GC, 1st chamber, October 16, 2017, No T-353/15 DEP

THE GENERAL COURT (First Chamber)

1 By application lodged at the Court Registry on 26 June 2015 and registered as Case T 353/15, NeXovation Inc. sought annulment in part of Commission Decision (EU) 2016/151 final of 1 October 2014 on State aid SA.31550 (2012/C) (ex 2012/NN) implemented by the Federal Republic of Germany for the Nürburgring complex (OJ 2016 L 34, p. 1).

2 In that case, Nürburgring GmbH, Motorsport Resort Nürburgring GmbH and Congress- und Motorsport Hotel Nürburgring GmbH ('the aid beneficiaries'), owners of the Nürburgring complex, became insolvent in the course of the formal investigation procedure. A tendering procedure was subsequently organised, resulting in the sale of the aid beneficiaries' assets.

3 By its action, NeXovation disputes the claim that the sale of the aid beneficiaries' assets does not constitute State aid, that that sale does not entail economic continuity between the aid beneficiaries, on the one hand, and the new owner of the assets, on the other, and that any potential recovery of State aid will not concern the buyer of the assets sold in the context of the tendering procedure.

4 By document lodged at the Court Registry on 3 November 2015, the aid beneficiaries applied for leave to intervene in the present case in support of the forms of order sought by the Commission.

5 By document lodged on 16 December 2015, NeXovation submitted its observations on the application for leave to intervene.

6 By letters of 15 December 2015 and 11 April 2016, NeXovation applied, pursuant to Article 144(2) of the Rules of Procedure of the General Court of the European Union, for confidential treatment in respect of certain annexes to its application and reply.

7 By order of the President of the former Eighth Chamber of the General Court of 18 April 2016, the aid beneficiaries were granted leave to intervene in the proceedings in support of the form of order sought by the Commission. The decision on the merits of NeXovation's applications for confidential treatment was reserved.

8 By letter lodged at the Court Registry on 3 May 2016, the aid beneficiaries informed the Court, in accordance with Article 144(9) of the Rules of Procedure of the General Court, that they were withdrawing their intervention.

9 By letter of 12 May 2016, the Court fixed a period within which the parties were to submit their observations on the withdrawal of the application for leave to intervene.

10 By document lodged on 25 May 2016, NeXovation submitted its observations on the withdrawal of the application for leave to intervene. It claimed, inter alia, that the aid beneficiaries should be ordered to pay the costs relating to the intervention.

11 By order of the President of the former Eighth Chamber of the General Court of 6 July 2016, the aid beneficiaries were removed from the Court register as interveners and ordered to bear their own costs and to pay the costs incurred by the other parties in relation to their intervention.

12 By letter of 3 August 2016, NeXovation requested the aid beneficiaries to pay EUR 65 828.09, corresponding to lawyers' fees (EUR 60 850) and its lawyers' travel expenses (EUR 4 977.09).

13 By letter of 17 August 2016, the aid beneficiaries offered to pay NeXovation the sum of EUR 3 000 in full and final settlement.

14 As the parties were unable to agree on the amount of the costs to be reimbursed, the aid beneficiaries submitted, by document lodged at the Court Registry on 29 September 2016, an application for taxation of costs pursuant to Article 170 of the Rules of Procedure of the General Court.

15 By document lodged at the Court Registry on 29 November 2016, NeXovation submitted its observations on that application.

16 The aid beneficiaries claim that the Court should:

- fix the amount of costs they are required to pay to NeXovation in order to reimburse the costs incurred in connection with their intervention in Case T 353/15, and

- when determining the recoverable costs, take into account the costs incurred by them and NeXovation in connection with the proceedings for taxation of costs.

17 NeXovation contends that the Court should:

- fix the amount of the costs to be paid to it by the aid beneficiaries by way of reimbursement of the costs incurred in connection with their intervention at EUR 65 827.09 (plus VAT), and

- determine the costs incurred in connection with the taxation proceeding and order the aid beneficiaries to pay them.

Law

The costs incurred in connection with the intervention

18 Under Article 170(1) to (3) of the Rules of Procedure of the General Court, if there is a dispute concerning the costs to be recovered, the Court is to give its decision by way of an order from which no appeal shall lie, on application by the party concerned and after giving the party against whom the application is made an opportunity to submit his observations.

19 Under Article 140(b) of the Rules of Procedure of the General Court, '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. It follows from that provision that recoverable costs are limited to those incurred for the purposes of proceedings before the Court of Justice and the General Court and those which are necessary for those purposes (see order of 25 March 2014, Marcuccio v Commission, T 126/11 P-DEP, not published, EU:T:2014:171, paragraph 25 and the case-law cited).

20 The EU judicature is not empowered to tax the fees payable by the parties to their own lawyers. It may determine the amount of those fees which may be recovered from the party ordered to pay the costs (see order of 12 January 2016, ANGIPAXI, T 368/13 DEP, not published, EU:T:2016:9, paragraph 12 and the case-law cited).

21 In the absence of provisions of European Union 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 European Union law as well as the difficulties presented by the case, the amount of work generated by the proceedings for the agents and advisers involved and the financial interests which the parties had in the proceedings (orders of 25 January 2007, Royal County of Berkshire Polo Club v OHIM, T 214/04 DEP, not published, EU:T:2007:16, paragraph 14, and of 25 March 2014, Marcuccio v Commission, T 126/11 P-DEP, not published, EU:T:2014:171, paragraph 26).

22 It is in the light of those considerations that the amount of recoverable costs must be assessed in the present case, bearing in mind that the aid beneficiaries were ordered to pay the costs incurred by NeXovation only in relation to their intervention (order of 29 March 2007, First Data and Others v Commission, T 28/02 DEP, not published, EU:T:2007:101, paragraph 32).

The purpose and nature of the proceedings, their significance from the point of view of European Union law and the difficulties presented by the case

23 In the first place, the case has a certain significance from the point of view of European Union law, in so far as it concerns an action for annulment of a decision finding that the purchaser of the assets of beneficiaries of State aid that was unlawful and incompatible with the internal market was not affected by any recovery of that aid and that the sale of the aid beneficiaries' assets did not constitute aid for the benefit of the purchaser.

The financial interests which the parties had in the proceedings

24 In the second place, it should be recognised that a significant financial interest was at stake in the case for NeXovation, as it submitted a bid of EUR 150 million, which was not successful, in the tendering procedure for the sale of the aid beneficiaries' assets and the annulment of the contested decision might confer an advantage on it as a candidate for the purchase of Nürburgring if the annulment of the decision resulted in Nürburgring being resold.

The amount of work generated by the intervention for NeXovation's representatives

25 In the third place, as regards the amount of work generated by the proceedings for NeXovation's representatives, NeXovation seeks reimbursement of EUR 65 827.09 in respect of the costs incurred as a result of the aid beneficiaries' intervention. More specifically, those costs can be broken down as follows:

- first, EUR 35 040 lawyers' fees, corresponding to 102.4 hours' work, in connection with the application for leave to intervene and, in particular, NeXovation's observations on that application;

- second, EUR 13 820 lawyers' fees, corresponding to 41.9 hours' work, in connection with NeXovation's applications for confidential treatment, which may be broken down as follows:

- EUR 6 150 lawyers' fees, corresponding to 19.5 hours' work, in connection with its application for confidential treatment in respect of the application;

- EUR 2 580 lawyers' fees, corresponding to 7.6 hours' work, in connection with a possible application for confidential treatment in respect of the defence;

- EUR 5 090 lawyers' fees, corresponding to 14.8 hours' work, principally in connection with its application for confidential treatment in respect of the reply;

- third, EUR 3 200 lawyers' fees, corresponding to 8 hours' work, and EUR 4 977.09 in respect of its lawyers' travel expenses in connection with explaining the intervention to NeXovation; and

- fourth, EUR 8 790 lawyers' fees, corresponding to 26.6 hours' work, in connection with the withdrawal of the application for leave to intervene and, in particular, NeXovation's observations on the withdrawal of that application.

26 The aid beneficiaries contend that most of the costs which NeXovation seeks to have reimbursed cannot be regarded as recoverable as they cannot be classified as expenses necessarily incurred for the purposes of the proceedings in connection with the intervention, such as, inter alia, the lawyers' fees relating to the applications for confidential treatment and the lawyers' travel expenses. The aid beneficiaries also maintain that the number of hours' work claimed is clearly excessive.

27 As regards the scale of the work involved in the proceedings before the Court, the latter must take account of the total number of hours' work that may be deemed objectively necessary for the purpose of those proceedings (see order of 20 November 2002, Spruyt v Commission, T 171/00 DEP, EU:T:2002:277, paragraph 29 and the case-law cited).

28 It should also be borne in mind that the ability of the EU judicature to assess the value of the work carried out depends on the accuracy of the information provided (see order of 13 January 2006, IPK-München v Commission, T 331/94 DEP, EU:T:2006:11, paragraph 46 and the case-law cited). Nonetheless, the EU judicature is not bound by the statement of costs lodged by the party seeking to recover costs (order of 14 July 2015, Ntouvas v ECDC, T 223/12 DEP, not published, EU:T:2015:570, paragraph 20).

29 In the present case, it should be noted that, first of all, NeXovation submitted its observations on the aid beneficiaries' application for leave to intervene, in which it set out its objections to the aid beneficiaries' intervention. Next, it lodged applications for the confidential treatment of certain annexes to its application and reply vis-à-vis the aid beneficiaries. NeXovation did not submit an application for confidential treatment in respect of the defence. Lastly, it submitted observations on the withdrawal of the aid beneficiaries, in which it did not object to the withdrawal.

30 The aid beneficiaries withdrew their intervention less than two weeks after being granted leave to intervene, before lodging any objections to NeXovation's applications for confidential treatment and before lodging a statement in intervention. Accordingly, NeXovation did not have to submit observations either on any objections to its applications for confidential treatment or on a statement in intervention by the aid beneficiaries.

31 As a consequence, it is clear that the most important procedural document, in terms of its content, lodged by NeXovation in connection with the intervention was its observations on the aid beneficiaries' application for leave to intervene. It should be noted in that regard that NeXovation itself stated that the proceedings relating to the intervention and the rest of the dispute cannot be separated, that in order to understand the application for leave to intervene, it is necessary to have detailed knowledge of the case and that the intervention could not be dealt with without a certain understanding of the original case as they are clearly linked. It follows that NeXovation's advisers already had a thorough knowledge of the case after the main action was brought.

32 With regard, first, to the sum claimed in respect of lawyers' fees in connection with the application for leave to intervene, in the light of the nature of the case and the content of the procedural documents lodged by NeXovation following the aid beneficiaries' intervention, the Court considers that the time spent, namely 102.4 hours, and the cost incurred, namely EUR 35 040, exceed what may be regarded as necessary for the purposes of the intervention, for the reasons set out in paragraph 31 above.

33 Accordingly, the Court considers that the fees of NeXovation's lawyers in connection with the application for leave to intervene can be assessed on an equitable basis at EUR 12 000, that is, 30 hours' work at an hourly rate of EUR 400, which is the hourly rate charged by NeXovation's most experienced lawyers.

34 With regard, second, to the sum claimed in respect of lawyers' fees in connection with NeXovation's applications for confidential treatment, in the light of the nature of the case and the content of the procedural documents lodged by NeXovation following the aid beneficiaries' intervention, the Court considers that the time spent, namely 41.9 hours, and the costs incurred, namely EUR 13 820, exceed what may be regarded as necessary for the purposes of the intervention.

35 NeXovation requested that certain annexes to its application and reply be treated as confidential in their entirety. Less time was therefore needed to prepare non-confidential versions of the application, the reply and other annexes thereto as those versions were the same as the confidential versions. Less time was also needed to prepare the applications for confidential treatment as they contained, respectively, eight paragraphs with regard to the application, and just one paragraph with regard to the reply.

36 Accordingly, the Court considers that the fees of NeXovation's lawyers in connection with NeXovation's applications for confidential treatment can be assessed on an equitable basis at EUR 4 000, that is 10 hours' work at an hourly rate of EUR 400.

37 With regard, third, to the sum claimed by NeXovation in respect of its lawyers' fees in connection with explaining the intervention to NeXovation, in the light of the nature of the case and the content of the procedural documents lodged by NeXovation following the aid beneficiaries' intervention, the Court considers that the time spent, namely 8 hours, and the costs incurred, namely EUR 3 200, exceed what may be regarded as necessary for the purposes of the intervention.

38 Accordingly, the Court considers that the fees of NeXovation's lawyers in connection with explaining the intervention to NeXovation can be assessed on an equitable basis at EUR 800, that is, 2 hours' work at an hourly rate of EUR 400.

39 With regard to the sum claimed by NeXovation in respect of its lawyers' travel expenses in connection with explaining the intervention to NeXovation, the Court does not consider that travel by its lawyers to the United States, where NeXovation is located, in order to explain the intervention to NeXovation was essential, as that explanation could have been given by telephone. The whole of the claim for reimbursement by the aid beneficiaries of EUR 4 977.09 in respect of travel expenses in connection with the costs incurred in explaining the intervention to NeXovation must therefore be rejected.

40 As regards, fourth, the sum claimed in respect of lawyers' fees in connection with the withdrawal of the application for leave to intervene, in the light of the nature of the case and the content of the procedural documents lodged by NeXovation following the aid beneficiaries' intervention, the Court considers that the time spent, namely 26.6 hours, and the costs incurred, namely EUR 8 790, exceed what may be regarded as necessary for the purposes of the intervention.

41 NeXovation's observations on the aid beneficiaries' withdrawal amounted to six paragraphs and did not contain any objection to the withdrawal but, essentially, a request that the aid beneficiaries be ordered to pay the costs relating to the intervention.

42 Accordingly, the Court considers that the fees of NeXovation's lawyers in connection with the withdrawal of the application for leave to intervene can be assessed on an equitable basis at EUR 2 400, that is, 6 hours' work at an hourly rate of EUR 400.

The costs of the present proceedings.

43 With regard to the costs incurred in connection with the present taxation proceedings, in the absence of an assessment by NeXovation of the recoverable costs relating to its observations on the application for taxation of costs lodged by the aid beneficiaries, the Court considers that the costs that are objectively necessary for the protection of its interests can be assessed on an equitable basis at EUR 1 600, that is, 4 hours' work at an hourly rate of EUR 400.

44 In the light of all the foregoing considerations, the costs recoverable by NeXovation can be fixed on an equitable basis at EUR 20 800, which takes account of all the circumstances of the case up to the date of this order.

On those grounds,

THE GENERAL COURT (First Chamber)

hereby orders:

The total amount of costs to be reimbursed by Nürburgring GmbH, Motorsport Resort Nürburgring GmbH and Congress- und Motorsport Hotel Nürburgring GmbH to NeXovation is fixed at EUR 20 800.

Luxembourg, 16 October 2017.