T-78/89

ORDER OF 9. 6. 1993 - CASE T-78/89 DEP

1. The parties' entitlement to reimbursement Since Community law does not contain of costs has its legal basis in the order fix- any provisions laying down a scale of fees, ing the amount thereof. It is therefore not the Court must freely consider all the open to a party to claim, as recoverable facts of the case, taking into account the costs, interest on the sums paid by it to its purpose and nature of the proceedings lawyers prior to that order. and 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 lawyer involved and the financial interest which the parties had in the pro- ceedings. 2. The Community judicature is not empowered to tax the fees payable by the parties to their own lawyers but may determine the amount of those fees which 3. In principle, only the remuneration of a may be recovered from the party ordered single lawyer may be regarded as falling to pay the costs. It follows that the Court within the concept of 'expenses necessar- is not obliged to take account of any ily incurred' within the meaning of Arti- national scales of lawyers' fees or any cle 91(b) of the Rules of Procedure of the agreement concluded in that regard. Court of First Instance.

O R D E R O F T H E C O U R T O F F I R S T I N S T A N C E (First C h a m b e r ) 9 J u n e 1993 *

In Case T-78/89 D E P ,

PPG Industries Glass SpA, formerly P P G Vernante Pennitalia SpA, a c o m p a n y incorporated under Italian law, having its registered office in G e n o a (Italy), repre- sented b y Gianni Manca and A n t o n i o J. Manca Graziadéi, of the R o m e Bar, and b y Michel Waelbroeck and Alexandre Vandencasteele, of the Brussels Bar, with an address for service in L u x e m b o u r g at the C h a m b e r s of Ernest A r e n d t , 8-10 R u e Mathias H a r d t ,

defendant,

APPLICATION for taxation of costs pursuant to the judgment of the Court of First Instance of 10 March 1992,

THE C O U R T O F FIRST INSTANCE O F THE EUROPEAN COMMUNITIES (First Chamber),

composed of: H. Kirschner, President, C. W. Bellamy, R. Schintgcn, R. García- Valdecasas and K. Lenaerts, Judges,

Registrar: H. Jung,

makes the following

3 By order of 4 October 1989, the Court of Justice granted the United Kingdom leave to intervene in the three case 75/89, 97/89 and 98/89. The Court of Justice did not impose any limit upon such intervention.

4 Before the written procedure was completed, the Court of Justice, by orders of 15 November 1989 made pursuant to the first paragraph of Article 3 of the Council Decision of 24 October 1988 establishing a Court of First Instance of the Euro- pean Communities, referred the three cases to the Court of First Instance, where they were registered under serial numbers T-68/89, T-77/89 and T-78/89. The writ- ten procedure thereafter took place before the Court of First Instance.

5 By a document lodged at the Registry of the Court of First Instance on 4 February 1990, the intervener submitted identical written observations in each of the three cases.

6 After hearing the Report of the Judge-Rapporteur, the Court of First instance, by orders of 7 May 1991, decided to adopt measures of inquiry and of organization of procedure and to entrust the implementation of those measures to the Judge- Rapporteur. The Judge-Rapporteur presided over an informal meeting with the parties on 29 and 30 May 1991.

7 At that meeting, the Judge-Rapporteur explained to the parties that, in order to facilitate consideration of the documents before the Court and the course of the

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ORDER OF 9. 6. 1993 — CASE T-78/89 DEP

1 1 The parties agreed to the possible joinder of the three cases for the purposes of the oral procedure.

12 Following that meeting, the parties produced a full set of documents and submit­ ted their observations on the draft Reports for the Hearing. At the request of the Judge-Rapporteur, the Commission supplied a list, received at the Registry of the Court of First Instance on 14 June 1991, indicating the documents which in its view contained an express or implied reference to the applicant. The Judge-Rapporteur drew up a definitive Report for the Hearing in respect of each case and prepared a common file containing the documents — including, where appropriate, transcrip­ tions and translations agreed between the parties — on the basis of which the par­ ties agreed to proceed to the hearing of oral argument.

π By order of 4 June 1991, the Court of First Instance joined Cases T-68/89, T-77/89 and T-78/89 for the purposes of the oral procedure.

1 4 The representatives of the applicant and of the other parties presented oral argu­ ment and replied to questions put by the Court of First Instance at the hearing on 12 to 15 November 1991.

19 By letter of 18 May 1992 to the applicant's lawyer, the C o m m i s s i o n ' s agent informed the latter that in the C o m m i s s i o n ' s view the sum demanded was exces­ sive. T h e C o m m i s s i o n considered, first, that the costs occasioned bv the adminis­ trative p r o c e d u r e and the setting up of a bank guarantee did not constitute recov­ erable costs and, second, that the a m o u n t of the costs claimed exceeded the expenses necessarily incurred for the purposes of the proceedings. Consequently, the C o m m i s s i o n stated that it was willing t o pay to the applicant, by way of recov­ erable costs, the sum of L I T 58 500 000, together with a sum intended to cover travelling and subsistence expenses, as well as additional expenditure attributable t o the instruction of a lawyer, such sum to be determined on the basis of a detailed b r e a k d o w n of those expenses.

20 By letter of 16 N o v e m b e r 1992, the applicant's lawyers informed the C o m m i s s i o n that its offer was unacceptable and that they had consequently decided to request the C o u r t of First Instance to fix the recoverable costs in the sum of L I T 664 440 381, together with interest at the rate of 1 0 % per a n n u m from 10 March 1992, the date of the judgment.

21 It was in those circumstances that, by application lodged at the Registry of the C o u r t of First Instance on 19 N o v e m b e r 1992, the applicant sought an o r d e r for a taxation of the costs, requesting the C o u r t of First Instance to fix them in the sum

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25 The applicant maintains, first, that interest on the sums paid by it to its lawyers during the proceedings is recoverable because it is attributable to the proceedings. It seeks in that regard LIT 71 855 302.

26 It states, second, that default interest at the rate of 10% is due to it on the whole of the sum claimed, from the date of delivery of the judgment of 10 March 1992.

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PPG INDUSTRIES GLASS ν COMMISSION

27 The Commission's reply is that neither interest on the sums paid to the lawyers prior to delivery of the judgment, nor default interest on the whole of those sums, including the interest accrued thereon, at the rate of 10% per annum from the date of judgment, are recoverable.

28 The Commission cites in support of its argument the order made by the Court of Justice on 18 April 1975 in Case 6/72 Europemballage Corporation and Continen­ tal Can ν Commission [1975] ECR 495, in which it was held that since an appli­ cant's entitlement to reimbursement of costs has its legal basis in the order fixing the amount thereof, a claim for default interest from the date of the judgment must be rejected.

ORDER OF 9. 6. 1993 — CASE T-78/89 DEP

— the Commission's errors, omissions and uncertainties regarding the facts reca- pitulated in the decision (see paragraphs 200, 202, 223, 260, 262 and 271 of the judgment);

— the unsatisfactory method used by the Commission to establish the facts, and in particular the deliberate omission or obliteration by it of certain passages in the documents (see paragraphs 90 and 91 of the judgment).

31 It observes that those various factors prompted the Judge-Rapporteur to undertake measures of inquiry and of organization of procedure which themselves involved its lawyers in additional work.

32 Finally, the applicant points out that the financial amount at stake in the dispute was considerable, since the fine imposed on it amounted to ECU 1 700 000.

33 Moreover, the applicant justifies its instruction of two separate law firms, one in Rome and the other in Brussels, by the fact, first, that it was established in Italy and, second, that the case required the involvement of a practice specializing in Community law.

— the fact that the lawyer who assisted the Commission in the three flat glass cases did so for a fee representing, in relation to those three cases, only a fraction of the total sum charged by the applicant's lawyer.

35 The Commission concludes that the applicant has not put forward any argument justifying such a substantial sum.

36 It should be noted, first of all, that the Community judicature is '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 con­ cluded 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 Com­ munity 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 Papierwaren/abriefe ν Commission [1985] ECR 3727)' (order of the Court of First Instance in Joined Cases T-18/89 and T-24/89 [1992] ECR II-153, paragraph 13).

37 The Court of First Instance finds that the applicant is seeking to recover, by way of recoverable costs excluding interest, LIT 147 901 821 for the drafting of the

41 For that reason, the Court of First Instance considers it appropriate in principle to reduce the costs which the applicant is seeking to recover, subject to an examina­ tion of the merits of that amount from the standpoint of the criteria referred to in paragraph 36.

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PPG INDUSTRIES GLASS ν COMMISSION

42 As regards the significance of the case from the point of view of C o m m u n i t y law, it should be noted that the question of a collective abuse of a dominant position was a novel one, and that it thus necessitated significant investigation.

43 As regards the difficulty of the case and the volume of w o r k which the contested proceedings may have presented for the applicant's lawyers, it should be observed that the complexity of the facts and the disorder and lack of clarity of the Com­ mission's file have generated a substantial volume of difficult work for the appli­ cant's lawyers, who have had to take part in a meeting organized by the Judge- Rapporteur in order to clarify the situation.

44 Finally, as regards the financial interests which the parties had in the dispute, it should be noted that the fine imposed on the applicant (ECU 1 700 000) was sub­ stantial.

THE COURT O F FIRST INSTANCE (First Chamber)

hereby orders:

The total amount of the costs to be reimbursed by the defendant to the appli- cant is fixed in the sum of LIT 300 000 000.

Luxembourg, 9 June 1993.

H. Jung H. Kirschner

Registrar President