Provisional text
ORDER OF THE GENERAL COURT (Fourth Chamber)
17 May 2017 (*)
(Procedure — Taxation of costs)
In Case T‑633/11 DEP,
Guangdong Kito Ceramics Co. Ltd, established in Foshan (China),
Jingdezhen Kito Ceramic Co. Ltd, established in Jingdezhen (China),
Jingdezhen Lehua Ceramic Sanitary Ware Co. Ltd, established in Jingdezhen,
Zhaoqing Lehua Ceramic Sanitary Ware Co. Ltd, established in Sihui (China),
represented by M. Sánchez Rydelski, lawyer,
applicants,
v
Council of the European Union, represented by J.-P. Hix, acting as Agent,
defendant,
supported by
European Commission,
and by
Cerame-Unie AISBL, established in Brussels (Belgium),
Asociación Española de Fabricantes de Azulejos y Pavimentos Cerámicos (ASCER), established in Castellón de la Plana (Spain),
Confindustria Ceramica, established in Sassuolo (Italy),
Casalgrande Padana SpA, established in Casalgrande (Italy),
Etruria Design Srl, established in Modena (Italy),
interveners,
APPLICATION for taxation of costs by the Council following the judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council (T‑633/11, not published, EU:T:2014:271),
THE GENERAL COURT (Fourth Chamber),
composed of H. Kanninen, President, J. Schwarcz (Rapporteur) and C. Iliopoulos, Judges,
Registrar: E. Coulon,
makes the following
Order
Facts, procedure and forms of order sought
1 By application lodged at the Court Registry on 8 December 2011, the applicants, Guangdong Kito Ceramics Co. Ltd, Jingdezhen Kito Ceramic Co. Ltd, Jingdezhen Lehua Ceramic Sanitary Ware Co. Ltd and Zhaoqing Lehua Ceramic Sanitary Ware Co. Ltd, brought an action seeking the annulment of Council Implementing Regulation (EU) No 917/2011 of 12 September 2011 imposing a definitive anti-dumping duty and collecting definitively the provisional duty imposed on imports of ceramic tiles originating in the People’s Republic of China (OJ 2011 L 238, p. 1), insofar as it relates to them.
2 By judgment of 22 May 2014, Guangdong Kito Ceramics and Others v Council (T‑633/11, not published, EU:T:2014:271), the General Court dismissed the action and ordered the applicants to bear their own costs and to pay those incurred by the Council of the European Union.
3 By letter of 25 September 2015, the Council claimed the sum of EUR 67 172.60 from the applicants, to be paid by 24 October 2014 at the latest, in respect of the recoverable costs incurred in the proceedings before the General Court. That amount related to EUR 66 920.20 in external lawyers’ fees of the Council, and to EUR 252.40 by way of disbursements.
4 On 5 February 2015, having received no response to its letter, the Council sent the applicants a first reminder. It also stated, on the one hand, that default interest at a rate of 3.55% was to be added to the amount of EUR 67 172.60 from 25 October 2014, and on the other, that, should payment of that amount not be made immediately, recovery proceedings would have to be brought.
5 A second reminder was sent to the applicants on 10 April 2015.
6 By letter of 20 July 2016, the Council revised its claim for reimbursement of costs by sending the applicants a credit note in the amount of EUR 1 896.90. The total amount claimed by the Council in the claim for costs was therefore EUR 65 275.70.
7 The applicants having failed to respond to that letter, the Council, by document lodged with the Court Registry on 14 October 2016, and in accordance with Article 170(1) of the Rules of Procedure of the General Court, made the present application for taxation of costs, by which it requests the Court to set at EUR 65 275.70 the amount of costs recoverable and apply default interest to that amount, for the period from 25 October 2014 until the date of actual payment of the total amount of the costs, at the rate of 3.55%.
8 The applicants did not lodge any comments on that application within the time limit prescribed.
Law
9 Under Article 170(3) of the Rules of Procedure, if there is a dispute concerning the costs to be recovered, the General Court hearing the case, on application by the party concerned and after hearing the opposite party, is to make an order, from which no appeal is to lie.
10 Under Article 140(b) of the Rules of Procedure, the expenses necessarily incurred by the parties for the purposes of the proceedings are regarded as recoverable costs, in particular the travel and subsistence expenses and the remuneration of agents, advisers or lawyers. According to the settled case-law on Article 91(b) of the Rules of Procedure of the General Court of 2 May 1991, the content of which is identical to that of Article 140(b) of the Rules of Procedure, it follows from that provision that recoverable costs are limited, first, to those incurred for the purpose of the proceedings before the General Court and, second, to those which were necessary for that purpose (see order of 28 June 2004, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 13 and the case-law cited).
11 It is also clear from settled case-law that the Court is not empowered to tax the fees payable by the parties to their own lawyers, but it may determine the amount of those fees which may be recovered from the party ordered to pay the costs. When ruling on an application for taxation of costs, the General Court is not obliged to take account of any national scale of lawyers’ fees or any agreement in that regard between the party concerned and his agents or advisers (see order of 28 June 1994, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 17 and the case-law cited).
12 In the absence of provisions of EU 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 EU law as well as the difficulties presented by the case, the amount of work generated by the case for the agents or advisers involved and the financial interest which the parties had in the proceedings (see order of 28 June 1994, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 18 and the case-law cited).
13 It is for the applicant to produce supporting documents that establish the existence of the expenses in respect of which reimbursement is sought (see order of 8 July 2004, De Nicola v EIB, T‑7/98 DEP, T‑20/98 DEP and T‑109/99 DEP, EU:T:2004:217, paragraph 42). Whilst the absence of such information does not prevent the Court from fixing, on the basis of an equitable assessment, the amount of recoverable costs, it none the less places it in a situation where its assessment of the applicant’s claims must necessarily be strict (order of 28 May 2013, Marcuccio v Commission, T‑278/07 P‑DEP, EU:T:2013:269, paragraph 16 and the case-law cited).
14 In fixing the recoverable costs, the Court is required to take account of all the circumstances of the case up to the making of the order on taxation of costs, including expenses necessarily incurred in relation to the taxation of costs proceedings (order of 28 May 2013, Marcuccio v Commission, T‑278/07 P‑DEP, EU:T:2013:269, paragraph 13 and the case-law cited).
15 It is on the basis of those factors that the amount of recoverable costs in this case should be determined.
The amount of lawyers’ fees which are recoverable
16 First of all, having regard to the purpose and the nature of the proceedings, their significance from the point of view of EU law and the difficulties presented by the case, it should be noted that the case in the main proceedings relates to an application for annulment in anti-dumping proceedings which can be broken down, in essence, into three pleas in law. The first plea alleged infringement of Article 18(1) and (3) of Council Regulation (EC) No 1225/2009 of 30 November 2009 on protection against dumped imports from countries not members of the European Community, the second alleged an infringement of the obligation to state reasons, and the third an infringement of the principles of sound administration and transparency, of the rights of the defence, and of Article 20(2) and Article 18(4) of that regulation.
17 It must be stated that despite the complex factual context and the relatively technical legal context of the dispute, and the fact that the Court was required in the context of the first plea to specify the conditions of application of Article 18(1) and (3) of Regulation No 1225/2009, the degree of legal difficulty of the questions of law raised by the case in the main proceedings cannot be described as particularly significant, since the pleas referred to in the previous paragraph were rejected in accordance with well-established principles. The case must therefore be regarded as having an average degree of difficulty and as not being of particular significance from the point of view of EU law as a whole.
18 Secondly, having regard to the financial interest that the parties had in the proceedings, it should be noted that in the absence of comments on their part, while the case was of significant financial interest, that financial interest cannot be regarded as being unusual, or significantly different from that which underlies all investigation procedures imposing or maintaining anti-dumping duties (see, to that effect, order of 12 January 2016, Dashiqiao Sanqiang Refractory Materials v Council, T‑423/09 DEP, not published, EU:T:2016:14, paragraph 22).
19 Thirdly, having regard to the workload of the Council which resulted from the proceedings, that institution claimed the amount of EUR 66 920.20, revised to a figure of EUR 65 023.30, by way of legal fees incurred. The fee notes were submitted together with records of the hours worked broken down into the specific tasks carried out. For the whole of the proceedings before the General Court, its four external lawyers billed the Council a total of 193.1 hours.
20 In that regard, it must be borne in mind that the primary consideration of the Court is the total number of hours worked which appear to have been objectively necessary for the purposes of the proceedings before the Court, irrespective of the number of lawyers who may have provided the services in question. Furthermore, the ability of the EU judicature to assess the value of the work carried out is dependent on the accuracy of the information provided (see order of 28 June 1994, Airtours v Commission, T‑342/99 DEP, EU:T:2004:192, paragraph 30 and the case-law cited).
21 It is apparent from the fee notes produced by the Council and from the file in the main proceedings that the tasks of its external lawyers in respect of the written phase of the proceedings included, in essence, the analysis of a 30-page application, together with 82 pages of annexes, correspondence between the parties’ representatives and with the Commission and Council, the drafting of the 30-page defence, the review of the 21-page reply, the drafting of the 14-page rejoinder, and the review of the 10-page observations of the interveners representing the Union industry. A total of 132 hours were billed for the written phase of the proceedings. In respect of the oral phase of the proceedings, the 61.1 hours billed concerned, in particular, the preparation of oral argument and participation in the hearing. It is also apparent from the file that the time billed for the services of partners amounted to 52.5 hours and that billed for the services of their associates to 140.6 hours.
22 However, that number of hours worked appears excessive given the characteristics of the case in the main proceedings, as set out in paragraphs 16 to 18 above and the scope of work actually carried out.
23 First of all, the costs corresponding to the time spent by new external lawyers in making themselves familiar with the file are not recoverable (see order of 15 March 2000, Enso-Gutzeit v Commission, T‑337/94 (92), EU:T:2000:76, paragraph 21). In the present case, the Council in fact changed its external representatives during the proceedings. Therefore, after reviewing the fee notes and the description of the tasks carried out, it appears that a large part of the hours billed from 26 September to 1 October 2013 was devoted to the Council’s new lawyers becoming familiar with the file. The time devoted during those days to the new lawyers’ becoming familiar with the file may be assessed on an equitable basis, in the present case, at 17 hours. Those hours must therefore be deducted from the total number of hours objectively required for the purposes of the case in the main proceedings.
24 Next, with respect to the allocation of the legal work, the simultaneous intervention of several lawyers necessarily involves some duplication of effort (see order of 8 October 2008, CDA Datenträger Albrechts v Commission, T‑324/00 DEP, not published, EU:T:2008:413, paragraph 91), with the result that the Court cannot accept the totality of the hours of work claimed. Thus, a large part of the time billed on 22 and 23 February 2012, on 4 April 2012, on 26 June 2012, on 2 July 2012, on 15 and 16 October 2013, and which may be assessed at 26.4 hours in respect of the review by the partner of the work carried out by his associate and in respect of the reiterationof various tasks which had or should already have been carried out, appears to be a duplication which must be deducted from the objectively justified number of hours worked.
25 Finally, the fees of the Council’s lawyers relating to the coordination of the work with the Commission are excluded from the recoverable costs, since such coordination was not ordered by the Court (see order of 12 December 2008, Endesa v Commission, T‑417/05 DEP, not published, EU:T:2008:570, paragraph 47). Thus, part of the time billed on 12, 13 and 31 January 2012, 1 and 8 February 2012, 9 March 2012, 19 April 2012, 8 May 2012, and between 30 September and 2 October 2013, which may be assessed at 17 hours, must be deducted from the objectively justified number of hours worked.
26 The remaining number of hours billed, namely 132.7, comprised of 101.1 hours in respect of the written phase of the proceedings and 31.6 hours in respect of the oral phase, and corresponding to 22.7 hours in respect of partners’ fees and 110 hours in respect of their associates’ fees, still appears to be excessive given the characteristics of the case in the main proceedings, as set out in paragraphs 16 to 18 above and the scope of work actually carried out. A fair assessment of the objectively necessary number of legal hours worked may be made by reducing that number of hours by 30% (see, to that effect, order of 9 February 2011, Grain Millers v OHIM, T‑429/08 DEP, not published, EU:T:2011:35, paragraph 50). It is therefore appropriate to hold that the objectively necessary number of legal hours worked by the partner is 15.89 hours, and that of his associate 77 hours.
27 As regards the hourly rate for the Council’s external lawyers, it is clear from the case-law that, as claimed by the applicants, the rate claimed for the services provided by the two partners, namely EUR 489 per hour, exceeds what may be regarded as appropriate by way of remuneration for the services of a particularly experienced professional capable of working very efficiently and quickly. Having regard to the characteristics of the case in the main proceedings, as set out in paragraphs 16 to 18 above, the hourly rate claimed for partners should not exceed EUR 400. Moreover, the taking into account of such a high level of remuneration must be counterbalanced by a necessarily strict evaluation of the total number of hours of work needed for the purposes of the proceedings (see, to that effect, order of 17 October 2008, Infront WM v Commission, T‑33/01 DEP, not published, EU:T:2008:449, paragraph 31 and the case-law cited).
28 As to the partners’ associates, the characteristics of the present dispute, as assessed in paragraphs 16 to 18 above, do not justify an hourly rate greater than EUR 240 per hour.
29 In the light of the foregoing, the General Court sets the amount of recoverable costs in respect of legal fees at EUR 24 836, which takes into account all the circumstances of the case up to the date of the adoption of the present order.
The disbursements
30 The Council also claims repayment of travel and subsistence expenses in the amount of EUR 190.60, postage costs of EUR 39.75, and photocopying costs of EUR 22.05, which amounts to a total of EUR 252.40.
31 Having regard, first of all, to the travel and subsistence expenses, while it is true that, apart from a document relating to the settlement of the mission expenses of its agent, prepared by the Council itself, the Council has produced no documentary evidence showing that those expenses were genuine, the amount claimed does not appear unreasonable for a return trip by train from Brussels to Luxembourg and for an overnight stay in Luxembourg. Therefore, the amount of EUR 190.60 can be held to be a recoverable expense (see, to that effect, order of 14 July 2015, Ntouvas v ECDC, T‑223/12 DEP, not published, EU:T:2015:570, paragraph 28).
32 As regards, secondly, the postage and photocopying costs, the Court finds that that amount is not excessive, having regard, in particular, to Article 43(1) of the Rules of Procedure of 2 May 1991, which states that the original of every pleading, accompanied by all annexes referred to therein, is to be lodged together with five copies for the General Court and a copy for every other party to the proceedings (see, to that effect, order of 9 February 2011, Grain Millers v OHIM, T‑429/08 DEP, not published, EU:T:2011:35, paragraph 52).
33 It follows from all of the above that the total amount of recoverable expenses for disbursements is EUR 252.40.
Late payment interest
34 The Commission requests the Court to order that interest be added to the amount of recoverable costs at the rate of 3.55% to be calculated from the date of 25 October 2014 until the date on which the total amount of costs is repaid.
35 In that regard, it should be noted that the finding of any obligation to pay default interest and the setting of the applicable rate are matters which come within the powers of the Court under Article 170(1) and (3) of the Rules of Procedure (see the order of 11 January 2016, Marcuccio v Commission, T‑238/11 P‑DEP, not published, EU:T:2016:13, paragraph 30 and the case-law cited).
36 The Council’s request must be upheld in so far as it seeks the setting of default interest for the period between the date of service of the present order and the date of the actual reimbursement of the costs (see order of 16 October 2014, Since Hardware (Guangzhou) v Council, T‑156/11 DEP, not published, EU:T:2014:930, paragraph 42 and the case-law cited).
37 With regard to the applicable rate of interest, the General Court considers it appropriate to take into account Article 83(2)(b) of Commission Delegated Regulation (EU) No 1268/2012 of 29 October 2012 on the rules of application of Regulation (EU, Euratom) No 966/2012 of the European Parliament and of the Council on the financial rules applicable to the general budget of the Union (OJ 2012 L 362, p. 1). Consequently, the applicable rate is to be calculated on the basis of the rate applied by the ECB to its principal refinancing operations and in force on the first calendar day of the month in which the payment date falls, increased by 3.5 percentage points (order of 16 January 2014, Marcuccio v Commission, T‑450/10 P‑DEP, not published, EU:T:2014:32, paragraph 47).
38 On the basis of all of the foregoing, the total costs recoverable by the Council may be assessed on an equitable basis at EUR 25 088.40, to which amount default interest will be added from the date of service of the present order up to the date of payment of the total amount owed.
On those grounds,
THE GENERAL COURT (Fourth Chamber),
hereby orders:
1. The total amount of costs to be reimbursed by Guangdong Kito Ceramics, Jingdezhen Kito Ceramic, Jingdezhen Lehua Ceramic Sanitary Ware, and Zhaoqing Lehua Ceramic Sanitary Ware, to the Council of the European Union is set at EUR 25 088.40.
2. That sum shall bear default interest from the date of service of the present order up to the date of payment.
Luxembourg, 17 May 2017.