CELEX: 62015CO0660
Language: en
Date: 2018-09-26 00:00:00
Title: Order of the Court (First Chamber) of 26 September 2018.#Viasat Broadcasting UK Ltd v TV2/Danmark A/S.#Taxation of costs.#Case C-660/15 P-DEP.

ORDER OF THE COURT (First Chamber)
26 September 2018(*)
(Taxation of costs)
In Case C‑660/15 P-DEP,
APPLICATION for taxation of recoverable costs under Article 145 of the Rules of Procedure of the Court, brought on 26 February 2018,

Viasat Broadcasting UK Ltd, established in West Drayton (United Kingdom), represented by M. Honoré and S. Kalsmose-Hjelmborg, advokater,
applicant,
v

TV2/Danmark A/S, established in Odense C (Denmark), represented by O. Koktvedgaard, advokat,
defendant,
THE COURT (First Chamber),
composed of R. Silva de Lapuerta (Rapporteur), President of the Chamber, C.G. Fernlund, A. Arabadjiev, S. Rodin and E. Regan, Judges,
Advocate General: N. Wahl,
Registrar: A. Calot Escobar,
having regard to the written procedure,
after hearing the Advocate General, 
makes the following

Order

1        The subject matter of this action is the taxation of the costs incurred by Viasat Broadcasting UK Ltd (‘Viasat’) in Case C‑660/15 P.

2        By its appeal, brought on 8 December 2015, Viasat sought to have set aside the judgment of the General Court of the European Union of 24 September 2015, Viasat Broadcasting UK v Commission (T‑125/12, EU:T:2015:687) (‘the judgment under appeal’), by which that court dismissed its action for annulment of Commission Decision 2011/839/EU of 20 April 2011 on the measures implemented by Denmark (C-2/03) for TV2/Danmark (OJ 2011 L 340, p. 1) (‘the contested decision’), by which the European Commission, while recognising that certain measures adopted by the Kingdom of Denmark in favour of TV2/Danmark A/S (‘TV2’)were of a State aid nature, decided that those measures were to be regarded as compatible with the internal market on the basis of Article 106(2) TFEU.

3        In its judgment of 8 March 2017, Viasat Broadcasting UK v Commission (C‑660/15 P, EU:C:2017:178), the Court dismissed that appeal and ordered Viasat to pay the Commission’s and TV2’s costs.

4        As Viasat and TV2 failed to reach agreement as to the recoverable costs relating to those proceedings, Viasat, acting pursuant to Article 145 of the Rules of Procedure of the Court of Justice, requested the Court of Justice to give a decision as to costs.
 Forms of order sought

5        Viasat requests the Court to fix at EUR 15 000 the total amount of the costs to be reimbursed to TV2 by Viasat by way of the appeal proceedings before the Court and to order TV2 to pay the costs incurred in the present proceedings of taxation of costs.

6        TV2 requests the Court to fix at EUR 78 581 the total amount of the costs to be reimbursed to TV2 by Viasat by way of the appeal proceedings before the Court and to order Viasat to pay EUR 1 500 representing costs incurred in the present proceedings of taxation of costs.
 Arguments of the parties

7        Viasat observes that, by letter of 12 October 2017, TV2 requested Viasat to repay the sum of 585 325 Danish kroner (DKK) (approximately EUR 78 657) by way of the fees which it has paid to its legal advisers for the purposes of the proceedings before the Court. TV2 stated in that regard that the total number of hours worked was 200 hours, of which 188.83 hours was spent on drafting the response. 

8        Viasat maintains that a total of 200 working hours goes far beyond the time which can be regarded as objectively necessary for the purposes of the tasks performed by TV2’s lawyers, taking account of the nature of the dispute before the Court and the length of the response to the appeal lodged by TV2. In its view, it is therefore necessary to reduce significantly the amount requested.

9        Viasat takes the view that the appeal proceedings were, by their nature, limited in scope, and that the main lawyer representing TV2 already had perfect knowledge of the case, since he had represented TV2 before the General Court. Thus, TV2’s lawyers were not faced with any particular difficulties in relation to the appeal proceedings.

10      In addition, Viasat claims that the procedural steps which required the participation of TV2’s lawyers in the course of the proceedings before the Court were confined to the submission of a response to the appeal introduced by Viasat. As to the nature and length of that response, Viasat submits that the total number of hours that TV2 claims to have spent on drafting that document, namely 188.83 hours, appears inappropriate for a 12-page response, 8 of which concerned the defence of TV2’s position. In addition, the new elements of the legal analysis presented by TV2 have been extremely limited, as TV2, in essence, has agreed with the findings of the General Court.

11      By way of comparison, Viasat states that the fees which it was charged by its own legal representatives amounted to DKK 404 243 (approximately EUR 54 323). Viasat, as the appellant, found itself in a more difficult position as it had to set out the reasons for which, in its view, the General Court had erred in law. Accordingly, its written observations consisted of 35 pages to which four annexes of 82 additional pages were attached.

12      TV2 responds that the amount of costs which it requests is adequate without going beyond what is necessary for the purpose of the proceedings before the Court. The amount of time spent by its legal advisers is justified due to the importance and legal complexity of the points of law raised by Viasat in the case as well as TV2’s major economic interest in the proceedings.

13      The case has involved points of law which had not been previously decided by the Court and, more particularly, whether the judgment of 24 July 2003, Altmark Trans and Regierungspräsidium Magdeburg (C‑280/00, EU:C:2003:415), had an impact on the Commission’s assessment of whether the measures at issue complied with Article 106(2) TFEU. In view of the arguments put forward by Viasat, that question has required a rather complex analysis of the wording, structure and logic of Article 106(2) and Article 107(1) TFEU. That judgment, the requirement of transparency deriving from the rules on freedom of movement and the relevant case-law has also been the subject of such an analysis.

14      Moreover, according to TV2, contrary to what Viasat claims, TV2 was not confined mainly to approving the findings of the General Court, as can be shown in particular by the observations presented in paragraphs 41 and 42 of the response, relating to the profitability of TV2, those presented in paragraphs 43 to 47 of that response, relating to the transparency requirement arising from the rules on freedom of movement and paragraph 3 of Viasat’s application for leave to lodge a reply.

15      However, it is above all the major economic importance of that case for TV2 which justifies that the legal advisers’ number of working hours reached 200 hours, at the average hourly rate of DKK 2 927 (approximately EUR 393). At the very least, it would justify a workload and legal fees of a scale corresponding to what Viasat would have thought necessary for the purposes of the appeal proceedings.

16      TV2 shows, in that regard, that the case started with an application for annulment of the contested decision, a decision whereby the Commission had declared State aid measures of DKK 4.9 billion (approximately EUR 657 832 910), received by TV2 in the period 1995-2002, to be compatible with the internal market. It indicates that, if the Court had found in favour of Viasat, the Kingdom of Denmark would have been obliged to recover that amount, plus interest, from TV2, which would have, without any doubt, rendered TV2 insolvent.

17      TV2 notes that, as a result, first of all, partners and/or experienced lawyers spent 6.5 hours of work on the appeal and its annexes, next, that those lawyers and other lawyers spent 4.67 hours on the examination of the Commission’s response and on Viasat’s request to lodge a reply and on correspondence with the Court and, finally, that those partners and/or experienced lawyers, other lawyers and staff and trainees spent a total of 188.83 hours on drafting the response, including further analysis of the appeal, the judgment under appeal and the relevant legal rules.
 Findings of the Court

18      Under Article 144(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 recoverable costs.

19      It is apparent from the wording of that provision that the remuneration of a lawyer is one of the expenses necessarily incurred within the meaning of that provision (order of 15 October 2015, Council v Ningbo Yonghong Fasteners, C‑601/12 P‑DEP, not published, EU:C:2015:726, paragraph 12 and the case-law cited). 

20      It also follows from that wording that recoverable costs are limited, first, to expenses incurred for the purposes of the proceedings before the Court and, second, to those which are essential for that purpose (order of 3 December 2014, Qwatchme v Kastenholz, C-435/13 P-DEP, not published, EU:C:2014:2421, paragraph 9 and the case-law cited).

21      Furthermore, it should be borne in mind 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 (order of 15 October 2015, Council v Ningbo Yonghong Fasteners, C‑601/12 P-DEP, not published, EU:C:2015:726, paragraph 15). 

22      However, 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 purpose and nature of the proceedings, their significance from the point of view of EU law, the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the economic interests which the parties had in the proceedings (order of 9 January 2008, Emilio Pucci v El Corte Inglés, C‑104/05 P-DEP, not published, EU:C:2008:1, paragraph 10).

23      The amount of the recoverable costs must be assessed in the light of those criteria.

24      In the first place, with regard to the purpose and the nature of the proceedings, it must be recalled that the dispute before the Court was an appeal. Such proceedings, by their very nature, are limited to questions of law and are not intended, except in the case of distortion of the facts, to establish or assess the facts of the dispute.

25      In the second place, as regards the significance of the proceedings from the point of view EU law and the difficulties presented by the case, TV2 was required, in the context of the appeal, to answer two grounds of appeal.

26      First, by its first ground of appeal, Viasat claimed that the General Court had erred in law in finding that the Commission was not required, in its assessment under Article 106(2) TFEU, to take the second and fourth Altmark conditions into consideration in order to ascertain whether compliance with those conditions had obstructed the performance by TV2 of the task which had been assigned to it. Second, the second ground of appeal alleged a possible infringement of the obligation to state reasons for the judgments, laid down in Article 296 TFEU.

27      As a result, the response presented by TV2 involved the examination of a limited number of legal issues. TV2 confined itself, principally, to supporting the judgment under appeal, by referring to various points of it.

28      Admittedly, the question of law raised by the first ground of appeal revealed the existence of a legal controversy whose solution was not immediately clear, which, as TV2 argues in its observations, required a rather complex analysis of the wording, structure and logic of Article 106(2) and Article 107(1) TFEU.

29      However, it must be observed that that question of law was clearly delimited and that it had already been analysed in depth at first instance, so that the arguments put forward in the appeal to a large extent reiterated those which had been submitted to the General Court (see, to that effect, order of 21 April 2005, Commission v Laboratoires Servier, C‑156/03 P-DEP, not published, EU:C:2005:243, paragraph 24).

30      Moreover, it is precisely TV2 which, in paragraphs 14 and 15 of the response to the appeal, rebutted the importance of such a dispute, stating that the appeal brought by Viasat did not raise any question of principle and that, in fact, the response to Viasat’s questions was very simple.

31      In the third place, as regards the economic interests which the dispute has presented for the parties, it is indisputable that the appeal was of significant economic importance for TV2, since, by the judgment under appeal, the General Court had dismissed the action brought by Viasat for annulment of the contested decision by which the Commission, while recognising the State aid nature of various measures taken by the Kingdom of Denmark for the benefit of TV2, had decided that they should be regarded as being compatible with the internal market on the basis of Article 106(2) TFEU.

32      However, as is clear from the case-law set out in paragraph 22 of the present order, in order to fix the recoverable amounts, the Court must make an unfettered assessment of the facts of the case, taking into account a number of factors, and not only the economic interests at stake.

33      In the fourth place, as regards the amount of work which the contentious proceedings generated for the representatives or for the lawyers who intervened, it should be recalled that the ability of the Courts of the European Union to assess the value of the work carried out is dependent on the accuracy of the information provided (order of 11 January 2008, CEF and CEF Holdings v Nederlandse Federatieve Vereniging voor de Groothandel op Elektrotechnisch and Technische Unie, C‑105/04 P-DEP and C‑113/04 P-DEP, not published, EU:C:2008:8, paragraph 39).

34      In the present case, TV2 merely states that the amount of the costs claimed is appropriate and does not exceed that which is essential, without, however, providing a detailed description of the specific services rendered by its legal advisers that would justify the 200 hours of work incurred, for which it claims the sum of DKK 585 325 (approximately EUR 78 657). 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 (see, to that effect, order of 20 May 2010, Tetra Laval v Commission, C‑12/03 P-DEP and C‑13/03 P-DEP, not published, EU:C:2010:280, paragraph 63). 

35      As regards the response submitted by TV2, without calling into question the workload which was necessary to draft that response, it should be noted that the lawyer for TV2 already had a thorough knowledge of the case since he had represented TV2, acting as intervener, in the proceedings at first instance. 

36      Finally, as regards Viasat and TV2’s  applications with regard to the costs relating to the present taxation proceedings, it should be borne in mind that, when fixing the costs to be recovered, the Court takes account of all the circumstances of the case up to the date of the taxation of costs order, including the costs necessarily incurred in connection with the taxation of costs proceedings (order of 3 December 2014, Qwatchme v Kastenholz, C‑435/13 P‑DEP, not published, EU:C:2014:2421, paragraph 10 and the case-law cited).

37      In view of all of the foregoing considerations, the costs recoverable by TV2 from Viasat may be assessed on an equitable basis by fixing their amount at EUR 30 000.
On those grounds, the Court (First Chamber) hereby orders:

The total amount of the costs to be reimbursed by Viasat Broadcasting Ltd to TV2/Danmark A/S is fixed at EUR 30 000.

Luxembourg, 26 September 2018.

A. Calot Escobar
 
R. Silva de Lapuerta

Registrar
 
President of the First Chamber

*      Language of the case: English.