Order of the Court of First Instance (First Chamber, extended composition) of 11 July 1995. - Automobiles Peugeot SA and Peugeot SA v Commission of the European Communities. - Taxation of costs. - Cases T-23/90 (92) and T-9/92 (92).



European Court reports 1995 Page II-02057



Summary

Parties

Grounds

Operative part



Keywords

++++

Procedure ° Costs ° Taxation ° Recoverable costs ° Meaning ° Factors to be taken into account

(Rules of Procedure of the Court of First Instance, Arts 91(b) and 92(1))

Summary

In the absence of Community provisions on scales of fees, it is for the Community judicature, when taxing costs pursuant to Article 92(1) of the Rules of Procedure of the Court of First Instance, freely to consider the circumstances of the case, having regard to the subject-matter and nature of the dispute, its importance from the point of view of Community law and of the difficulties of the case and the extent of the work which the pre-litigation procedure may have involved for the agents or lawyers working on the case and, for that purpose, it does not have to take account of any national scales of lawyers' fees or any agreement concluded between the party concerned and his agents or advisers.

Since the Court, in determining the recoverable costs, takes account of all the circumstances of the case up to the time of its decision, it is unnecessary to make a separate order as to the costs incurred by the parties in relation to the proceedings for the taxation of costs.

Parties

In Case T-23/90 (92),

Automobiles Peugeot SA and Peugeot SA, companies governed by French law, having their registered offices in Paris, represented by Xavier de Roux, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Guy Loesch, 8 Rue Zithe,

applicants,

v

Commission of the European Communities, represented initially by Jacques Bourgeois, Principal Legal Adviser, then by Giuliano Marenco, Legal Adviser, acting as Agents, assisted by Francis Herbert, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

Eco System SA, a company governed by French law, having its registered office in Rouen, France, represented by Robert Collin, of the Paris Bar, and Nicolas Decker, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 16 Avenue Marie Thérèse,

Bureau Européen des Unions de Consommateurs (BEUC), an association governed by Belgian law, having its office in Brussels, represented by Philip Bentley, Barrister, of Lincoln' s Inn, and Konstantinos Adamantopolous, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Arsène Kronshagen, 12 Boulevard de la Foire,

and

United Kingdom of Great Britain and Northern Ireland, represented by Hussein A. Kaya, acting as Agent, with an address for service in Luxembourg at the British Embassy, 14 Boulevard Roosevelt,

interveners,

APPLICATION for taxation of the costs to be reimbursed by the applicants to the intervener Eco System SA following the order made on 21 May 1990 by the President of the Court of First Instance on an application for interim measures in Case T-23/90 R Peugeot v Commission [1991] ECR II-195 and the judgment of the Court of First Instance (First Chamber) of 12 July 1991 in Case T-23/90 Peugeot v Commission [1991] ECR II-653,

and in Case T-9/92 (92),

Automobiles Peugeot SA and Peugeot SA, companies governed by French law and having their registered offices in Paris, represented by Xavier de Roux, of the Paris Bar, with an address for service in Luxembourg at the Chambers of Guy Loesch, 8 Rue Zithe,

applicants,

v

Commission of the European Communities, represented by Giuliano Marenco, Legal Adviser, acting as Agent, assisted by Francis Herbert, of the Brussels Bar, with an address for service in Luxembourg at the office of Carlos Gómez de la Cruz, of its Legal Service, Wagner Centre, Kirchberg,

defendant,

supported by

Eco System SA, a company governed by French law, having its registered office in Rouen, France, represented by Robert Collin, of the Paris Bar, and Nicolas Decker, of the Luxembourg Bar, with an address for service in Luxembourg at the latter' s Chambers, 16 Avenue Marie Thérèse,

and

Bureau Européen des Unions de Consommateurs (BEUC), an association governed by Belgian law, having its office in Brussels, represented by Philip Bentley, Barrister, of Lincoln' s Inn, and Konstantinos Adamantopolous, of the Athens Bar, with an address for service in Luxembourg at the Chambers of Arsène Kronshagen, 12 Boulevard de la Foire,

interveners,

APPLICATION for taxation of the costs to be reimbursed by the applicants to the intervener Eco System SA following the judgment of the Court of First Instance (Second Chamber) of 22 April 1993 in Case T-9/92 Peugeot v Commission [1993] ECR II-493,

THE COURT OF FIRST INSTANCE

OF THE EUROPEAN COMMUNITIES (First Chamber, Extended Composition),

composed of: J.L. Cruz Vilaça, President, D.P.M. Barrington, A. Saggio, H. Kirschner and V. Tiili, Judges,

Registrar: H. Jung,

makes the following

Order

Grounds

Procedure

1 By application received at the Registry of the Court of First Instance on 24 April 1990, Automobiles Peugeot SA and Peugeot SA (hereinafter jointly referred to as "Peugeot") brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of the Commission Decision of 26 March 1990 in a proceeding under Article 85 of the EEC Treaty (IV/33.157 ° Eco System/Peugeot ° Provisional measures). In the contested decision, the Commission ordered Peugeot to suspend the operation of a circular of 9 May 1989 until a final decision had been adopted in the main proceedings commenced following a complaint by Eco System. That circular asked approved dealers and resellers in France, Belgium and Luxembourg to suspend deliveries to Eco System and no longer to register orders for new Peugeot vehicles from Eco System whether on its own account or on behalf of its principals.

2 By a separate document received at the Registry of the Court of First Instance on the same date, Peugeot also applied for interim measures, under Article 186 of the EEC Treaty suspending the operation of the contested decision.

3 By order of 21 May 1990 in Case T-23/90 Peugeot v Commission [1990] ECR II-195, the President dismissed that application for interim measures.

4 By order of the Court of First Instance (First Chamber) of 5 July 1990, Eco System was granted leave to intervene in support of the defendant in Case T-23/90.

5 By judgment of 12 July 1991 in Case T-23/90 Peugeot v Commission [1991] ECR II-653, the Court of First Instance dismissed the application and ordered Peugeot to pay its own costs and those of, inter alia, the intervener Eco System.

6 By application received at the Registry of the Court of Justice on 12 September 1991, Peugeot appealed against that judgment under Article 49 of the Statute of the Court of Justice of the EEC (Case C-229/91 P).

7 By application received at the Registry of the Court of First Instance on 10 February 1992 Peugeot brought an action under the second paragraph of Article 173 of the EEC Treaty for the annulment of the Commission Decision of 4 December 1991 in a proceeding under Article 85 of the EEC Treaty (IV/33.157 ° Eco System/Peugeot, OJ 1992 L 66, p. 1), in which the Commission found that the sending of the circular of 9 May 1989 to its dealers in France, Belgium and Luxembourg, and its implementation by them, constituted an agreement, or at least a concerted practice, prohibited by Article 85(1) of the EEC Treaty and ordered Peugeot to bring the infringement to an end by sending a new circular to its dealers cancelling the circular of 9 May 1989.

8 Following the decision of 4 December 1991, Peugeot withdrew its appeal against the judgment of the Court of First Instance of 12 July 1991. By order of 6 April 1992, the President of the Court of Justice directed that Case C-229/91 P be removed from the register.

9 By order of the President of the Second Chamber of the Court of First Instance of 9 July 1992, Eco System was granted leave to intervene in support of the defendant in Case T-9/92.

10 By judgment of 22 April 1993, the Court of First Instance dismissed the application and ordered Peugeot to bear its own costs and to pay those of, inter alia, the intervener Eco System.

11 By application received at the Registry of the Court of Justice on 22 June 1993, Peugeot appealed against that judgment under Article 49 of the Statute of the Court of Justice of the EEC (Case C-322/93 P).

12 By judgment of 16 June 1994, the Court of Justice dismissed the appeal and ordered Peugeot to pay the costs in their entirety.

13 By letter of 23 December 1994, the firm of lawyers representing Eco System asked Peugeot to reimburse a total sum of FF 530 651.46 in respect of costs incurred in Case T-23/90, including those of the application for interim measures.

14 By letter of the same date, the same firm also asked Peugeot to pay a total of FF 283 691 in respect of the costs incurred in Case T-9/92.

15 Since Peugeot did not agree to pay, Eco System, by application received at the Registry of the Court of First Instance on 24 April 1995, asked the Court, pursuant to Article 92(1) of the Rules of Procedure, to make an order fixing the total recoverable costs, comprising lawyers fees and disbursements, at FF 814 342.46.

16 On 7 June 1995, Peugeot submitted observations on the application for taxation of costs lodged by Eco System and asked the Court to fix the total costs at FF 230 443.46. The other parties to the proceedings did not submit observations.

Summary of the parties' arguments

17 Eco System considers that the sum which it has asked the Court to approve in respect of recoverable costs is justified not only by the time which its lawyer had to devote to the documents relating to the cases, in view of their complexity, but also by the fact that its lawyer is a particularly well-known practitioner.

18 With regard to the complexity of the cases, Eco System states that they marked the first occasion on which the concept of authorized intermediary, within the meaning of Commission Regulation (EEC) No 123/85 of 12 December 1984 on the application of Article 85(3) of the Treaty to certain categories of motor vehicle distribution and servicing agreements (OJ 1985 L 15, p. 16) had been raised before the Commission and the Court of First Instance. The arguments put forward by Peugeot led not only to a very detailed discussion of the facts but also to a very comprehensive study of the concept of a written authorization, and the scope and limits thereof in French law, in order to prove that Eco System' s conduct fell within the scope of the powers of an authorized agent under the French Civil Code.

19 Regarding the hourly rate of FF 3 000 charged by its lawyer, Eco System annexed to its application an opinion from the Bâtonnier de l' Ordre des Avocats à la Cour de Paris (President of the Paris Bar Association) ° who is empowered under domestic law to determine lawyers' fees in the event of disputes with their clients ° according to which that rate is perfectly justified having regard both to the nature of the cases and the exceptional capabilities in that field of the lawyer concerned.

20 Peugeot contends that Eco System, in arriving at the sum which it has asked to Court to approve, has included an abnormally large number of chargeable hours and adopted an hourly rate which bears no relation to the reality of the market.

21 Regarding the number of chargeable hours, Peugeot states, first, that Eco System acted at all times in support of the defendant and thus often played a merely subsidiary role in those cases, and also that the cases were of a rather repetitive nature. Peugeot considers that, in those circumstances, it would be reasonable to adopt the figure of 125 chargeable hours rather than the 223 hours and 50 minutes claimed by Eco System.

22 Regarding the hourly rate charged, Peugeot contends, essentially, that the certificate from the Bâtonnier de l' Ordre des Avocats à la Cour de Paris cannot be regarded as a decision given by him in the exercise of his power to tax fees but merely ranks as an opinion. In any event, according to Peugeot, the First President of the Paris Cour d' Appel, before whom an appeal may be brought against decisions of the Bâtonnier in this field, has never agreed to a rate of more than FF 1 800, even in complex cases and for lawyers with an established reputation. Referring, finally, to the order of the Court of First Instance of 8 March 1995 in Case T-2/93 Air France v Commission (not published in the ECR) fixing the costs recoverable by the intervener TAT SA at FF 220 000, Peugeot expresses the view that the figure for costs given by Eco System is unrealistic both under domestic law and by virtue of the case-law of the Court of First Instance.

Findings of the Court

23 Pursuant to Article 91 of the Rules of Procedure, "the following shall be regarded as recoverable costs ... expenses necessarily incurred by parties for the purpose of the proceedings, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers".

24 It is settled law that, in the absence of Community provisions on scales of fees, the Community judicature must freely consider the circumstances of the case, having regard to the subject-matter and nature of the dispute, its importance from the point of view of Community law and of the difficulties of the case and the extent of the work which the pre-litigation procedure may have involved for the agents or lawyers working on the case and, for that purpose, it does not have to take account of any national scales of lawyers' fees or any agreement concluded between the party concerned and his agents or advisers (order of the Court of Justice of 26 November 1985 in Case 318/82 Leeuwarder Papierwarenfabriek v Commission [1985] ECR 3727 and most recently the order of the Court of First Instance of 7 June 1995 in Case T-36/92 (92) SFEI and Others v Commission, not published in the ECR, paragraphs 33 and 34).

25 In this case, the contested decisions were adopted following a complaint lodged with the Commission by Eco System on 19 April 1989 seeking a finding that Peugeot, in breach of Article 85(1) of the EEC Treaty, was hindering the pursuit by Eco System of its business as an authorized agent acting on behalf of French final consumers prepared to buy Peugeot vehicles through it.

26 In the grounds of its first decision, the Commission justified the adoption of interim measures by reference to its finding, on the basis of the facts established, that the economic interests of Eco System would suffer serious and irreparable damage if those measures were not adopted.

27 Some of the issues which arose in the cases in question prima facie raised serious problems of interpretation, particularly regarding the concept of intermediary authorized in writing within the meaning of Article 3(11) of Regulation No 123/85. In that respect, the dispute involved significant issues of Community competition law, since a concept of that kind is of essential importance in safeguarding parallel imports and opening up national markets in the context of a system for the distribution of motor vehicles covered by a block exemption.

28 However, whilst the interpretation of that term raised difficulties, in particular in relation to "an activity equivalent to that of a reseller", a concept introduced by the Commission in an interpretative communication, the contentious procedure did not occasion an excessive amount of work for Eco System' s lawyer. For one thing, the case-law concerning the proper interpretation of a provision such as Article 3(11) and the relationship between Community measures and interpretative measures was easily accessible. Secondly, the parties discussed the term authorized intermediary largely by reference to domestic law, in which the legal concept of authorized agent has been the subject of exhaustive study. Moreover, the ascertainment of the relevant facts cannot have required extensive work on the part of Eco System' s lawyer, since they were not particularly complex.

29 In any event, it must be noted that in this case, by contrast with Case T-2/93 Air France v Commission, to which Peugeot expressly refers in contesting the sum claimed by Eco System, there was an application for interim measures as well as two sets of main proceedings.

30 However, perusal of the files indicates that Eco System did not put forward any arguments of conclusive importance to the decision on the case which differed substantially from those in the Commission' s submissions. Moreover, most of Eco System' s arguments as to the proper interpretation of the term "authorized intermediary" were set out in Case T-23/90. In that connection, it appears to this Court that the cases in question were fairly repetitive. As the applicant itself concedes, the problems raised in Case T-9/92 had already been canvassed.

31 Accordingly, this Court considers that it will represent a reasonable assessment of the recoverable costs in Cases T-23/90 R, T-23/90 and T-9/92 if the total sum is fixed at FF 320 000.

32 Since the Court, in determining the recoverable expenses, has taken account of all the circumstances of the cases up to the time of its decision, it is unnecessary to make a separate order as to the costs incurred by the parties in relation to the present proceedings for the taxation of costs (see the order in Air France v Commission).

Operative part

On those grounds,

THE COURT OF FIRST INSTANCE (First Chamber, Extended Composition)

hereby orders:

The total amount of the costs to be reimbursed by Peugeot to Eco System is fixed at FF 320 000.

Luxembourg, 11 July 1995.