(Taxation of costs)

Summary of the Order

Procedure – Costs – Taxation – Recoverable costs – Definition – Matters to be taken into account

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

As Community law does not contain any provisions laying down a scale of fees, the Court must, when called upon to tax expenses, 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 para. 17)

ORDER OF THE COURT (First Chamber) 8 July 2004(1)

(Taxation of costs)

In Case C-286/95 P-DEP,

Imperial Chemical Industries plc (ICI), represented by S. Berwick, Solicitor,

applicant,

Commission of the European Communities, represented by J. Currall, acting as Agent,

APPLICATION for taxation of recoverable costs following the judgment of the Court of 6 April 2000 in Case C-286/95 P Commission v ICI [2000] ECR I-2341,

THE COURT (First Chamber),

composed of: P. Jann (Rapporteur), President of the Chamber, J.N. Cunha Rodrigues, N. Colneric, E. Juhász and E. Levits, Judges,

Advocate General: C. Stix-Hackl, Registrar: R. Grass,

after hearing the Advocate General, makes the following

Judgment

1 This request for a preliminary ruling concerns the interpretation of Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment (OJ 2012 L 26, p. 1), as amended by Directive 2014/52/EU of the European Parliament and of the Council of 16 April 2014 (OJ 2014 L 124, p. 1) (‘Directive 2011/92’).

2 The request has been made in proceedings between, on the one hand, Waltham Abbey Residents Association and, on the other hand, An Bord Pleanála (Planning Board, Ireland; ‘the Board’), Ireland and the Attorney General (Ireland), concerning authorisation granted by the Board for a strategic residential housing development.

Legal context

European Union law

Directive 2011/92

Recitals 7 to 9 of Directive 2011/92 state:

‘(7) Development consent for public and private projects which are likely to have significant effects on the environment should be granted only after an assessment of the likely significant environmental effects of those projects has been carried out. …

(8) Projects belonging to certain types have significant effects on the environment and those projects should, as a rule, be subject to a systematic assessment.

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(9) Projects of other types may not have significant effects on the environment in every case and those projects should be assessed where the Member States consider that they are likely to have significant effects on the environment.’

Article 2(1) of that directive provides:

‘Member States shall adopt all measures necessary to ensure that, before development consent is given, projects likely to have significant effects on the environment by virtue, inter alia, of their nature, size or location are made subject to a requirement for development consent and an assessment with regard to their effects on the environment. Those projects are defined in Article 4.’

Under Article 3(1) of that directive:

‘The environmental impact assessment shall identify, describe and assess in an appropriate manner, in the light of each individual case, the direct and indirect significant effects of a project on the following factors:

…

(b) biodiversity, with particular attention to species and habitats protected under [Council Directive 92/43/EEC of 21 May 1992 on the conservation of natural habitats and of wild fauna and flora (OJ 1992 L 206, p. 7), as amended by Council Directive 2013/17/EU of 13 May 2013 (OJ 2013 L 158, p. 193) (“Directive 92/43”)] and Directive 2009/147/EC [of the European Parliament and of the Council of 30 November 2009 on the conservation of wild birds (OJ 2010 L 20, p. 7)];

…’

Article 4 of Directive 2011/92 provides:

‘1. Subject to Article 2(4), projects listed in Annex I shall be made subject to an assessment in accordance with Articles 5 to 10.

(a) a case-by-case examination;

(b) thresholds or criteria set by the Member State.

Member States may decide to apply both procedures referred to in points (a) and (b).

Where a case-by-case examination is carried out or thresholds or criteria are set for the purpose of paragraph 2, the relevant selection criteria set out in Annex III shall be taken into account. Member States may set thresholds or criteria to determine when projects need not undergo either the determination under paragraphs 4 and 5 or an environmental impact assessment, and/or thresholds or criteria to determine when projects shall in any case be made subject to an environmental impact assessment without undergoing a determination set out under paragraphs 4 and 5.

Where Member States decide to require a determination for projects listed in Annex II, the developer shall provide information on the characteristics of the project and its likely significant effects on the environment. The detailed list of information to be provided is specified in Annex IIA. The developer shall take into account, where relevant, the available results of other relevant assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The developer may also provide a description of any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

The competent authority shall make its determination, on the basis of the information provided by the developer in accordance with paragraph 4 taking into account, where relevant, the results of preliminary verifications or assessments of the effects on the environment carried out pursuant to Union legislation other than this Directive. The determination shall made available to the public and:

(a) where it is decided that an environmental impact assessment is required, state the main reasons for requiring such assessment with reference to the relevant criteria listed in Annex III; or

(b) where it is decided that an environmental impact assessment is not required, state the main reasons for not requiring such assessment with reference to the relevant criteria listed in Annex III, and, where proposed by the developer, state any features of the project and/or measures envisaged to avoid or prevent what might otherwise have been significant adverse effects on the environment.

Member States shall ensure that the competent authority makes its determination as soon as possible and within a period of time not exceeding 90 days from the date on which the developer has submitted all the information required pursuant to paragraph 4. In exceptional cases, for instance relating to the nature, complexity, location or size of the project, the competent authority may extend that deadline to make its determination; in that event, the competent authority shall inform the developer in writing of the reasons justifying the extension and of the date when its determination is expected.’

Annex II.A of that directive contains the list of ‘information to be provided by the developer on the projects listed in Annex II’. That list reads as follows:

‘1. A description of the project, including in particular:

(a) a description of the physical characteristics of the whole project and, where relevant, of demolition works;

(b) a description of the location of the project, with particular regard to the environmental sensitivity of geographical areas likely to be affected.

3. A description of any likely significant effects, to the extent of the information available on such effects, of the project on the environment resulting from:

(a) the expected residues and emissions and the production of waste, where relevant;

(b) the use of natural resources, in particular soil, land, water and biodiversity.

Annex III to that directive sets out the ‘criteria to determine whether the projects listed in Annex II should be subject to an environmental impact assessment’.

Directive 2014/52

Recitals 11 and 29 of Directive 2014/52 state:

‘(11) The measures taken to avoid, prevent, reduce and, if possible, offset significant adverse effects on the environment, in particular on species and habitats protected under [Directive 92/43] and Directive 2009/147 …, should contribute to avoiding any deterioration in the quality of the environment and any net loss of biodiversity, in accordance with the [European] Union’s commitments in the context of the [United Nations Convention on Biological Diversity, signed in Rio de Janeiro on 5 June 1992,] and the objectives and actions of the Union Biodiversity Strategy up to 2020 laid down in the [Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions] of 3 May 2011 entitled ‘Our life insurance, our natural capital: an EU biodiversity strategy to 2020’ [(COM(2011) 244 final)]

…

(29) When determining whether significant effects on the environment are likely to be caused by a project, the competent authorities should identify the most relevant criteria to be considered and should take into account information that could be available following other assessments required by Union legislation in order to apply the screening procedure effectively and transparently. In this regard, it is appropriate to specify the content of the screening determination, in particular where no environmental impact assessment is required. Moreover, taking into account unsolicited comments that might have been received from other sources, such as members of the public or public authorities, even though no formal consultation is required at the screening stage, constitutes good administrative practice.’

Directive 92/43

Article 6(3) of Directive 92/43 provides:

‘Any plan or project not directly connected with or necessary to the management of the site but likely to have a significant effect thereon, either individually or in combination with other plans or projects, shall be subject to appropriate assessment of its implications for the site in view of the site’s conservation objectives. In the light of the conclusions of the assessment of the implications for the site and subject to the provisions of paragraph 4, the competent national authorities shall agree to the plan or project only after having ascertained that it will not adversely affect the integrity of the site concerned and, if appropriate, after having obtained the opinion of the general public.’

Article 12(1) of that directive provides:

‘Member States shall take the requisite measures to establish a system of strict protection for the animal species listed in Annex IV(a) in their natural range, prohibiting:

(a) all forms of deliberate capture or killing of specimens of these species in the wild;

(b) deliberate disturbance of these species, particularly during the period of breeding, rearing, hibernation and migration;

(c) deliberate destruction or taking of eggs from the wild;

(d) deterioration or destruction of breeding sites or resting places.’

Point (a) of Annex IV to that directive mentions ‘all species’ of bats belonging to the suborder of ‘microchiroptera’.

Irish law

Under Article 73(b) of the Rules of Procedure, ‘expenses necessarily incurred by the parties for the purposes 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.

As 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 agents and advisers involved and the financial interest which the parties had in the proceedings (see, inter alia, order of 30 November 1994 in Case C-294/90 DEP British Aerospace v Commission [1994] ECR I-5423, paragraph 13, and order of 17 February 2004 in Case C‑321/99 P-DEP DAI v ARAP and Others, not published in the European Court Reports, paragraph 16).

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

As regards the financial interest which the parties had in the proceedings, there can be no doubt that the case was of considerable financial importance for ICI, having regard to the amount of the fine imposed on it by the Commission in relation to the allegation of an abuse of a dominant position.

As regards the purpose and nature of the proceedings, it should be noted that the case involved appeal proceedings which are by definition limited to questions of law and do not involve findings as to fact.

In this case, the issues on appeal to which ICI required to respond related to two questions of law.

The first involved the authentication of acts under the first paragraph of Article 12 of the Commission’s Rules of Procedure. In Commission v ICI the Court held, on the basis of its judgment in Commission v BASF and Others, that authentication constitutes an essential procedural requirement within the meaning of Article 230 EC, breach of which may give rise to an application for annulment. Furthermore, authentication must occur before the act in question is notified to the parties concerned. The second question on appeal was whether a failure to authenticate may be raised by the Community judicature on its own motion. The Court replied to that question in the affirmative.

It is true that those two very narrow questions are significant from the point of view of Community law. However, the first had essentially already been decided in Commission v BASF and Others, and the second was not a particularly complicated one. Nor were the difficulties presented by the case exceptional in nature.

As regards the amount of work generated by the dispute for ICI’s advisers, it should be pointed out that they drafted two pleadings relating to the narrow questions referred to above in response to those of the Commission. In addition, the hearing before the Court of 7 October 1999 lasted approximately two hours. The workload imposed on those advisers thus represents a case of some, but not exceptional importance.

In those circumstances, the fees and expenses of counsel proposed by ICI and amounting to GBP 70 644 (GBP 22 901 and GBP 25 226 for senior counsel and GBP 12 459 and GBP 10 058 for junior counsel) were not objectively necessary for the defence of that company’s interests in the appeal.

As regards more particularly the expenses incurred through the use of two counsel, it should be pointed out that the proceedings on appeal were limited to two very specific legal issues which were not connected with the findings of fact which the Court of First Instance required to make. Furthermore, those findings were of greater importance to the proceedings concerning the infringement of the rules relating to concerted practices than to those relating to the abuse of a dominant position, which was the sole issue on appeal. The incurral of fees relating to the second counsel, on the ground that he was particularly familiar with the proceedings at first instance and the factual aspects of the case, was thus not essential. To ask the Commission to meet those fees is accordingly not justified.

In the light of all those matters and having regard to the criteria referred to in paragraph 17 of this order, the recoverable fees and expenses of counsel must be fixed at GBP 25 000.

As regards the sum of GBP 2 010 for the travel and subsistence expenses of the two counsel and two in-house solicitors incurred in arranging three meetings in Brussels, ICI has not offered any explanation to the Court as to either the nature of those meetings, or their necessity for the purposes of the appeal proceedings or the need to conduct those meetings in Brussels. That amount cannot therefore be accepted.

With respect to the travel and accommodation expenses for the hearing before the Court, which ICI sought to recover for the two counsel and the two in-house solicitors, these should be allowed in respect of only one counsel, as the presence of the second counsel was not essential for the same reasons as are set out in paragraph 26 of this order, and only one in-house solicitor, that is to say a total of GBP 936.50. There should be added to that amount the costs of having an address for service in Luxembourg, namely GBP 894. The hiring of a conference room for GBP 1 488.99 cannot, though, be accepted, as that was not necessary expenditure.

In the light of all the foregoing considerations, the costs recoverable in Case C‑286/95 P can be assessed on an equitable basis at GBP 26 830.50.

On those grounds,

hereby orders:

The total costs to be reimbursed by the Commission of the European Communities to Imperial Chemical Industries plc (ICI) in Case C-286/95 P are fixed at GBP 26 830.50.

Luxembourg, 8 July 2004.

Registrar

President of the First Chamber

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Language of the case: English.