative, the Commission submits that the Court should fix the recoverable costs at EUR 67 000 for Case C‑12/03 P and EUR 3 000 for Case C‑13/03 P.

Admissibility

Arguments of the parties

11 The Commission maintains that Tetra’s application for taxation of costs is inadmissible in its entirety.

12 After proposing to Tetra, in its reply of 27 October 2006 to Tetra’s claim for recovery of costs of 31 January 2006, whereby it sought to recover an amount of EUR 1 000 000, that the costs be settled at EUR 290 000 for the proceedings before both the General Court and this Court, the Commission received no response from Tetra for more than two years. Tetra confirmed to the Commission its intention to pursue its right to recover costs only on 23 December 2008, after receiving a second letter from the Commission stating that Tetra appeared to have waived its claims. The application for taxation was then lodged with the Court only on 22 May 2009.

13 Since more than two years and two months elapsed before the applicant responded to the Commission’s letter of 27 October 2006, Tetra effectively and definitively waived its right to pursue its claim.

14 The Commission maintains that a period of two years and two months is not a reasonable period within the meaning of the case-law of the Court, according to which the parties concerned are required to seek recovery of costs within a reasonable period (see order in Case 126/76 DEP Dietz v Commission [1979] ECR 2131, paragraph 1). The Commission submits that the ‘reasonable period’ requirement applies not only to the initial lodging of an unreasonably high and unsubstantiated claim but also to pursuing a valid claim, with the appropriate follow-up and the timely submission of the relevant evidence.

15 Tetra contends that the Commission’s position in that regard is unfounded.

16 Tetra observes, in the first place, that a limitation rule of the type proposed by the Commission is not supported by either the Rules of Procedure or the Statute of the Court of Justice.

17 Nor, in the second place, is the Commission’s position supported by the Court’s case-law. The Commission seeks to extend to intermediate steps in the taxation of costs procedure, which are taken after the time when a detailed claim has been communicated to the Commission, the case-law on the question whether a party which is entitled to have its costs paid by the other party to the proceedings can be considered to have implicitly waived that entitlement if it does not communicate its claim for recovery of costs in a timely manner. There is nothing in that case‑law that allows the Commission to conclude that Tetra waived its rights when a claim for recovery of costs had been submitted.

18 In addition, that case-law cannot in any event be translated to the present situation, since in this case there is no uncertainty for a prolonged period about the very existence of a claim for recovery of costs. The case-law in question is based on the consideration that it would be unreasonable to require the party ordered to pay the costs to endure such uncertainty.

19 In the third place, the general principle of non-retroactivity of Community law and, in particular, the general principle that procedural rules cannot be applied retroactively preclude in any event the application to Tetra of a new rule of procedure relating to taxation of costs proceedings which introduced a time-limit applicable not only to the submission of the initial claim but also to the subsequent steps in the procedure.

20 Last, on the assumption that the Commission’s argument were accepted by the Court, the conditions on which the Commission might assume that a claim for recovery of costs has been waived after a certain time, when such a claim had already been communicated, must be very restrictive and the period at issue in the present case cannot be considered unreasonable.

Findings of the Court

21 It follows from the Court’s case-law that a claim for recovery of costs must be submitted to the party ordered to pay the costs within a reasonable period (see, to that effect, order in Dietz v Commission, paragraph 1).

22 It must none the less be observed that Article 74 of the Rules of Procedure does not prescribe a time-limit for submission to the Court of a claim for taxation of costs (see, to that effect, order of 20 March 2003 in Case C‑60/97 P-DEP Commission v X, paragraph 14). Likewise, neither the Rules of Procedure nor the Court’s case-law prescribe a time-limit for the intermediate steps in the taxation of costs proceedings, taken after the time when a claim for recovery of costs has been communicated to the party ordered to pay the costs.

23 It is common ground that Tetra communicated its initial claim for recovery of costs to the Commission within a period which does not exceed the reasonable period beyond which it would be reasonable to consider that Tetra has waived its right to recover the costs which it had incurred.

24 Consequently, the objection of inadmissibility raised by the Commission must be rejected.

Substance

Arguments of the parties

25 Tetra claims that the appeals in Cases C‑12/03 P and C‑13/03 P raised new, important and complex questions, particularly with respect to the conditions on which the Commission may prohibit concentrations on the sole basis of conglomerate effects and the criteria on which that assessment should be made, and also to the types of commitments acceptable in merger procedures, the burden of proof and the standard of proof. That importance was also underlined by the Commission itself when it lodged its appeals with the Court. Although the Court rejected certain pleas for annulment as inadmissible or manifestly unfounded, Tetra was not absolved from the need to respond to those pleas, because the Commission had incorporated them in its appeal. Tetra also claims that cases relating to procedures under Regulation No 4064/89 often give rise to complex legal and economic issues and must be founded on detailed market analyses which require recourse to specialist counsel.

26 Tetra contends, moreover, that in claiming in its letter of 27 October 2006 that the outcome of the proceedings was not ultimately determined by legal questions regarding either the possibility of assessing conglomerate mergers under Regulation No 4064/89 or the role which disincentives play in such an assessment, the Commission embarks on an ex post facto analysis according to which recoverable costs are to be determined on the basis not of what appeared necessary at the time of the case but of what appears necessary after the outcome of the case is known. A party is entitled to incur costs in preparing its defence against an argument put forward by the Commission even if that argument is ultimately not the one on which the case is decided.

27 In addition, Tetra submits that the purchase price which it paid for Sidel SA, namely EUR 1.7 billion, was in itself sufficient to demonstrate Tetra’s significant financial interest in the proceedings in issue. It also observes that, under the French rules applicable to public offers, it was required to acquire the shares in Sidel SA at the time of making its public offer, and therefore before the Commission adopted its decision. Accordingly, the financial risk which it bore, namely the risk of having to sell the shares at a considerable loss should the transaction be prohibited, was considerably higher than in a typical concentration.

28 Tetra maintains that the very high financial stakes involved, and also the novel and complex issues raised by the Commission, fully justify the extent to which it had recourse to legal and technical counsel. The volume of work carried out by its counsel and the level of hourly rates shown in the annexes to its application for taxation of costs are wholly justified by the importance of the cases in question.

29 Apart from the fact that the figure put forward by the Commission as representing the hours of work carried out by its own agents is unrealistic, Tetra also maintains that that number of hours of work cannot be compared with the number of hours of work carried out by Tetra’s counsel, as the number of hours which the Commission devotes to a matter does not dictate what is deemed objectively necessary in order for a company to defend its interests.

30 Last, as regards the disbursements in the form of, in particular, telephone calls, faxes, copying and travel, Tetra maintains that they are also incurred other than in connection with hearings before the Court, and leaves it to the Court to make an appropriate assessment of the amount of recoverable costs in that regard.

31 The Commission maintains, first of all, that Tetra’s application for taxation of costs is insufficiently reasoned. It does not distinguish between the costs incurred for the purposes of Case C‑12/03 P and those connected with Case C‑13/03 P. Furthermore, the application itself provides the Court and the Commission with little justification and does not specify either the breakdown of the hours worked by the lawyers concerned or the total number of hours’ work claimed. Only by reading the annexes to the application is it possible to detect any justification for the actual components of the amount attaching to the appeal proceedings in issue, several items of which, moreover, are either irrecoverable or excessive, and to arrive indirectly at the number of hours’ work claimed by each of the three law firms involved in the proceedings. In support of its argument, the Commission refers to the case-law according to which the ability of the Community judicature to assess the value of a lawyer’s work is dependent on the accuracy of the information provided (see order of 9 November 1995 in Case C‑89/95 DEP Ahlström Osakeyhtiö and Others v Commission, paragraph 20).

32 In the event that the Court should deem it necessary to consider Tetra’s application for taxation of costs in greater detail, in spite of the absence of relevant reasoning, the Commission contends, next, that by their nature the two appeals did not raise any new issues. In so far as the Court found that a number of pleas related to the General Court’s assessment of the facts or resulted from a misinterpretation of its findings, the appeals did not call for a great deal of additional work and did not represent any objective novelty. The fact that Tetra relied on the Commission’s written observations in the appeal proceedings in question cannot alter that conclusion, as the importance of a case is determined not by the subjective views of the parties but by the objective place which the judgment occupies in the general framework of Community law.

33 As regards the complexity of the cases in question and the amount of work thereby generated, the complex elements of fact and of law have all been debated already at length in the series of proceedings which took place before the two appeals in question. Furthermore, the legal and economic questions raised by the appeals were neither as numerous nor as complex as in similar cases (see orders in Case T‑342/99 DEP Airtours v Commission [2004] ECR II‑1785 and of 29 October 2004 in Case T‑77/02 DEP Schneider Electric v Commission).

34 In addition, while it is indisputable that Tetra had a substantial economic interest in the outcome of the two appeals in question, that interest was however significantly less than in the case giving rise to the order in Schneider Electric v Commission. In any event, Tetra has failed to demonstrate how the factors of importance, difficulty and economic interest which it has enumerated required the hours of work and other excessive costs in question in those appeals.

35 As regards Tetra’s argument relating to an ex post facto analysis by the Commission of the arguments on the basis of which the cases in question were determined, the Commission submits that the factors of importance and complexity of the cases cannot be analysed in isolation from the judgments delivered by the General Court in those cases and from the objective significance of the cases for Community law. A party is not free to recover, by way of costs, the sums relating to the services of numerous lawyers and to excessive and unnecessary work on the sole ground that a case assumes subjective importance in that party’s eyes.

36 The Commission maintains, moreover, that the number of hours’ work claimed by Tetra in the context of the two sets of proceedings before this Court, which in its letter of 27 October 2006 is estimated at 2 031 hours, or almost 51 working weeks, and also the hourly rates claimed are clearly excessive. The two appeals in question did not require the uninterrupted full-time work of three law firms for 11 months. By way of comparison, the Commission estimates that its various agents worked for approximately 113 hours in connection with the appeals. Even on the assumption that Tetra needed twice as much time as the Commission’s agents actually needed in order to prepare the various documents and submissions in the cases in question, the total number of hours would be 226, which is an appropriate number in the light of the case-law on mergers. At a rate of EUR 300 per hour, Tetra would thus be entitled to recover at most a reasonable amount of EUR 67 800 for the appeals. The Commission further observes that the high level of the hourly rates charged by a highly specialised lawyer should have the effect of moderating the number of hours worked. In addition, Tetra’s lawyers were already familiar with the cases by the appeal stage, since they had already represented Tetra in the administrative procedure and before the General Court and since they are generally accustomed to dealing with merger cases of the same type.

37 The Commission maintains that the hourly rate charged by Tetra’s counsel should not exceed an average of EUR 300. In fact, the hourly rates submitted in counsel’s time-sheets appear to range between EUR 125 and EUR 660.

38 The Commission also refers to an unnecessary multiplication of lawyers and law firms by Tetra, which can increase costs unnecessarily. Tetra has not justified its recourse to three different law firms and their staff in the appeal proceedings in question.

39 Last, a number of specific items set out in the time-sheets are not justified as expenses necessarily incurred, such as restaurants and evening meals, out-of-town lodging, internal organisation expenses, travel other than to Court hearings or informal meetings, photocopies other than those specifically required by the Court, communication costs between two lawyers representing the same party, case-law analysis and reading the Opinion of the Advocate General, and also reading articles, and costs incurred after the hearing.

Findings of the Court

40 Under Article 73(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 to be regarded as recoverable costs.

41 It follows from consistent case-law that recoverable costs are to be limited, first, to expenses incurred for the purposes of the proceedings before the Court and, second, to expenses necessarily incurred for those purposes (see order in Case C‑104/89 DEP Mulder and Others v Council and Commission [2004] ECR I-1, paragraph 43 and case-law cited).

42 Furthermore, in fixing the recoverable costs, the Court takes account of all the circumstances of the case up to the making of the order on taxation of the costs, including the expenses necessarily incurred in relation to the taxation of costs proceedings (see, in particular, order of the President of 19 March 2009 in Case C‑122/06 P-DEP Gas Natural v Endesa, paragraph 17, and order of 3 September 2009 in Case C‑326/05 P-DEP Industrias Químicas del Vallés v Commission, paragraph 35).

Lawyers’ fees

43 It should be borne in mind at the outset that the Courts of the European Union are authorised not to tax the fees payable by the parties to their own lawyers, but to determine the amount up to which that remuneration may be recovered from the party ordered to pay the costs (see, in particular, order of 10 September 2009 in Case C‑204/07 P‑DEP C.A.S. v Commission, paragraph 13).

44 It has also consistently been held that, in the absence of any provisions of European Union law (‘EU law’) relating to tariffs or to the necessary working time, the Court 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, in particular, orders of 9 January 2008 in Case C‑104/05 P-DEP Pucci v El Corte Inglés, paragraph 10 and case-law cited, and C.A.S. v Commission, paragraph 14).

45 It is in the light of those factors that the Court must assess the amount of the recoverable costs in the present case.

– The subject-matter and the nature of the disputes in question, their importance from the point of view of EU law and the difficulties of the case

46 As regards the subject-matter and the nature of the disputes in question, it must be borne in mind that the disputes before this Court consisted of two appeals lodged by the Commission against the judgments in Tetra Laval v Commission whereby the General Court annulled Decision 2004/124 and Decision 2004/103.

47 The appeal proceedings, on account of their very nature, are limited to points of law and do not involve findings as to fact (see, in particular, orders in Gas Natural v Endesa, paragraph 19, and Industrias Químicas del Vallés v Commission, paragraph 38).

48 As to the importance of the disputes from the point of view of EU law and the difficulties of the case, it must be observed that, with respect to the appeal lodged by the Commission in Case C‑12/03 P, Tetra was required to respond to five pleas in law.

49 Examination of those pleas led the Court inter alia, first, to specify the quality of the evidence that must be adduced by the Commission where it is required to show that a concentration is incompatible with the common market and also the scope of the General Court’s power of judicial review and, second, to rule on whether the Commission should take into account commitments as to conduct. As the Commission itself emphasised in its appeal, moreover, it is common ground that the appeal raised complex points of law which were important in the sphere of the control of concentrations, as they had a definite impact on the Commission’s future practice in the framework of that control.

50 As regards the appeal lodged by the Commission in Case C‑13/03 P, Tetra was required to respond to a single plea in law, relating to the possibility that, in Case C‑12/03 P, the judgment in Case T‑5/02 Tetra Laval v Commission would be set aside.

– The economic interests which the disputes in question presented for the parties

51 As regards the economic interests which the disputes in question presented for the parties, both appeals indisputably had significant economic importance for Tetra, since if the judgments in Tetra Laval v Commission had been set aside its acquisition of Sidel SA at a purchase price of EUR 1.7 billion would have been compromised.

– The amount of work carried out

52 The subject-matter of the disputes in question, the importance and complexity of the points of law raised by the Commission’s appeal in Case C‑12/03 P and also the economic interest which both appeals represented for Tetra did indeed justify a substantial workload.

53 The fact, to which the Commission refers, that the Court considered that a number of pleas concerned the assessment of the circumstances of fact by the General Court or resulted from a misinterpretation of that Court’s findings cannot undermine that assertion. In that regard, it is difficult for the Commission to criticise Tetra for having responded to inadmissible or unfounded pleas which the Commission itself submitted. The same applies to the fact that, in the Commission’s submission, the outcome of the cases in question was ultimately not determined by certain points which it raised, since Tetra was none the less required to prepare its defence with respect to those points.

54 It must none the less be observed that, as the Commission emphasises, the cases in question had already been analysed in depth by Tetra at first instance. It is common ground that most of the counsel representing Tetra in the appeals before this Court had already represented it before the General Court and were familiar with the cases (see, to that effect, order of 6 November 1996 in Case C‑220/91 P‑DEP Preussag Stahl v Commission, paragraph 10).

55 As to the fact that Tetra was assisted by several law firms in the two appeals, which in the Commission’s view was unnecessary, it should be observed that if, in principle, the remuneration of a single agent, counsel or lawyer is recoverable, it may be that, depending on the specific characteristics of each case, foremost among which is its complexity, the remuneration of a number of lawyers may be regarded as coming within the concept of ‘expenses necessarily incurred’ within the meaning of Article 73(b) of the Rules of Procedure (see, in particular, orders in Mulder and Others v Council and Commission, paragraph 62, and of 11 January 2008 in Joined Cases C‑105/04 P-DEP and C‑113/04 P-DEP CEF City Electrical Factors and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie, paragraph 41).

56 It follows that, when fixing the amount of the recoverable costs, the Court should take account of the total number of hours’ work corresponding to the services provided and considered objectively necessary for the purposes of the proceedings concerned, irrespective of the number of lawyers who may have provided those services (see, to that effect, order in CEF City Electrical Factors and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie, paragraph 42).

57 In that regard, the possibility for the Courts of the European Union to assess the value of the work carried out by a lawyer depends on the degree of precision of the information supplied (see, in particular, orders in Ahlström Osakeyhtiö and Others v Commission, paragraph 20, and CEF City Electrical Factors and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch Gebied and Technische Unie, paragraph 39).

58 In the present case, Tetra’s application for taxation of costs sets out the overall amounts invoiced for work carried out by the three law firms which assisted Tetra in the two appeals before the Court, but does not state the total number of hours of work claimed by Tetra for those appeals: that number emerges only indirectly after a calculation carried out upon reading the multiple pages of the annexes to the application for taxation of costs, in which the various fee notes submitted by the three law firms are reproduced. Furthermore, as the Commission correctly observes, Tetra has not distinguished the expenses incurred for the purpose of Case C‑12/03 P from those in connection with Case C‑13/03 P.

59 It must be observed that, in its letter to Tetra of 27 October 2006, the Commission estimated, without that number being disputed by Tetra, that the total number of hours’ work claimed by Tetra in connection with the two appeals amounted to 2 031 hours, which represents almost 51 working weeks on the basis of eight hours charged per day. Regard being had to all the characteristics of the disputes in question set out above, in particular the fact that the appeal proceedings are limited to points of law and that the cases in question had already been examined in depth by Tetra at first instance, that number of hours of work appears to be excessive.

60 It should be stated that, in response to the appeals and to the replies lodged by the Commission in the two cases in issue, Tetra’s counsel drafted two pleadings in each case. They also responded to the questions put by the Court and participated in the hearing before the Court on 27 January 2004, which was common to the two cases.

61 While it was indeed open to Tetra, as stated at paragraph 55 of this order, to entrust its defence to a number of lawyers, a comparison of the fee notes submitted by the three law firms which assisted Tetra at the appeal stage shows however that their work overlapped, as its subject-matter was in part the same.

62 Last, certain periods must be disregarded in the calculation of the fees. The lawyers’ fees relating to a period after the oral procedure before the Court, such as those claimed with respect to the perusal of the Opinion of the Advocate General, cannot thus be characterised as expenses necessarily incurred for the purpose of the proceedings at issue (see, to that effect, order in Mulder and Others v Council andCommission, paragraphs 48 and 50).

63 As regards the hourly rates, it is appropriate, in light of all the characteristics of the disputes in question, to fix the hourly rate applicable to Tetra’s counsel at EUR 300. The fact that remuneration at that rate is taken into account requires moreover in return a strict assessment of the total number of hours’ work essential for the purposes of the proceedings in question.

64 In light of all of the foregoing, and regard being had to the criteria set out at paragraph 44 of this order, it is appropriate to fix the number of hours’ work essential for Tetra for the purposes of the proceedings in question before the Court at approximately 400. At an hourly rate of EUR 300, the lawyers’ fees recoverable by Tetra can be assessed on an equitable basis at EUR 120 000.

The lawyers’ disbursements

65 As regards the lawyers’ disbursements set out in the various invoices submitted by the law firms which assisted Tetra, it should be stated that the information supplied by Tetra does not make it possible to determine whether all those disbursements were necessary.

66 Thus, Tetra does not explain to what extent certain expenses such as, in particular, those for food and evening meals or travel other than for the purpose of attending the hearing before the Court were necessary for the purposes of the proceedings in question before the Court. As to the expenses connected with communications between Tetra’s various counsel, they cannot be considered in their entirety to be expenses necessarily incurred for the purposes of those proceedings. Nor does Tetra justify the high level of certain expenses such as printing costs.

67 In those circumstances, the lawyers’ disbursements should be assessed, as a fixed sum, at EUR 4 000.

68 In light of all the foregoing considerations, the recoverable costs, including those relating to the present taxation proceedings, can be assessed on an equitable basis at a total amount of EUR 124 000.

On those grounds, the Court (Second Chamber) hereby orders:

1. Cases C‑12/03 P-DEP and C‑13/03 P-DEP are joined for the purposes of the order.

2. The total amount of the costs to be reimbursed by the European Commission to Tetra Laval BV is fixed at EUR 124 000.

[Signatures]