Avis juridique important

Order of the Court (Second Chamber) of 30 November 1994. - Syndicat Français de l'Express International, DHL International SA, Service CRIE SA and May Courier SARL v Commission of the European Communities. - Taxation of costs. - Case C-222/92 - DEPE. European Court reports 1994 Page I-05431

Summary Parties Grounds Operative part

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Procedure ° Costs ° Taxation ° Recoverable costs ° Concept ° Elements to be taken into consideration

(Rules of Procedure of the Court of Justice, Art. 73)

The Court is not empowered under Article 74 of the Rules of Procedure 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. Under Article 73 of the Rules of Procedure, expenses necessarily incurred by the parties for the purpose of the proceedings are to be regarded as recoverable costs; as follows in particular from Article 72 of the Rules, the term "proceedings" refers only to proceedings before the Court and does not include any prior stage.

Since Community law does not contain any provisions laying down a scale of fees, the Court 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 lawyers involved and the financial interest which the parties had in the proceedings.

In Case C-222/92 DEP,

Syndicat Français de l' Express International (SFEI), a trade association governed by French law whose head office is in Paris,

DHL International, a company incorporated under French law, whose registered office is in Roissy (France),

Service CRIE, a company incorporated under French law, whose registered office is in Paris,

May Courier, a company incorporated under French law, whose registered office is in Paris,

represented by E. Morgan de Rivery, of the Paris Bar, with an address for service in Luxembourg at the Chambers of A. Schmitt, 62 Avenue Guillaume,

applicants,

v

Commission of the European Communities, represented by M. Nolin, of the Legal Service, acting as Agent, with an address for service in Luxembourg at the office of G. Kremlis, Wagner Centre, Kirchberg,

defendant,

APPLICATION for the taxation of recoverable costs,

THE COURT (Second Chamber),

composed of: F.A. Schockweiler (Rapporteur), President of the Chamber, G.F. Mancini and G. Hirsch, Judges,

Advocate General: G. Tesauro,

Registrar: R. Grass,

after hearing the Opinion of the Advocate General,

makes the following

Order

1 By application lodged at the Court Registry on 16 May 1992, the Syndicat Français de l' Express International (SFEI), DHL International, Service CRIE and May Courier brought an action under the second paragraph of Article 173 of the EEC Treaty for a declaration that the Commission' s decision of 10 March 1992 to close the file opened following the complaint lodged by, inter alia, the SFEI against the French Republic and the Société Française de Messagerie Internationale, alleging infringement of Article 92 et seq. of the Treaty, was void.

2 By letter lodged at the Court Registry on 14 July 1992, the Commission indicated that it had decided to withdraw the contested decision and that it considered that the application had for that reason become devoid of purpose.

3 By supplementary document lodged at the Court Registry on 24 July 1992, the applicants stated their view that the case should not proceed to judgment and asked the Court to rule on the question of costs in accordance with Article 69(6) of the Rules of Procedure in the light of the circumstances of the case.

4 By letter lodged at the Court Registry on 14 August 1992, the Commission indicated that it had no observations on the document lodged by the applicants.

5 By order of 18 November 1992 in Case C-222/92 SFEI and Others v Commission (not published in the European Court Reports), the Court ruled that the case should not proceed to judgment and ordered the Commission to bear the costs.

6 The parties having failed to agree on the recoverable costs, the applicants, by document lodged at the Court Registry on 19 September 1994, requested the Court pursuant to Article 74 of the Rules of Procedure to fix the recoverable costs at BFR 9 402 130.

7 The costs claimed comprise two items, namely BFR 3 199 062 being costs of an economic study and BFR 6 203 668 being lawyers' fees and expenses.

The economic study had been prepared with a view to lodging the initial complaint with the Commission. The lawyers' fees and expenses concern services relating in part to the pre-contentious procedure and in part to the preparation of the application for annulment.

The sums claimed by the applicants for the economic study and some of the lawyers' fees and expenses represent 50% of the total costs billed, the other half being taken into account, according to the applicants, in the context of Case T-36/92 before the Court of First Instance.

8 In its written observations, lodged at the Court Registry on 21 October 1994, the Commission disputes that the fees and expenses relating to the pre-contentious proceedings can be considered to be recoverable. If the costs relating to the preparation of the application were taken into account, only BFR 760 403.50 could be accepted. Neither the purpose and nature of the proceedings, nor their significance from the point of view of Community law, nor the difficulties presented by the case and the amount of work involved, nor the financial interest at stake justifies that amount, particularly since the applicants have failed to provide details of the services provided and the amount of work carried out. The Commission accordingly proposes that the recoverable costs should be fixed at a maximum of BFR 300 000.

9 The Commission annexed to its written observations a letter sent by the applicants' lawyer concerning the settling of costs. The Court has not taken that letter into account since it is confidential.

10 The Court has consistently held that it is not empowered under Article 74 of the Rules of Procedure 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 (see in particular the order of 4 February 1993 in Case C-191/86-Costs Tokyo Electric v Council, not published in the European Court Reports, paragraph 8).

14 The applicants' requests must accordingly be rejected to the extent that they seek to have fees and expenses, including experts' fees, relating to the pre-contentious stage allowed as recoverable costs.

15 So far as concerns the expenses necessarily incurred by the parties for the purpose of the proceedings, Community law does not contain any provisions laying down a scale of fees. The Court must therefore 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 (see in particular the order in Tokyo Electric v Council, cited above, at paragraph 8).

16 In the light of all those factors relating to assessment, fixing the total recoverable costs at BFR 600 000 will represent a fair assessment.

On those grounds,

THE COURT (Second Chamber)

hereby orders:

The total costs to be reimbursed by the Commission to the applicant are fixed at BFR 600 000.

Luxembourg, 30 November 1994.