ORDER OF THE GENERAL COURT (Fourth Chamber, Extended Composition)
19 June 2024 (*)
(Procedure – Taxation of costs)
In Case T‑111/20 DEP,
PT Wilmar Bioenergi Indonesia, established in Medan (Indonesia),
PT Wilmar Nabati Indonesia, established in Medan,
PT Multi Nabati Sulawesi, established in North Sulawesi (Indonesia),
represented by A. Nosowicz and P. Vander Schueren, lawyers,
applicants,
v
European Commission,
defendant,
supported by
European Biodiesel Board (EBB), established in Brussels (Belgium), represented by M.‑S. Dibling and G. Symeonidis, lawyers,
intervener,
THE GENERAL COURT (Fourth Chamber, Extended Composition),
composed of R. da Silva Passos, President, S. Gervasoni (Rapporteur), N. Półtorak, I. Reine and T. Pynnä, Judges,
Registrar: V. Di Bucci,
having regard to the judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission (T‑111/20, EU:T:2022:809),
makes the following
Order
1 By its application, based on Article 170 of the Rules of Procedure of the General Court, the intervener, European Biodiesel Board (EBB), asks the Court to fix at EUR 28 146.29 the amount of recoverable costs to be paid by the applicants, PT Wilmar Bioenergi Indonesia, PT Wilmar Nabati Indonesia and PT Multi Nabati Sulawesi, in respect of the costs incurred by the intervener in the proceedings in Case T‑111/20.
Background to the dispute
2 By application lodged at the Court Registry on 19 February 2020 and registered as Case T‑111/20, the applicants brought an action under Article 263 TFEU, seeking the annulment of Commission Implementing Regulation (EU) 2019/2092 of 28 November 2019 imposing a definitive countervailing duty on imports of biodiesel originating in Indonesia (OJ 2019 L 317, p. 42), in so far as that regulation concerns them.
3 The intervener was granted leave to intervene in the proceedings in support of the form of order sought by the Commission.
4 By judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission (T‑111/20, EU:T:2022:809), the Court dismissed the action and ordered the applicants to pay the costs incurred by the intervener.
5 By a letter of 16 March 2023, the intervener informed the applicants that the total amount of recoverable costs was EUR 28 146.29.
6 No agreement was reached between the parties on the amount of recoverable costs.
Forms of order sought
7 The intervener claims, in essence, that the Court should:
– fix the amount of recoverable costs, to be paid by the applicants, at EUR 28 146.29 in respect of the main proceedings;
– fix the amount of recoverable costs, to be paid by the applicants, at EUR 2 500 in respect of the present proceedings;
– order the recoverable costs to bear default interest;
– provide it with an authenticated copy of the order to be made at the end of the present proceedings.
8 The applicants claim, in essence, that the Court should:
– dismiss the intervener’s application;
– in the alternative, fix the amount of recoverable costs at EUR 2 910.33;
– order the intervener to pay the costs of the present proceedings in the amount of EUR 1 000.
Law
The amount of the recoverable costs
9 Under Article 170(3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the Court, at the request of the party concerned, is to give its decision by way of an order from which no appeal may lie, after giving the party concerned by the application an opportunity to submit its observations.
10 According to Article 140(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 to be regarded as recoverable costs. It follows from that provision that recoverable costs are limited to those incurred for the purpose of the proceedings before the General Court and which were necessary for that purpose (see order of 6 March 2003, Nan Ya Plastics and Far Eastern Textiles v Council, T‑226/00 DEP and T‑227/00 DEP, EU:T:2003:61, paragraph 33 and the case-law cited).
11 The intervener seeks, in essence, the reimbursement of lawyers’ fees and travel and subsistence expenses. It claims that the amount of the recoverable costs is EUR 28 146.29 in Case T‑111/20, that is to say, one third of the costs it claims to have incurred in Cases T‑111/20, T‑138/20 and T‑143/20, namely EUR 84 438.89.
The impact of the settlement allegedly reached in Case T‑138/20
12 The applicants submit that, pursuant to a settlement reached between the intervener and the applicant in Case T‑138/20, the intervener had its legal costs exceeding an amount of EUR 8 731 reimbursed, which, according to the applicants, already covers all legal costs in Cases T‑111/20, T‑138/20 and T‑143/20. The applicants request that the Court confirm the existence of that settlement by adopting a measure of organisation of procedure.
13 In that regard, it must be stated that, in Cases T‑111/20, T‑138/20 and T‑143/20, different applicants sought the annulment of Regulation 2019/2092, in so far as that regulation concerns them. The intervener, who was granted leave to intervene in those three cases, was represented by the same lawyers in those cases and provided, as an annex to its application for taxation of costs, fee invoices that are common to the cases in question.
14 Nevertheless, it must be stated that any sum potentially paid to the intervener by the applicant in Case T‑138/20 in respect of costs incurred in that case has, whatever its amount, no impact on the applicants’ obligation to pay the costs incurred by the intervener in Case T‑111/20.
15 Even though the intervener bases its application for taxation of costs on fee invoices from its lawyers that are common to Cases T‑111/20, T‑138/20 and T‑143/20, Cases T‑111/20 and T‑138/20 were not joined for the purposes of the decision closing the proceedings and the applicants’ obligation to pay the costs incurred in Case T‑111/20, as set out in point 2 of the operative part of the judgment of 14 December 2022, PT Wilmar Bioenergi Indonesia and Others v Commission (T‑111/20, EU:T:2022:809), is independent of the obligation of a legal person other than the applicants to pay the costs incurred in Case T‑138/20, as set out in point 2 of the operative part of the judgment of 14 December 2022, PT Ciliandra Perkasa v Commission (T‑138/20, not published, EU:T:2022:810).
16 Accordingly, the argument raised by the applicants must be rejected as ineffective, without there being any need to adopt a measure of organisation of procedure.
The lawyers’ fees
17 It is settled case-law that the Courts of the European Union are 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 applicants (see order of 26 January 2017, Nurburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 10 and the case-law cited).
18 It must also be borne in mind that, in the absence of provisions of EU law relating to tariffs or to the necessary working time, the Court must freely assess the details of the case, taking account of the subject matter and nature of the dispute, its importance from the point of view of EU law and also the difficulties presented by the case, the amount of work which the contentious proceedings generated for the agents or counsel involved, and the economic interests which the dispute represented for the parties (see order of 26 January 2017, Nurburgring v EUIPO – Biedermann (Nordschleife), T‑181/14 DEP, EU:T:2017:41, paragraph 11 and the case-law cited).
19 The amount of recoverable costs in the present case must be determined in accordance with those criteria.
20 In the first place, as regards the subject matter and nature of the dispute, its importance from the point of view of EU law and the difficulties presented by the case, it must be noted that (i) the action sought the annulment of Regulation 2019/2092 imposing a definitive countervailing duty on imports of biodiesel originating in Indonesia, (ii) the applicants raised four pleas in law, three of which were divided into several parts, and (iii) the annexes to the application contained more than 3 500 pages. Furthermore, that action raised new and difficult questions of law, and led the General Court, sitting in extended composition, to clarify the scope of several concepts set out in Regulation (EU) 2016/1037 of the European Parliament and of the Council of 8 June 2016 on protection against subsidised imports from countries not members of the European Union (OJ 2016 L 176, p. 55), as amended by Regulation (EU) 2018/825 of the European Parliament and of the Council of 30 May 2018 (OJ 2018 L 143, p. 1).
21 In the second place, as regards the economic interests at stake, the intervener had a definite interest in the action being dismissed. However, no evidence was submitted to the Court to indicate that the case presented an economic interest of an unusual nature for the intervener (see, to that effect, orders of 15 October 2015, Council v Ningbo Yonghong Fasteners, C‑601/12 P-DEP, not published, EU:C:2015:726, paragraph 23, and of 15 October 2019, PT Pelita Agung Agrindustri v Council, C‑604/16 P-DEP, not published, EU:C:2019:886, paragraph 48).
22 In the third place, as regards the amount of work which the contentious proceedings generated for the intervener’s representatives, it is important to recall that the primary consideration of the Courts of the European Union is the total number of hours of work which may appear to be objectively necessary for the purpose of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question (see order of 29 November 2016, TrekStor v EUIPO – Scanlab (iDrive), T‑105/14 DEP, not published, EU:T:2016:716, paragraph 16 and the case-law cited).
23 As a general rule, the procedural task of an intervener is significantly aided by the work of the main party in support of which it has intervened (see order of 18 April 2006, Euroalliages and Others v Commission, T‑132/01 DEP, not published, EU:T:2006:112, paragraph 32 and the case-law cited).
24 In the present case, the intervener, whose task was aided by the work of the Commission, in support of which it intervened, produced a six-page application to intervene and a 19-page statement in intervention, with numerous annexes, and participated in a hearing lasting half a day and dedicated solely to Case T‑111/20.
25 Furthermore, Case T‑111/20 has similarities with Cases T‑138/20 and T‑143/20, which was liable to save, to some extent, hours of work for the intervener’s representatives in Case T‑111/20 (see, to that effect, order of 10 March 2020, Unitec Bio and Others v Council, T‑111/14 DEP to T‑118/14 DEP, EU:T:2020:99, paragraphs 33 and 34).
26 Moreover, the intervener does not provide details, in the application itself, of the number of work hours that it regards as necessary for the purpose of the proceedings before the Court and refers to fee invoices annexed to the application that are common to Cases T‑111/20, T‑138/20 and T‑143/20. As regards such invoices, it must be borne in mind that they have a purely probative and instrumental function. Therefore, it is not the task of the General Court to search for and identify among those documents the elements that could make up for the lack of precise information and detailed explanations in the application itself (order of 13 February 2008, Verizon Business Global v Commission, T‑310/00 DEP, not published, EU:T:2008:32, paragraph 50).
27 The applicants claim that, after deduction of the time corresponding to non-recoverable costs, it is apparent from the fee invoices annexed to the application that, for Cases T‑111/20, T‑138/20 and T‑143/20, taken together, the intervener’s representatives incurred, (i) for the drafting of the applications to intervene, eight hours charged by a partner and three hours charged by an associate, (ii) for the drafting of the statements in intervention, 31 hours charged by a partner and 24.9 hours charged by two associates, and (iii) for the preparation for and attendance of the hearings, 13 hours charged by a partner, 13.8 hours charged by an associate and 23.45 hours charged by a legal clerk. They submit that that time is excessive and that the time needed for the proceedings before the Court for those cases, taken together, should be set at 16.6 hours charged by a partner and 16 hours charged by an associate.
28 As regards, first of all, the hourly rate, it must be recalled that, in the absence, as EU law currently stands, of a scale in that regard, it is only where the average hourly rate invoiced appears manifestly excessive that the Court may depart from it and fix ex aequo et bono the amount of recoverable fees for lawyers and expert economists (see order of 19 January 2021, Romańska v Frontex, T‑212/18 DEP, not published, EU:T:2021:30, paragraph 39 and the case-law cited).
29 In view of the characteristics of the present case, the Court finds that the rate of up to EUR 945 invoiced by the intervener’s lawyers for certain services appears manifestly excessive and considers it appropriate to reduce it to EUR 400, such a rate appearing to be reasonable for the type of litigation at issue in the present case (see, to that effect, order of 15 October 2019, PT Pelita Agung Agrindustri v Council, C‑604/16 P-DEP, not published, EU:C:2019:886, paragraph 45 and the case-law cited).
30 The taking into account of a high hourly rate appears appropriate only to remunerate the services of professionals who have performed their duties efficiently and rapidly and must, consequently, be counterbalanced by a necessarily strict assessment of the total number of hours’ work necessary for the purposes of the proceedings (see order of 30 April 2018, European Dynamics Belgium and Others v EMA, T‑158/12 DEP, not published, EU:T:2018:295, paragraph 23 and the case-law cited).
31 Next, the hours of work spent by the lawyers instructed by the intervener in the proceedings before the Court do not appear in their entirety to have been ‘necessarily incurred for the purpose of the proceedings’, within the meaning of Article 140(b) of the Rules of Procedure.
32 In particular, as the applicants assert, according to settled case-law, recovery must be refused for costs pertaining to the period subsequent to the oral procedure if no procedural document was adopted after the hearing (see order of 10 April 2014, Éditions Odile Jacob v Commission, T‑279/04 DEP, not published, EU:T:2014:233, paragraph 39 and the case-law cited).
33 As regards the fees for coordinating with the Commission of 4 December 2020, it is settled case-law that fees relating to the coordination of work between the parties are not recoverable unless such coordination was ordered by the Court, which is not the case here (see order of 17 May 2017, VTZ and Others v Council, T‑432/12 DEP, not published, EU:T:2017:397, paragraph 25 and the case-law cited).
34 In the light of the foregoing considerations, the Court deems it fair to decide that, irrespective of the number of lawyers who may have provided the services in question, a total of 25 hours of work were objectively necessary for the purpose of the proceedings before the Court in Case T‑111/20.
35 As the applicants submit, as regards the amounts claimed in respect of value added tax (VAT), it should be noted that, where a natural or legal person is subject to VAT, that person is entitled to recover from the tax authorities VAT paid on goods and services purchased by him or her or it. VAT thus does not represent an expense for that person, with the result that the amounts paid in respect of that tax should not be taken into account for the purpose of calculating the recoverable costs. Consequently, the amount claimed in respect of VAT is regarded as recoverable costs only if the natural or legal person claiming that amount establishes that he or she or it is not subject to VAT (see, to that effect, order of 29 June 2015, Reber v OHIM – Klusmeier (Wolfgang Amadeus Mozart PREMIUM), T‑530/10 DEP, not published, EU:T:2015:482, paragraph 51 and the case-law cited). Since the intervener has not established that it is not subject to VAT, the amount claimed by it in respect of VAT cannot be regarded as recoverable costs.
36 Consequently, the amount of costs recoverable by the intervener in respect of lawyers’ fees must be fixed at EUR 10 000.
Travel and subsistence expenses
37 The intervener states that, in respect of the hearing, his lawyers incurred travel and subsistence expenses which are included in the amount of EUR 28 146.29. It refers to the fee invoices annexed to the application, which are common to Cases T‑111/20, T‑138/20 and T‑143/20, without providing details, in the application itself, regarding those travel and subsistence expenses.
38 It must be stated that the intervener’s advisers incurred travel and subsistence expenses in order to attend a hearing, lasting half a day, on 13 January 2022 in Case T‑111/20 as well as the hearing held on the following day in Cases T‑138/20 and T‑143/20, which were joined for the purposes of the oral part of the procedure.
39 Given that, according to the fee invoices annexed to the application, the total amount of travel and subsistence expenses is EUR 1 293.20 for Cases T‑111/20, T‑138/20 and T‑143/20, it must be stated that those expenses correspond to a rounded amount of EUR 431 for Case T‑111/20 alone.
40 Furthermore, the applicants claim that there is no justification for taking into consideration travel and subsistence expenses incurred by three lawyers, as set out in the fee invoices.
41 In that regard, it must be stated that, except in specific circumstances, the costs of a single adviser may be declared recoverable (see, to that effect, order of 8 October 2014, Coop Nord v Commission, T‑244/08 DEP, not published, EU:T:2014:899, paragraph 33).
42 In those circumstances, it is fair to fix the amount of costs recoverable by the intervener in respect of travel and subsistence expenses at a third of EUR 431, namely, a rounded amount of EUR 143.
The costs relating to the present taxation of costs proceedings
43 According to settled case-law, an application for taxation of costs is of a fairly standardised nature and is characterised, generally, by the absence of any difficulty for the lawyer who has already dealt with the substance of the case (see order of 11 April 2019, Stada Arzneimittel v EUIPO – Urgo recherche innovation et développement (Immunostad), T‑403/16 DEP, not published, EU:T:2019:249, paragraph 32 and the case-law cited).
44 As regards the claim relating to costs incurred by the intervener in the present proceedings, it must be stated that that intervener claims an amount of EUR 2 500, without providing details as regards that amount.
45 The number of hours of work devoted to the present proceedings by the intervener, which submitted a five-page application for taxation of costs, must be fixed at three hours, to which the average hourly rate used for the main proceedings should be applied, with the result that the total amount of EUR 1 200 must be regarded as reasonable to cover the costs connected with the present proceedings (see, to that effect, order of 10 March 2017, Penny-Markt v EUIPO – Boquoi Handels (B!O), T‑364/14 DEP, not published, EU:T:2017:179, paragraph 23).
46 Since the applicants have been unsuccessful in the present proceedings, their claim that the intervener should be ordered to pay the costs of these proceedings must be rejected.
47 It follows that the total amount of recoverable costs must be fixed at EUR 11 343, which takes account of all the circumstances of the case up to the date of this order.
Default interest
48 The intervener requests the Court, in essence, to order the applicants to pay it default interest on the amount of the costs to be reimbursed.
49 According to settled case-law, an application made in the course of proceedings for taxation of costs to add default interest to the amount due must be allowed for the period between the date of notification of the order of taxation of costs and the date of actual recovery of the costs (see order of 27 November 2020, Flabeg Deutschland v Commission, T‑103/15 DEP, not published, EU:T:2020:585, paragraph 60 and the case-law cited).
50 The applicable interest rate is to be calculated, having regard to Article 99(2)(b) of Regulation (EU, Euratom) 2018/1046 of the European Parliament and of the Council of 18 July 2018 on the financial rules applicable to the general budget of the Union, amending Regulations (EU) No 1296/2013, (EU) No 1301/2013, (EU) No 1303/2013, (EU) No 1304/2013, (EU) No 1309/2013, (EU) No 1316/2013, (EU) No 223/2014, (EU) No 283/2014, and Decision No 541/2014/EU and repealing Regulation (EU, Euratom) No 966/2012 (OJ 2018 L 193, p. 1), on the basis of the rate applied by the European Central Bank (ECB) to its principal refinancing operations in force on the first calendar day of the month in which the deadline for payment falls, increased by three and a half percentage points (order of 25 September 2019, Bilbaína de Alquitranes and Others v Commission, T‑689/13 DEP, not published, EU:T:2019:698, paragraph 58).
51 Consequently, the amount of recoverable costs will accrue default interest, from the date of notification of the present order, at the rate calculated on the basis of the rate set by the ECB for the principal refinancing operations applicable during the period concerned, increased by three and a half percentage points.
The request for an authenticated copy of the order for the purposes of enforcement
52 The intervener requests that an authenticated copy of the present order be dispatched to it.
53 In that regard, first, it is sufficient to observe that, in accordance with Article 280 TFEU, the present order is enforceable in the conditions laid down in Article 299 TFEU. Second, even though Article 170(4) of the Rules of Procedure expressly gives the parties the right to request an authenticated copy of the order for the purposes of enforcement, there is no need to give a formal ruling on that request as it is purely a matter of administration and falls outside the subject matter of the present dispute concerning taxation of the parties’ recoverable costs (see, to that effect, order of 6 June 2019, Damm v EUIPO – Schlossbrauerei Au, Willibald Beck Freiherr von Peccoz (EISKELLER), T‑859/16 DEP, not published, EU:T:2019:402, paragraph 32 and the case-law cited).
On those grounds,
THE GENERAL COURT (Fourth Chamber, Extended Composition)
hereby orders:
1. The total amount of the costs to be reimbursed by PT Wilmar Bioenergi Indonesia, PT Wilmar Nabati Indonesia and PT Multi Nabati Sulawesito European Biodiesel Board (EBB) is fixed at EUR 11 343.
2. That amount shall bear default interest from the date of notification of the present order until the date on which payment is made.
Luxembourg, 19 June 2024.
V. Di Bucci | | R. da Silva Passos |